1411506 (Refugee)

[2015] AATA 3870

1411506 (Refugee) [2015] AATA 3870 (1 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1411506

COUNTRY OF REFERENCE:                  China

MEMBER:Katie Malyon

DATE:1 December 2015

PLACE OF DECISION:  Sydney

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

Statement made on 01 December 2015 at 1:22pm

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).

2. A citizen of China from Hebei Province, [the applicant] applied for the visa [in] January 2014.  The delegate refused to grant the visa [in] June 2014.  Having arrived in Australia [in] June 2013 as the holder of a Visitor 600 visa [the applicant] remained in Australia for 4½ months as an unlawful non-citizen after his 3 month Visitor visa expired [in] September 2013.

3. [The applicant] appeared before the Tribunal on 24 November 2014 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.  Although represented by registered migrant agent [name], [the applicant]’s representative did not attend the hearing.

4. The issues in this case are as follows:

   ·are [the applicant]’s claims credible; and,

   ·if so, whether [the applicant] is entitled to a Protection visa, either as a refugee or on complementary protection grounds.

   RELEVANT LAW

5. The criteria for a Protection visa are set out in s.36 of the Act and Schedule 2 of the Migration Regulations 1994 (the Regulations).  An applicant for the visa must meet one of the alternative criteria set out in s.36(2)(a), (aa), (b) or (c) of the Act:  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.  These requirements are outlined below.

   Refugee criterion

6. Section 36(2)(a) of the Act provides that a criterion for a Protection visa is that the applicant 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).

7. 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.”[1]

   [1] See, for example, Chan Yee Kin v MIEA (1989) 169 CLR 379, Applicant A v MIEA (1997) 190 CLR 225, MIEA v Guo (1997) 191 CLR 559, Chen Shi Hai v MIMA (2000) 201 CLR 293, MIMA v Haji Ibrahim (2000) 204 CLR 1, MIMA v Khawar (2002) 210 CLR 1, MIMA v Respondents S152/2003 (2004) 222 CLR 1, Applicant S v MIMA (2004) 217 CLR 387, Appellant S395/2002 v MIMA (2003) 216 CLR 473, SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51

8. Section 36(2)(a) of the Act provides that a criterion for a Protection visa is that the applicant 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).

9. There are four key elements to the Convention definition.  First, an applicant must be outside his or her country.

10. Second, an applicant must fear persecution. Section 91R(1) of the Act provides that persecution must involve ‘serious harm’ to the applicant,[2] and systematic and discriminatory conduct.[3]  Examples of ‘serious harm’ are set out in s.91R(2) of the Act and include physical harassment of the person, physical ill-treatment of the person and denial of access to basic services where the denial threatens the person’s capacity to subsist.  The High Court has explained that persecution may be directed against a person as an individual or as a member of a group, such as a member of a family group.[4]  The persecution must have an official quality, in the sense that it is official, or be officially tolerated or uncontrollable by the authorities of the country of nationality.  However, the threat of harm need not be the product of government policy: it may be enough that the government has failed, or is unable, to protect the applicant from persecution.  Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm.  People are persecuted for something perceived about them or attributed to them by their persecutors.

    [2] s.91R(1)(b) of the Act

    [3] s.91R(1)(c) of the Act

    [4] Chan Yee Kin v MIEA (1989) 169 CLR 379 per Mason CJ at [14 – 15], Gaudron J at [20], McHugh J at [41]

11. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition:  race, religion, nationality, membership of a particular social group or political opinion.  The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution.  Further, the persecution feared need not be solely attributable to a Convention reason.  However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared.[5]

    [5] s.91R(1)(a) of the Act

12. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear.  This adds an objective requirement to the requirement that an applicant must in fact hold such a fear.  A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason.  The High Court has stated that a ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility.  A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[6]

    [6] Chan Yee Kin v MIEA (1989) 169 CLR 379 per Mason CJ at [12], McHugh J at [35]

13. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence.  The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad.  Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

    Complementary protection criterion

14. An applicant for a Protection visa who does not meet the refugee criterion in s.36(2)(a) of the Act may nevertheless meet criteria for grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm (‘the complementary protection criterion’).[7]  The Full Federal Court has held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the context of the refugee criterion referred to above.[8]

    [7] s.36(2)(aa) of the Act

    [8] MIAC v SZQRB [2013] 210 FCR 505

15. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A) of the Act.[9]  A person will suffer significant harm if: he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or the person will be subjected to cruel or inhuman treatment or punishment; or the person will be subjected to degrading treatment or punishment.  The terms ‘cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’ are further defined in s.5(1) of the Act and extracted in the Annexure to this decision.

    [9] s.5(1) of the Act

16. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country.  These arise in circumstances where:  it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or, where the real risk is one faced by the population of the country generally and is not faced by the applicant personally.[10]

    [10] s.36(2B) of the Act

    Section 499 Ministerial Direction

17. 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 and Border Protection (the Department) in its PAM3 Protection visas - Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines as well as 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. 

    Credibility

18. The United Nations Human Rights Commission has recognised the difficulties of proof faced by applicants for refugee status.[11]  In particular, there may be claims that are not susceptible of proof.  Moreover, the courts have accepted that in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for.[12] However, the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the fear asserted or that it is ‘well-founded’, or that it is for the reason claimed.  It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[13]  It is the applicant’s responsibility to specify all particulars of his claims and to provide the Tribunal with sufficient evidence to establish his claims.[14]  

    [11] UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relation to the Status of Refugees 1992 at paras [196 - 197]

    [12] Randhawa v MILGEA (1994) 52 FCR 437, Beaumont J at [21]

    [13] MIEA v Guo & Anor (1997) 191 CLR 559 at 596

    [14] s.5AAA(1) of the Act

19. In this regard, the Tribunal is not required to accept uncritically any or all the claims made by an applicant.[15]  Nor is the Tribunal required to make the applicant's case for him.[16]  In addition, the Tribunal is not obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality.[17]  It is legitimate for the Tribunal to take into account any delay in the lodging of a Protection visa application by an applicant in assessing the genuineness, or at least the depth, of an applicant’s claim to fear persecution.[18]

    CONSIDERATION OF CLAIMS AND EVIDENCE

    [15] Randhawa  v MILGEA (1994) 52 FCR 437 at 451

    [16] s.5AAA(4) of the Act.  See also Prasad v MIEA (1985) 6 FCR 155 at 169 –170; Luu & Anor v Renevier (1989) 91 ALR 39 at 45

    [17] Kopalapillai v MIMA (1998) 86 FCR 547

    [18] Selvadurai v MIEA & Anor (1994) 34 ALD 347, Herrey J at [11]

    Material before the Tribunal

20. The Tribunal has had regard to the following material:

    ·     The Protection visa application submitted to the Department [in] January 2014 including a recording of the delegate’s interview with [the applicant] [in] June 2014.

    ·     The application for review submitted to the Tribunal [in] June 2014.

    ·     The Department’s PAM3 Refugee and Humanitarian – Refugee Law Guidelines as and PAM3 Protection visas - Complementary Protection Guidelines.

    ·     Country information including DFAT country information reports.

21. A copy of the delegate’s decision was provided to the Tribunal before the hearing.

    The applicant’s claims

22. [The applicant] claims in his Protection visa application that:

    ·     He was persecuted by the Chinese government because he reported illegal behaviour in the election process and corruption of village cadres.

    ·     During the elections in [village] in July 2012 there were two candidates, [Mr A] and former director, [Mr B].  The elections, held [in] July 2012, were filled with illegal activities.  The [name], who was a cadre of the [village] Government, appointed the tally clerks without the consent of voters.  They intended to get [Mr B] re-elected. 

    ·     The election commission issued more votes to a handful of villagers and let them fill them out at their liberty.  The host did not count the number of participating voters or check the issuance of votes.  Nor did he announce how many votes were issued and received on the spot.  Consequently, [Mr B] was re-elected. 

    ·     The villagers were angry with the election results.  In August, five persons including [the applicant and Mr A] (the opposition candidate) went to the Town Government.  They reported the illegal behaviour during the election process.  They also asked the Town Government to audit the Village’s accounts and investigate [Mr B] who they accused of embezzling land compensation monies and wasting public money.

    ·     The Town Government made an investigation but thereafter declared there was no problem with the Village’s accounts and the election process was legal and valid.  Town Government leaders then leaked the villagers’ petition material to [Mr B], who retaliated and had the five petitioners (including [the applicant]) beaten by hooligans.  They were warned not to make trouble again.

    ·     In October, the petitioners went to Gaocheng City Discipline Inspection Commission to petition.  After two weeks, they were informed that [village] Government would deal with their petition.

    ·     [In] October 2012, [the applicant] was taken by the Village security team to the Village Committee.  At the instigation of [Mr B], the security team members slapped and kicked him and then pressed [the applicant]’s head to the ground.  He was tortured all night.  Next day, his wife begged for his release.  [Mr B] took the opportunity to extort 5,000 RMB and warned him not to petition again. 

    ·     [The applicant] decided to leave China.  He says he could not survive in China where corrupt officials shield one another and other people’s legal rights cannot be guaranteed.

23. In his interview with the delegate, [the applicant] said that he did not want any more trouble for himself or his family and so categorically decided never to get involved with petitioning and politics again.

24. At the start of the Tribunal’s hearing, [the applicant] confirmed that his statement accompanying his Protection visa application in January 2014 was correct in all respects, and that he did not wish to amend any of his claims.  [The applicant] informed the Tribunal of one new claim not mentioned in his application or in his interview with the delegate, and he informed the Tribunal of more recent events impacting his family:

    ·     In the context of discussing his delay in not leaving for Australia until June 2013 (that is, nearly 10 months after the incident in October 2012) [the applicant] made a new claim that they also came for him in February or March 2013, after Chinese New Year, and asked him if he would appeal.  He said he did not reply.  

    ·     In September 2014, they went to his father’s house looking for [the applicant].  When his father said he was not there, they took no notice and searched the house nonetheless and damaged it. 

    ·     His wife and son have relocated and now live with her family in Gaocheng because his son was bullied by [Mr B], who was also the Principal of [the] primary school in [village], that is, the school his son was attending.  His son has been forced to attend a private school because he is living outside the area of his Hukou.

    Nationality

25. The Tribunal finds that [the applicant] is a national of China.  He travelled to Australia as the holder of a passport issued by the authorities of China, a copy of which he provided to the Department with his Protection visa application.  He made no claim to be a national of any other country.  The Tribunal accepts that his claims should be assessed against China both as the “country of reference” for the purposes of the Refugee Convention in s.36(2)(a) of the Act and as the “receiving country” for the purposes of the complementary protection obligations in s.36(2)(aa) of the Act.  The Tribunal is satisfied that [the applicant] does not have a right to enter and reside in any other country and, therefore, he is not excluded from Australia’s protection obligations under s.36(3) of the Act.

    Are [the applicant]’s claims credible?

26. During the course of the hearing, it became evident that there were serious concerns about [the applicant]’s credibility and whether he was telling the truth in relation to significant aspects of his claims including his claimed beating by [Mr B]’s hooligans and the injuries he sustained thereafter as well as whether he is prepared to change his evidence to suit his claim for protection.  By way of summary, although the Tribunal accepts that the July 2012 Village election in [village] may not have been conducted in a fair and transparent manner, it does not find [the applicant] to be a credible witness and is not satisfied that he has told the truth in relation to fundamental aspects of his claims.  Overall, the Tribunal did not find [the applicant]’s evidence to the Tribunal to be consistent, plausible or convincing.  The Tribunal’s concerns are discussed below. 

27. First, the Tribunal has concerns that [the applicant] has changed his evidence and added two new claims to address the delegate’s findings following his interview [in] June 2014.

28. At the Tribunal’s hearing, [the applicant] was asked whether he had read the Department’s letter refusing his application for protection or had it explained to him.  He told the Tribunal that his agent told him he had been refused.  When he asked why his application had been refused his agent responded that the ‘second part did not work’.  Asked what she meant by this, [the applicant] said his agent told him the delegate did not agree that, if he was returned to China, he would be subjected to persecution or harm.  As noted in the delegate’s letter (a copy of which was provided to the Tribunal), in light of the fact that [the applicant] told the delegate he had decided not to involve himself again in politics, petitioning or complaint-lodging and, further, given he and his family had not come to the attention of, or been harmed or harassed by, [Mr B], his associates or anyone else in the village since October 2012, the delegate did not accept his fear of harm on return to China was genuine. 

1. In his interview with the delegate [the applicant] stated that due to the treatment he had encountered at the hands of [Mr B] and his hooligans he had decided to stay away from politics and petitioning.  He said that, even though [Mr A] and other villagers continued with their petitioning, he had decided to not get involved.  The delegate notes that [the applicant] added that even though the City Government later agreed to carry out an investigation into [Mr B], [the applicant] resolutely decided that he would stay away from lodging any further complaints or petitioning against corruption in the future.  The delegate also notes that [the applicant] said he ‘did not want any more trouble for himself or his family’ and hence ‘categorically decided never again to get involved with petitioning and politics’. 

2. However, inconsistent with this clear and unambiguous statement to the delegate in relation to his not pursuing, ever again, to get involved with petitioning and politics, [the applicant] told the Tribunal that although he had never been involved in politics before the July 2012 election, he would definitely get involved in politics if returned to China.  When this inconsistency was put to [the applicant] and he was asked why he had changed his evidence he said that his ‘father’s relationship with [Mr A] is really good and, even if [Mr A] does not want to become Village Chief, I want people to know about [Mr A]’s case’.  The Tribunal accepts that, with the passage of time, [the applicant] may have reconsidered his position in relation to having nothing whatsoever to do with politics but, nonetheless, it finds that [the applicant]’s inconsistent evidence in the space of 17 months since his interview with the delegate reflects poorly on his credibility given that nearly 2 years had elapsed since the election when he was interviewed by the delegate.  It appears that [the applicant] has changed his evidence having regard to the comments of the delegate in the Department’s refusal letter.

3. In addition, the Tribunal notes the delegate’s observation in the interview with [the applicant] that he had come to no harm since the October 2012 incident before he departed for Australia in June 2013.  Having listened to the interview, the Tribunal confirmed that [the applicant] was given opportunity to advance any further claims in relation to incidents involving [Mr B] or his hooligans since the incident in October 2012.  Notwithstanding this, at the hearing, [the applicant] stated that ‘they came for me in February or March 2013 after Chinese New Year and asked me if I would appeal’.  He told the Tribunal he ‘did not reply’.  When the Tribunal observed that [Mr B]’s hooligans may reasonably have expected a response, either in the positive or the negative, and that a failure to respond might have prompted some kind of threat given the claimed past history, [the applicant] said they did not threaten him.  He justified this to the Tribunal on the basis that he ‘did not disagree with them, although deep in my heart I did’.  The Tribunal finds that [the applicant]’s failure to mention this claimed third incident involving [Mr B]’s hooligans, either in his Protection visa application or in his interview with the delegate, implausible especially in the context of the probing questions by the delegate asking him to describe all incidents involving threats to him and his family.  The Tribunal finds the inconsistent evidence about interactions with [Mr B]’s hooligans and the omission of evidence in relation to this claimed third incident reflects poorly on [the applicant]’s credibility.

4. Moreover, at the hearing, [the applicant] claims that his wife has had to take his son out of the local primary school at [village] because he has been bullied by [Mr B] who is the Principal at the school (in addition to being the Village Chief).  This has resulted in [the applicant] incurring costs in having his son attend a private school in Gaocheng City where his wife and his son now live with her family.  Costs are incurred because his son is no longer attending the local school in the locality indicated in his Hukou.  His son is in Grade [level] and attends a boarding school Monday to Friday returning home to his mother on weekends.  Questioned by the Tribunal as to when his son changed school, [the applicant] said it was sometime in June or July 2014.  The Tribunal observes that [the applicant] had the opportunity to raise this matter with the delegate when interviewed [in] June 2014 but failed to do so, despite [the applicant] indicating to the Tribunal that his son had been bullied by [Mr B] throughout the school year that ended in June 2014.  In the Tribunal’s opinion it would have been clear to [the applicant], whilst he was in China and before he decided to come to Australia, that his son would have been at some risk if [Mr B] was the Principal of the local primary school.  In this regard, the Tribunal notes the delegate’s observation (as set out in the copy letter provided to the Tribunal) that in his interview [the applicant] told the delegate his wife and child continue to reside at his family home in [village] with his parents and that, since his arrival in Australia, he has been in regular contact with his wife and his parents who continue to farm ([fruit] and vegetables) on the family farm.  At his interview with the delegate [the applicant] confirmed that family members have not encountered any form of trouble or harassment.  The Tribunal asked [the applicant] whether his wife had complained in relation to his son being bullied [Mr B] to which he replied ‘no’.  The Tribunal finds this implausible.  No evidence was provided to the Tribunal of [the applicant]’s son’s enrolment in a new school in Gaocheng City.  Further, the Tribunal notes [the applicant]’s vague evidence about the cost of sending his son to boarding school.  He said it costs between 2,300 RMB - 3,000 RMB.  It is somewhat surprising to the Tribunal that [the applicant] does not know exactly how much it costs to send his son to boarding school.  The Tribunal finds that [the applicant]’s failure to mention at his interview with the delegate in early June 2014 that [Mr B] had been bulling his son at school though the year to reflect extremely poorly on his credibility.   

5. In summary, it is the Tribunal’s opinion that, following his interview with the delegate and having been advised by his agent that the ‘second part did not work’ such that the delegate did not accept he would suffer harm if returned to China, [the applicant] has changed his evidence by:

   ·     Contradicting his earlier unequivocal evidence that he had decided never again to involve himself in politics, petitioning or complaint-lodging:  rather, he told the Tribunal that he would be involved in politics if returned to China.

   ·     Introducing a new claim at the hearing that [Mr B]’s hooligans came for him in February or March 2013 after Chinese New Year and confronted him about whether he would be involved in any appeal.

   ·     Introducing a new claim at the hearing that [Mr B] bullied his son at primary school such that he wife has had to move to live with her family and send their son to a new school.

   This does not reflect well on his credibility.

6. Second, [the applicant] has provided inconsistent information to the Department and to the Tribunal in relation to how long he was attacked [in] October 2012, the injuries which he claims to have suffered at the hands of [Mr B]’s hooligans that night, and his resumption of work.

7. In his application for protection, [the applicant] claims that on the evening of [date] October the village security team brought him to the Village Committee and 2 of the security team members harshly slapped his face and, after he fell down to the ground, they kicked him hard and pressed his head to hit the ground.  He said he was ‘tortured all night’.  [The applicant] told the Tribunal that on the evening of [date] October when he was taken by the village security team to the Village Committee rooms (the Committee itself was not there) he was asked whether he would appeal and when he said ‘yes’ he was beaten.  Asked how long this went on for he said ‘half an hour’.  

8. [The applicant] told the Tribunal that, when he was released the next day, he had medical treatment because his ‘head was broken’, by which he meant ‘it was bleeding’, and his ‘back was also injured’.  Asked whether any x-rays were taken he said ‘no’.  After the incident he said he ‘just went home and rested’.  He told the Tribunal he was ‘drinking medicine for the infection’.  The Tribunal put to [the applicant], consistent with s.424AA of the Act, that he had provided inconsistent information to the delegate in his interview in early June 2014.  He told the delegate that, as a result of his beating, he got medical advice because he ‘could not move my arm’ and that the hospital doctor x-rayed his arm but it was not broken so he was given medicine to drink.  He also told the delegate that after the incident ‘nothing happened’ and so he went ‘back to working on the farm as usual’.  In response, [the applicant] told the Tribunal ‘about my arm, after I fell over, they kicked me and I used my arm to protect my head’.  When reminded by the Tribunal that, in response to the earlier question as to whether [the applicant] had sustained any other injuries apart from injuries to his back and his bleeding head he had said ‘there were no other injuries’, [the applicant] declined to respond.  In relation to working after the incident and before his trip to Australia he said he worked for a month: he went to the ‘[object] factory just occasionally and to the farm occasionally’.  He told the Tribunal that the doctor took an x-ray of his chest.  When the Tribunal put to him that earlier in the hearing he had said ‘no x-rays were taken’ [the applicant] said he ‘forgot to mention it’.

9. Questioned by the Tribunal as to whether he resumed work after the [date] October incident [the applicant] said he ‘did not go to the farm because the (September) [fruit] harvest had finished’ but he did go to the [factory] (where he worked in the off-season) for ‘just a few days’.  In his interview with the delegate he said he could not work in the period from October 2012 until he left for Australia.  Later in the hearing, and after a break, the Tribunal discussed a number of inconsistencies in [the applicant]’s evidence.  In relation to working after the [date] October incident and before his trip to Australia [the applicant] said he worked at the [factory] just occasionally and went to the farm occasionally’. 

10. The Tribunal finds [the applicant]’s evidence about the nature and extent of his injuries to be as well as his evidence about whether or not he went back to work to be vague and inconsistent.  He has also provided inconsistent information as to whether or not x-rays were taken, what part of his body was x-rayed, whether or not his arm was injured, and whether or not he went back to work ‘on the farm as usual’ or ‘just occasionally’.

11. Third, the Tribunal notes that [the applicant]’s father continues to live in the same home that he has lived in at [the village] despite the August and [date] October incidents surrounding complaints and petitions to the Town Government following the July 2012 Village Committee elections.  Significantly, [the applicant] told the Tribunal that his father has again joined up with [Mr A] and gone to Gaocheng Letters and Visits Bureau yet again.  He told the Tribunal that his father’s relationship with [Mr A] is very good and [Mr A] has appealed again to Gaocheng Letters and Visits Bureau about the July 2012 election.

12. [The applicant] claims that [Mr B]’s hooligans returned to his father’s home in September 2014 looking for [the applicant].  [The applicant] said his father told [Mr B]’s hooligans that his son was not there but, nonetheless, they used this as an excuse because they knew he was not there, and damaged his family’s home by smashing things including furniture and glass.  [The applicant] told the Tribunal that, although his parents called the police and they indicated an investigation is underway, nothing has happened since then because, in [the applicant]’s mind, ‘they protect each other’.  He has no photographs of the damage done to his parents’ home and, when asked for the reason why his parents did not send him photos, he said it is ‘because his parents do not want me to be worried’.  When asked about the absence of any evidence [the applicant] said he ‘did not think’ he needed to supply any evidence:  he thought he ‘could just tell the Tribunal what had happened’.

13. The Tribunal is not satisfied with this explanation and finds, given the regular communications that [the applicant] says he has his family, that it would be expected in the circumstances of this case that his parents would have sent him photographs of any damage done to their home.  This raises serious doubts for the Tribunal as to whether the claimed incident of damage to [the applicant]’s parents’ home in September 2014 ever occurred.  In the Tribunal’s mind, it is also an indication that [the applicant]’s father, notwithstanding any concerns about what [Mr B]’s hooligans might do, is prepared to continue with appeals to appropriate authorities.

14. When asked by the Tribunal as to why his father would continue to be involved in appeals if, as claimed, his home has been damaged and his son has been tortured by [Mr B]’s hooligans, [the applicant] told the Tribunal that there is now an ‘anti-corruption movement in China’ and his father and [Mr A] ‘thought that they would be successful if they appealed again’.  [Mr A] and [the applicant]’s father have found other villagers who also do not like [Mr B]:  they share the view that, apart from the election irregularities in the July 2012 election, [Mr B] did not build a local road to approved standards and although he was given 5,000,000 RMB to build the road he used only 3,000,000 RMB and took the other 2,000,000 RMB for himself.  As a result, they have all decided to appeal again to the Gaocheng Letters and Visits Bureau because of the current anti-corruption movement in China.  [The applicant] told the Tribunal that his father is [age] and, when questioned by the Tribunal as to whether he counselled his father about getting involved in another petition or appeal, his father replied ‘I am old, they will not do anything to me ‘. 

15. The Tribunal finds that [the applicant]’s admission that his father and villagers together with [Mr A] have decided to appeal again to appropriate authorities indicates that they do not fear harm from [Mr B] or his hooligans and that, in the circumstances, it is reasonable to expect that [the applicant] should also not fear harm if he returns to China because of issues in relation to the July 2012 village election or funding of the local road improvements.   It appears implausible to the Tribunal that [the applicant] should be at greater risk of harm than other Jiashiizhuang villagers who have remained in the village and who have now decided to continue with their petitions buoyed by the current anti-corruption environment in China.

16. Fourth, during the course of the hearing the Tribunal raised its concerns in relation to his 10 month delay in leaving China after the first of the claimed incidents involving [Mr B]’s hooligans in August 2012 when coupled with his more than 7 month delay in applying for protection after arriving in Australia. 

17. [The applicant] applied for his passport in [2012]. His passport issued [in] 2012. The Tribunal noted that his although his passport issued in late [month] he did not apply for a visa for Australia until after Chinese New Year in late February 2013 and it put to [the applicant] that the delay may lead to the Tribunal to doubt his claim of fearing harm at the hands of [Mr B]’s hooligans. He replied that he did not have the money, needed to find an agent to apply for his visa and, further, the agent ‘needed time to make some documents’ (emphasis added).  The content of these ‘documents’ that needed to be made is discussed below.  The Tribunal does not find [the applicant]’s explanation for his delay in leaving China to be persuasive as it considers that if he had a genuine fear for his safety arising from the events that he claims have occurred then he would have actively pursued locating an agent as a matter of urgency, impressed upon the agent the need for an application to be made urgently and prioritised securing loans from family and friends to cover related costs..

18. [The applicant] arrived in Australia [in] June 2013.  He applied for his Protection visa [in] January 2014, more than 7 months later.  The Tribunal noted such a delay in applying for protection is not consistent with someone who genuinely fears returning to their home country.  [The applicant] relied ‘I did not know that‘.  He added that his agent told him he could go to Australia and, once he arrived, ‘someone would pick me up at the airport’ and then he ‘could just stay’.  Later in the hearing, [the applicant] also said he ‘did not know how to apply for protection’.  The Tribunal does not find [the applicant]’s explanation for his delay in applying for protection to be persuasive.  If, as explained to the Tribunal that he thought he ‘could just stay’, he would not have completed a Passenger Card upon arrival in Australia consistent with the terms of his Visitor visa which permitted a 3 month stay on arrival.  Had [the applicant] indicated on his Passenger Card that he intended to remain indefinitely in Australia he would have been questioned upon arrival in Australia.  Furthermore, if [the applicant] had a genuine fear of returning to China and the events he claims occurred had, in fact, occurred then he would have been able to approach the Department to discuss visa options to remain in Australia or contact one of the many registered migration agents who advertise their services in the Chinese speaking newspapers in [city].  The Tribunal considers that approaching the Department or a migration agent would have avoided the risk being caught overstaying his 3 month Visitor visa and remaining unlawfully in Australia.  It is accepted that there may be good reasons for Protection visa applicants to delay lodgement of their application and that such a delay does not necessarily preclude an applicant from having a well-founded fear of persecution.  However, the Tribunal does not accept [the applicant]’s explanation and consider his delay in this particular case casts significant doubt on the truthfulness of his claims.

19. It is the Tribunal’s view that [the applicant]’s delay in applying for protection is inconsistent with the actions reasonably expected of someone who genuinely fears persecution in his home country.  The Tribunal finds that [the applicant]’s reasons for his delay in leaving China and this further delay in lodging his Protection visa application to be unpersuasive, and unsatisfactory.  The Tribunal is satisfied that [the applicant]’s 7 month delay in leaving China after his passport had issued when coupled with his more than 7 month delay in lodging a Protection visa application after arriving in Australia raises further serous concerns for the Tribunal in relation to the credibility of his claims.

20. Fifth, [the applicant]’s Visitor visa application gives the Tribunal serious cause for concern.  As noted in the delegate’s letter (a copy of which was provided to the Tribunal) as part of his application to the Australian Consulate in Shanghai to obtain his Visitor visa, [the applicant] claimed to be a [occupation] of an animal breeding business known as [name] coming to Australia for a holiday visit.  Documentation lodged in support of the application included evidence of [the applicant] was employed by the company, an approved letter of leave and a Personal Certificate of Deposit with the Bank of China.  When asked by the Tribunal whether he was a [occupation] with an animal breeding business [the applicant] replied ‘no’.  He confirmed again that he was a [fruit] farmer and did occasional work in a [object] factory.

1. The Tribunal put to [the applicant] that it appears he had provided false information as part of his Visitor visa application and this may lead to Tribunal to conclude that he is willing to provide, or allow his agent to provide, false information to achieve a migration outcome.  [The applicant] blamed his agent and said that the agent ‘made all the false documents’.  The Tribunal then asked [the applicant] whether he was prepared to allow his agent to make and provide false documents to which he replied ‘the agent did it all by himself’.  It is clear to the Tribunal that [the applicant]’s agent did not do it ‘all by himself’ and that [the applicant] was actively involved.  In this regard, the Tribunal notes that [the applicant] provided his agent with his passport, information about his family members who would remain in China and his Hukou.  The Tribunal considers the fact that [the applicant] is prepared to allow his agent to provide false information and documentation to the Department as well as to play an active role in this regard does not reflect well on his credibility.

   Does Australia have protection obligations to [the applicant] under the Refugees Convention?

2. Country information[19] notes that corruption is a pervasive problem in China and that it touches virtually all corners of society from the economic, political and judicial fields to the social, cultural and educational ones.  Corrupt practices are evident in many areas of Chinese society but most sources agree that corruption problems are concentrated in sectors with extensive state involvement, such as construction, land use, infrastructure, property development and banking.  China ranks 100 out of 175 countries and territories measured on Transparency International’s 2014 Corruption Perceptions Index.[20]  the Chinese publicly is increasingly intolerant of perceived official corruption with a growing number of people taking to the streets and social networking sites to criticise the government in protest.[21]  President Xi Jinping launched a nation-wide anticorruption campaign on taking office. The campaign has resulted in the arrest of more than 60 officials of ministerial-level. Conviction rates were corruption cases at close to 100%.  DFTA’s most recent report on China notes that some members of the public who have sought to politicise or publicise official corruption have been detained.[22]

   [19] DFAT Background Paper  China: Official Corruption, 11 September 2013

   [20] DFAT Country Report - People's Republic of China, 3 March 2015

   [21] ‘China's Hu orders party to fight corruption’  2012  Agence France Presse, 9 January 2012

   [22]  DFAT Country Report - People's Republic of China, 3 March 2015, p.6

3. Against that this background, the Tribunal accepts the possibility, even the probability, that the July 2012 Village Committee election in [village] may not have been conducted in accordance with appropriate procedures and, further, that [Mr B] may have in been involved in corrupt activities that resulted in a personal advantage and that he may have engaged associates to threaten or harass members of the public who wished to bring his activities to the attention of appropriate authorities.  The Tribunal accepts the difficulty in providing evidence of the claims outlined in [the applicant]’s application for protection.  Notwithstanding this, the Tribunal has formed the view that [the applicant] has not been truthful in all of his claims.  Based on the evidence provided, the Tribunal accepts that:

   ·     There were voting irregularities in the Village Committee elections in [village] in July 2012 when [Mr B] was re-elected Village Chief.

   ·     Some of villagers were angry with the election results not only because of the voting irregularities but also because of [Mr B]’s unpopularity arising from perceived personal benefits gained from construction of a road in the village.

   ·     Some of the disaffected villagers, including the opposition candidate [Mr A], reported [Mr B]’s conduct to the Town Government and [Mr B] retaliated against the petitioners.

   However, the Tribunal does not accept that [the applicant] was involved in [Mr A]’s campaign to be elected as Village Chief and any subsequent petitions.  Based on his knowledge of the petition processes undertaken by disaffected villagers including [Mr A] and the retaliation efforts by [Mr B]’s supporters it is clear [the applicant] has some knowledge of these events.  Having considered [the applicant]’s claims individually and cumulatively, for the reasons given above, the Tribunal is not satisfied that there is a real chance that [the applicant] would be subject to any harm if returned to China.  Of particular relevance is the evidence provided by [the applicant] that his father not only continues to remain in the family home but is also actively part of a group of disaffected villagers pursuing a further petition to appropriate bodies.  It is the Tribunal’s view that, if [the applicant]’s father feared for his own safety, he would have moved from [town] to another part of China or he would discontinue his petitioning.  The Tribunal is satisfied that, on the evidence provided, it is [the applicant]’s father who not only assisted with [Mr A]’s election campaign but who also continues to now be involved with petition activity.  Based on the evidence provided, the Tribunal is satisfied that [the applicant] is merely articulating another person‘s experiences (possibly those of his father).  This would explain not only [the applicant]’s knowledge of events and processes involved but also the lack of detail that he is able to provide, the inconsistencies in his evidence and the fact that he has included new claims in his evidence to the Tribunal.

4. The Tribunal does not accept that there is a real chance that [the applicant] will be subject to harm from [Mr B] or the hooligans who work for [Mr B] if he returns to China.  The Tribunal finds that [the applicant] does not have a well-founded fear of persecution and, therefore, he does not satisfy the criterion set out in s.36(2)(a) of the Act.

   Does Australia have protection obligations to [the applicant] under the complementary protection criterion?

5. The Tribunal has also considered whether [the applicant] is entitled to complementary protection. For the reasons given above, the Tribunal has rejected the entirety of his claims.  The Tribunal finds there are no substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to China, there is a real risk that he will suffer significant harm.  The Tribunal is not satisfied that [the applicant] applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

   Conclusion

6. 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 the Refugees Convention. Therefore, [the applicant] does not satisfy the criterion set out in s.36(2)(a) of the Act.

7. Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s.36(2)(aa) of the Act.  The Tribunal is not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

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

   DECISION

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

   Katie Malyon

   
   Member