1411595 (Refugee)

[2015] AATA 3928

1411595 (Refugee) [2015] AATA 3928 (18 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1411595

COUNTRY OF REFERENCE:                  China

MEMBER:Katie Malyon

DATE:18 December 2015

PLACE OF DECISION:  Sydney

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

Statement made on 18 December 2015 at 12:47pm

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 Jiangsu Province, [the applicant] applied for the visa [in] January 2014.  The delegate refused to grant the visa [in] June 2014.

3. [The applicant] appeared before the Tribunal on 3 December 2014 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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] May 2014.

    ·     The application for review submitted to the Tribunal on 1 July 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 decision record sets out in detail [the applicant]’s evidence to the delegate in his interview.

    The applicant’s claims

22. [The applicant] claims in his Protection visa application that he comes from [a] village (Jiangsu Province) where persons in [Family A] hold all the important positions such as Chinese Communist Party Secretary, Village Chief and the Village Militia Leader under a clan-type group rule, with rampant corruption and bribery occurring on a regular basis.  There are factories in the village owned by the village: one is a [processing] plant that exports products to [country] and the other is a [processing] factory.  Each factory makes considerable profit which is not shared amongst the village:  villagers receive only a token [payment] at Chinese New Year and the Moon Festival.  The head person and the accountant of both factories are trusted persons of [Family A].  They claim that due to low prices the factories are just breaking even and it is not possible to share more with the villagers.  However, everyone in the village is aware that money has been used on lavish entertainment or remains in the pockets of the corrupt cadres.  It is the universal wish of the villagers that they could be rid of [Family A] in their roles as Village Chief and other cadres.  The villagers who had been suppressed and marginalised would like to elect a fair, uncorrupted, committed and unselfish villager not from [Family A].

23. Following the death of the Village Chief [in] August 2012 from [Illness 1] an election was called for and everyone hoped that a new chief would be elected other than a member of [Family A].  [The applicant] was unanimously asked to run for the position.  A number of village elders asked him to stand for the position of Village Chief, a position that had been held by [Family A] for more than [number] years.  He did not accept the invitation to be a candidate until several senior villagers, as representatives of other villagers, visited his home and persuaded him to run for the position.  They said to him: ‘You are the most suitable candidate and have the trust of the villagers. You are honest, upright, fair and committed person.  The villagers wish you would courageously stand up to run for the Village Chief’.

24. He agreed to contest the position but realised that [Family A] would do whatever they had to stop an outside candidate from winning the election.  When his nomination became known, a member of [Family A] advised him that if he withdrew his nomination he would be looked after.  He was also told by his [boss] that he should not run as a candidate as he was going to be promoted to the position of Deputy Director of the company in the future and that he would be given a pay rise the following month.  When he refused to withdraw from the election, his boss warned him that there would be endless trouble for him.  The only other contestant for the election was Militia Team Leader [Mr B], the [relative] of the former Village Chief.

25. [In] August 2012, one week prior to the election, [the applicant] was returning home about 10:00 pm by bike when he was stopped and abducted by a group of men and taken to an unknown place.  He was blindfolded and his mouth was stuffed with cloth.  He was told that they were teaching him a lesson for daring to contest the election following which they beat him with sticks and belts.  They told him to forget the election or he and his family should not think of living.  After the beating, they told him to get as far away from the village as possible, the far (sic) the better, otherwise he would lose his life. 

26. [The applicant] returned home and told his wife and his [child].  They agreed he should go into hiding so he went to Shanghai to the home of his wife’s [sibling].  The following day, a group of persons came to his home to look for him and told his wife that if ever they saw him again there would be no peace for the whole family.  For the sake of [the applicant]’s family, his wife’s [sibling] talked him into going to Australia to seek asylum as he would be able to use his skills in [a certain] industry and could make a living. 

    Nationality

27. 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.

    Hearing

28. At the commencement of the Tribunal’s hearing [the applicant] confirmed that he did not wish to make any amendments or corrections to his claims.  He also said he did not have any new evidence or documents to provide the Tribunal. 

29. During the course of the hearing it became evident that there was a translation issue in relation to the cause of death of the Village Chief who died [in] August 2012.  In the Statement accompanying his application for protection [the applicant] states that the old Village Chief died of [Illness 1].  However, he told the Tribunal that the Village Chief died suddenly of [Illness 2].  When this inconsistency was put to [the applicant] he said that it was [Illness 2] and that it must have been the translation that caused the inconsistency because the Village Chief had been in good health before he died suddenly of [Illness 2].  The Tribunal has independently confirmed that the statement in Mandarin accompanying [the applicant]’s application indicates that the old Village Chief died suddenly of [Illness 2]. 

    Are [the applicant]’s claims credible?

30. 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.  By way of summary, the Tribunal 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 plausible, persuasive or consistent.  The Tribunal’s concerns are discussed below. 

31. First, the Tribunal has concerns with [the applicant]’s failure to respond to issues identified in the delegate’s interview with [the applicant] as well as the delegate’s letter refusing his application for protection (including the absence of any documentary evidence) or have any comment about the delegate’s reasons for the decision to refuse his application.  [The applicant] was asked whether he had read the Department’s letter refusing his application for protection, had it explained to him or had it translated.  He replied that he had read the letter and used a computer to translate it.  Asked if he had any comments in response to the delegate’s letter [the applicant] replied ‘no’.  When pressed further as to why he had no comments to make [the applicant] said it was because he did ‘not quite understand the translation’.  He agreed with the Tribunal that the letter from the Department was important in relation to his application: he said the letter was ‘very important’. 

1. In light of [the applicant]’s admission that the delegate’s letter was ’very important’, the Tribunal questioned whether he took the opportunity to have someone explain the letter to him since he could not ‘quite understand’ his computer generated translation.  He replied: ‘At first I used the computer to do the translation. As I could not explain it well I had to find someone to read to me. I found a student to explain it’.  The Tribunal asked if [the applicant] made any notes or wrote the reasons down.  He said ‘no’.  It was put to [the applicant] that his failure to address the issues outlined by the delegate in his refusal letter raised doubts for the Tribunal as to whether he genuinely feared harm if returned to China.  As noted in the delegate’s letter (a copy of which was provided to the Tribunal) considerable discussion ensued at [the applicant]’s interview with the delegate about the absence of any documentary evidence in support of his claims.  The delegate makes it clear that a decision maker is not required to accept uncritically claims made by an applicant and expressly referred to the absence of any evidence in relation to the village election including the names of the candidates contesting the position of Village Chief, a death notice relating to the death of the former Village Chief given he had been a member of the prominent [Family A] who held the position for more than [number] years or the appointment of the new Village Chief [Mr B].  [The applicant] did not provide any documentary, electronic or photographic evidence in support of his claims to the Tribunal.  He said he did not have any evidence to provide. 

2. The Tribunal notes that during the course of the hearing that [the applicant] confirmed public notices about a person’s death are published: he told the Tribunal this is done so that ‘family and friends can go to the person’s home to meet face to face’.  Despite confirming that death notices are published, [the applicant] did not provide the Tribunal with a copy of the former Village Chief’s death notice.  Further, the Tribunal notes that [the applicant] told the Tribunal that when he went o Shanghai he began to prepare for his trip to Australia so that he could lodge his Protection visa application when he arrived.  When asked why it was that, if he knew he was going to be applying for protection in Australia and had 15 months in which to prepare for his application before he left China, he did not bring any documentation with him [the applicant] said: ‘Because I wasn’t at home, so it wasn’t easy’.  The Tribunal suggested that he could have bought newspaper articles or downloaded material from the Internet to which he replied ’I’m not very familiar with computers’.  He added he does ‘not know about downloading things from the Internet’ and had someone help him download his application form for protection.   The Tribunal accepts that [the applicant] may have had some difficulty downloading a Protection visa application form from the Department’s website which is published in English only.  However, if [the applicant] was able to translate the delegate’s letter albeit with some shortcomings, he clearly has some competency in using computers and would, in any event, be able to attend the local library where he says he was assisted and ask for help in downloading information in Chinese which could then have been translated.

3. Later in the course of the hearing, [the applicant] noted that he ‘could not provide anything’ because ‘I withdrew from the election’.  The Tribunal pointed out that evidence to confirm his withdrawal could take the form of a Statutory Declaration from an officer of the Village Commission confirming that he had withdrawn from the 2012 election.  [The applicant] stated that he had not provided anything and added that: ‘Originally, when I came to Australia I came to hide temporarily’.  No evidence was lodged by [the applicant] after the hearing.  

4. The Tribunal finds that the total absence of any documentary evidence whatsoever to support [the applicant]’s claims of his candidacy in the 2012 election in his village to be highly relevant, particularly in light of the fact that this issue was discussed with the delegate at interview and was also expressly identified by the delegate in his decision as one of the key reasons for refusing [the applicant]’s application for protection.  [The applicant] was clearly on notice of the need to provide some evidence in support of his application for protection.  The Tribunal is of the opinion that some record (for example, newspaper articles) in relation to former Village Chief’s death and the subsequent election of [the village chief]’s [relative] to the position would have been the subject of some publication which could have been readily obtained by [the applicant]’s family in China.  The Tribunal finds the absence of documentary evidence to be adverse to [the applicant]’s credibility.

5. Second, [the applicant] was asked questions in relation to the village election process.  His evidence is inconsistent with country information such that the Tribunal has doubts as to whether he was involved with the process at all following the death of [the village chief], or whether he is just a villager registered and entitled to vote in such an election like other persons over the age of 18 years.

6. This would have been [the applicant]’s first campaign as a candidate so it to be expected that some information about what is involved with village elections may be unfamiliar to him.  However, given his age, he has been eligible to vote for more than 30 years and so could be expected to have some knowledge of the basic requirements and processes involved.  Country information on the Organic Law of the Villagers Committees of the People’s Republic of China 1988 (the Organic Law) notes the term of office following village elections is three years.[19]  The legislation allows villagers to directly elect members of the village committee.  Village members elect a chair, vice-chair, and committee members for a term of three years.  Elections are considered valid as long as at least half of the village’s registered and eligible voters go to the polls.  When asked how long he would have been elected for [the applicant] told the Tribunal he would have been appointed for five years.  The Tribunal clarified [the applicant] was sure about being appointed for a five year term to which he replied ‘yes’.     

   [19] [Source deleted].

7. [The applicant] told the Tribunal that his candidacy was announced ‘about one week after the old chief died’ [in] August.  He said [the] Village Commission announced the two candidates for the election and the next day a People’s Representative meeting was held.  [The applicant] said the two candidates, himself and young [Mr B], as well as about [number] people/village representatives attended the meeting which was held at the office of the Village Commission.  He recalled the meeting was held on Monday [date] August.  [The applicant] told the Tribunal that the village election was scheduled for Saturday [date] August.  Article 12 of the Organic Law sets out the requirements for voting in a village election including that ’The name list of the villagers who have the right to elect and stand for election shall be made public 20 days prior to the date of the election’.[20]  The Tribunal notes that, having regard to [the applicant]’s claim that the old chief died on (Sunday) [date] August 2012, the [village] Commission would have needed to make public the names of villagers having a right to vote on the same day as the former chief’s sudden death from [Illness 2].  [The applicant] told the Tribunal there were about [number] people in the village.  In light of the fact that [date] August 2012 was not only the day the former [chief] died suddenly but also a Sunday this seems unlikely and raises further doubts for the Tribunal about [the applicant]’s claimed involvement in the village election that he says was set down for 20 days later on [date] August.  The Tribunal is of the opinion that the Village Commission would not have been able to publish on the day of the old chief’s sudden death a list of villagers entitled to vote and stand for election:  it is more likely that the village election was set down for some time after [date] August 2012.

   [20] Ibid.  See also O’Brian, K. and Han, R. ‘Pathway to Democracy ?  Assessing Village Elections in China”, June 2009, Journal of Contemporary China Vol. 18 No. 60, pp 359-78 and  will you you all in the business or the ‘Backgrounder - Village Elections in China',  Xinhua, 30 March 2012

8. The Tribunal asked whether, having regard to the attack that he claims occurred [in] August, [the applicant]’s name was on the ballot paper notwithstanding he claims he had left the village and gone to Shanghai.  [The applicant] stated that ‘I understand my name was not on the ballot box’: he said he could not be sure because his wife and parents did not vote.  He said they were too frightened because the other candidate, [Mr B], had said they would be attacked.  [The applicant] reiterated that he understood his name was not on the ballot paper because the village representatives came to his home on the evening of [date] August and his wife told them that he was no longer running in the election.  The Tribunal expressed surprise that no one (including parents of the children who were hoping to get jobs with [the applicant]’s [company]) had passed on to his family information as to whether or not [the applicant]’s name was on the ballot paper.  He replied ‘I don’t know anything because I was in Shanghai’.  [The applicant] told the Tribunal that young [Mr B] was elected unopposed.  This is inconsistent with country information that notes Article 14 of the Organic Law provides the number of candidates shall be greater than the number of persons to be elected.  Commentators on the Chinese village election process have noted that compliance with this particular requirement has led to criticism that rival candidates have, in a number of instances, appeared to be running merely to comply with the requirement to have at least two candidates rather than as a serious opponent.  Commentators have pointed to the pro forma nature of candidate speeches as evidence for this.[21]   

   [21] [Source deleted].

9. Overall, the Tribunal has concerns in relation to [the applicant]’s lack of knowledge of basic provisions in relation to the election of village representatives such that it doubts he was ever a potential candidate in any such election.  While a detailed knowledge of the Organic Law would not be expected for a first time candidate the Tribunal is of the opinion that it is reasonable to expect that, if [the applicant] had been announced as a candidate by the Village Commission as claimed, he would know the term of appointment of Village Chief, when the election would be held and that [Mr B] could not be elected unopposed.   

10. Third, the Tribunal has concerns in relation to a number of other inconsistencies in [the applicant]’s evidence.

11. First, [the applicant] provided inconsistent and confusing information about his occupation.  As noted in the delegate’s letter (a copy of which was provided to the Tribunal) [the applicant] states in his application for protection and in his interview with the delegate that he was [Occupation 3] with a [company], [name deleted].  In his interview and his Form 866C Application for an applicant who wishes to submit their own claims for protection [the applicant] said that he worked with the company for [number] years before leaving China.  However, he had told the Tribunal that he worked as ‘[Occupation 4]’ for the company and that his ‘main responsibility was [deleted]’.  [The applicant] said he ‘was promoted after 2 - 3 years working as an intern’ doing [work] having started there when he was [age] years old.  Asked whether he had to use a computer in his [role], [the applicant] responded that he ‘did not use a computer as it was only new employees who were requested to use a computer’.  He then told the Tribunal he was ‘not a Manager but worked below the Department Manager who was, in turn, below [Occupation 4].  [The applicant] clarified that he was still [Occupation 3] after [number] years with his employer.  He held no other positions with the company in that time: he confirmed he had never been promoted.  The company employed about [number] people. The Tribunal finds [the applicant]’s evidence in relation to his occupation in China to be inconsistent and somewhat confusing.  Having advised the Tribunal that he was [Occupation 4] doing [details deleted] he appeared to change his evidence when asked about his use of computers.  It appeared to the Tribunal that [the applicant] changed his evidence about this occupation mindful that he had earlier told the Tribunal that he had no experience working with computers and it would be expected that someone who was [in that role] would have to prepare computerised reports for management.

12. Second, the Tribunal asked [the applicant] about how many people had approached him to stand as a candidate in the village election.  He told the Tribunal that ‘5 or 6 people recommended me to the Village Commission’ and that ‘a lot of other people had expressed interest’ in supporting him.  Asked how many people had expressed interest he said that he didn’t ‘know exactly but it was more than 100 people’.  In response to the Tribunal’s question about whether any supporters had come to his house [the applicant] said ‘3 or so people came every day’.  The Tribunal put to [the applicant] that, in his interview with the delegate and as noted in the copy decision provided to the Tribunal, he had indicated 60 to 70 people came to his house.  [The applicant] responded he ‘did not say that’ in his interview with the delegate.  The Tribunal has listened again to the interview and confirmed that in response to the delegate’s question about why people would elect him [the applicant] replied ‘60 to 70 came to my home and urged me to contest the election because they thought I had the ability. I did not agree at the beginning but they kept coming at nights’.  The Tribunal finds [the applicant]’s inconsistent evidence about the number of supporters who came to his home reflects poorly on his credibility.

13. Third, [the applicant] has provided inconsistent evidence in relation to his claimed attack and the threats made to him.  In his Statement he says that, as he was going home on his bike, someone suddenly came over to stop him, blindfolded his eyes, stuffed cloth in his mouth, took him to an unknown place, kicked him on the ground and then one of them spoke.  However, as noted in the delegate’s letter (a copy of which was provided to the Tribunal) in his evidence to the delegate at interview [the applicant] said they tied him up, dragged him away for a few kilometres, beat him with his own belt and did not say anything until after they had beat him.  When this inconsistency was pointed out to [the applicant] he replied ‘it wasn’t a few kilometres. I can’t remember how long they dragged me for. They covered my eyes. It’s quite a flat area. I didn’t say a few’.  He told the Tribunal that he had forgotten what he said in his interview with the delegate.  Having listened to the tape of the interview again, the Tribunal has confirmed that [the applicant] told the delegate that ‘they tied me up and dragged me away a few kilometres. They used sticks to beat me and my belt’.  The Tribunal finds [the applicant]’s inconsistent evidence reflects poorly on his credibility.  It is the opinion of the Tribunal that someone would know whether or not they had been dragged for a ‘few kilometres’.

14. Further, during the course of his interview with the delegate (and as noted in the delegate’s letter, a copy of which was provided to the Tribunal), [the applicant] was asked whether the attackers said anything before he was beaten.  He replied that nothing was said ‘until after they had beaten me with sticks and my belt’.  However, in his statement accompanying his application, [the applicant] says that prior to being beaten one of them spoke to him and said ‘[conversation deleted].  These persons then started beating me with sticks and belt’.  He told the delegate he can’t recall what was said.  As noted in the delegate’s letter, when this inconsistency was put to [the applicant], he responded ‘it’s impossible for my evidence to be exactly the same as my written statement as it was more than half a year since I wrote it. I can only remember roughly’.  It is the view of the Tribunal that the truth does not change.  It is clear that there were a number of inconsistencies in [the applicant]’s evidence discussed in his interview with the delegate about what was said to him when he claims he was attacked and when his attackers threatened him.  Mindful of these inconsistencies it is the opinion of the Tribunal that [the applicant]’s failure to prepare for his hearing with the Tribunal by familiarising himself with the text of his statement (which was lodged in both English and Mandarin with his application for protection) is suggestive that [the applicant] does not fear returning to China for the reasons claimed.

15. Fourth, the Tribunal has concerns that [the applicant] has provided unpersuasive and inconsistent information in relation to injuries sustained as a result of the claimed attack by [Mr B]’s supporters [in] August 2012.  In his statement accompanying his application for protection [the applicant] claims he had gone out in the evening ‘by bike’ to ‘handle some matters’ and about ‘two and a half kilometers (sic) from home’ he was suddenly stopped on the road, taken away, kicked to the ground, threats were made to have him discontinue as a candidate in the village election or he and his family ‘should not think of still living in this world‘ and he was then beaten.  [The applicant] claims the people beat him with ‘sticks and belt’.  His nose ‘started bleeding’.  However, when asked about his injuries at the hearing, he told the Tribunal that his leg was fractured such he had to go to hospital, have an x-ray and have it plastered.  He failed to mention his fractured leg in his statement.  When asked by the Tribunal how it was that he got home he said he ‘walked’: he added it was ’just a fracture’.  The Tribunal finds that [the applicant]’s inconsistent evidence about the nature of his claimed injuries of concern.  It also has doubts about and is not persuaded about his ability to walk at least 2½ km home with a fractured leg.

16. Fourth, the Tribunal has some concerns as to why [the applicant] is of the opinion he would have been an attractive candidate and on what basis [Mr B] did not want to run against him.  In [the applicant]’s opinion [Mr B] ‘knew he would not be elected if I was there too’.  [The applicant] clarified that he did not volunteer to be elected but rather was recommended and had just accepted that others in the village wanted him to be elected.    

17. [The applicant] was asked about his election campaign and polices.  He indicated that there was no need to prepare any election material because there were a lot of people who knew him anyway in the village.  The Tribunal put to him that he had told the Tribunal he had the same non-managerial job for the past [number] years and so questioned on what basis he would be elected to manage the village if he did not have any managerial experience or influence on management.  [The applicant] responded that ‘in rural areas of China there is a lot of excess labour and I can introduce people to my [firm]’.  As noted in the delegate’s letter (a copy of which was provided to the Tribunal) when asked how he expected to be elected if he had no publicity material and no meetings [the applicant] replied that he ‘could have put the [company] on track and employed 800 people’: this would have almost doubled the size of the [firm] to whom he worked.  The Tribunal asked why people could not just apply for a job and he replied ‘it’s very hard for them’.  [The applicant] said he was ‘going to open doors for them by referring them to my firm and help them get jobs’.  He clarified he was not expecting any payment for this.  The Tribunal finds [the applicant]’s explanation implausible in light of the fact that he had told the Tribunal he held the same position with the [company] for more than [number] years and had not progressed to managerial level in that time.  It is the Tribunal’s view that [Occupation 3] would not be in a position to create jobs for villagers who may wish to vote for him: furthermore, anyone who knew him and the role that he had with his employer would also know that he was not in a position to influence the recruitment practices of his employer.  The Tribunal finds [the applicant]’s explanations as to why he would be a successful candidate and why his opponent was concerned about running against him to be implausible.  It raises serious doubts in the Tribunal’s mind as to whether [the applicant]’s claim of being nominated to contest the village election is credible.

1. Having regard to the fact that, consistent with the law on village elections outlined above, the election campaign period ran for just 20 days from [date] August to [date] September 2012, the Tribunal finds somewhat surprising [the applicant]’s evidence that, on the night of [date] August, rather than spending time meeting, even informally with groups of voters, he went to see a friend on a private matter:  [The applicant] told the Tribunal his friend was doing a project and he didn’t have the skills or experience to do it so he went to teach his friend.  It was on his way home from this outing that he claims he was attacked.  [The applicant] explained that a small town such as his with a population of around [number] there were no campaigns and no electioneering.  He said it was ‘just a little village’.  The Tribunal put to [the applicant] country information that campaigning occurs[22] and his statement to the contrary raises doubts for the Tribunal as to whether his name was put for as a candidate in the village election.  [The applicant] replied that he did not ‘want to go for the election.  It was only when people came to my home every day that then I thought maybe I can make a contribution’.  [The applicant]’s apparent lack of commitment to a campaign in the face of country information which indicates that even local village elections are the subject of campaigns raises doubts for the Tribunal about whether [the applicant] is being truthful in relation to his claimed candidacy for the [village] elections.

   [22] O’Brian, K. and Han, R. ‘Pathway to Democracy ?  Assessing Village Elections in China”, June 2009, Journal of Contemporary China Vol. 18 No. 60, pp 359-78 p. 12

2. Fifth, the Tribunal asked [the applicant] on what basis [Family A] and their gangsters would pursue him if, after he was attacked, he withdrew from the village election.  [The applicant] replied that ‘all of this happened before the election’.  The Tribunal noted that was the point of the Tribunal’s question: once [the applicant] had withdrawn his candidacy and the election had been held, he would no longer be a threat to [Mr B]. It also noted that if he withdrew from the [village] 2012 village election he could nonetheless still help villagers secure jobs at the [company] where he worked, would be able to continue in his job there and could remain in [the village] with his family:  that is, post the election, things could return to normal in the village.  [The applicant] told the Tribunal even after [Mr B] was elected his gangsters kept coming to [the applicant]’s home threatening his wife and saying ’we don’t want to see him ever again’.  He speculated that this might be happening because he is ‘young in the area of politics and [Family A] would be concerned that I could still have a chance to be elected at the next election in 5 years’.

3. In response to the Tribunal’s suggestion that [the applicant] could choose not to stand as a candidate at the next election he opined that ‘[Family A] is very rich. I think they would be very worried about me all the time’.  [The applicant] speculated that after the 5 years [Mr B] might be re-elected unless someone reports him for corruption.  He added that ‘following the August 2012 election the people now know him ([Mr B]) and they are not happy’. 

4. The Tribunal asked [the applicant] if he was still interested in politics.  He replied ‘not any more, I have reached retirement age of [age]’.  He added he is ’not interested anyway’.  The Tribunal put to [the applicant] that being the case, why then he could not return to China and to his village.  He replied that in his view even though he would not stand as a candidate [Mr B] would (nonetheless) see him as a ‘potential threat’.  He said that even while he was in Shanghai, [Mr B]’s people came to his home and told him not to return.  The Tribunal is not persuaded by [the applicant]’s evidence.

5. Sixth, the Tribunal notes [the applicant]’s significant delay in leaving China after the claimed attack [in] August 2012.  He remained in Shanghai for 15 months before he applied for his Visitor visa for Australia.  He told the Tribunal that initially, he was in plaster for a month with his fractured leg and could not move.  [The applicant] said he stayed with his wife’s [sibling] and ‘really did not want to leave Shanghai but they always came to my home and kept asking where I was’.  He says that while he lived in Shanghai he worked with a [company] doing [work].  No evidence was provided by way of supporting statements from his family of any threats made whilst [the applicant] was living in Shanghai.  Asked why he thought [Mr B]’s people were coming to his home and asking for him [the applicant] replied ‘that it something I do not understand either’ and, as a result, he feels he ‘cannot stay in China anymore’.  [The applicant]’s considerable delay in leaving China and the absence of any evidence in relation to claimed threats to his family raises serious doubts in the mind of Tribunal about the truthfulness of his claims.       

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

6. Country information[23] 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.[24]  the Chinese public 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.[25]  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%.  DFAT’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.[26]

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

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

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

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

7. Against this background, the Tribunal accepts the possibility that the 2012 Village election in [village] may not have been conducted in accordance with appropriate procedures.  However, the Tribunal does not accept that [the applicant] was approached by other villagers to be involved in a campaign to be elected as Village Chief.  Based on the evidence outlined above including [the applicant]’s incorrect knowledge about the frequency of elections, it is clear [the applicant] has no knowledge about the election processes.  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 family continues to remain in the family home.

8. Overall, the Tribunal has formed the view that [the applicant] has not been truthful in his claims.  The Tribunal’s concerns in relation to [the applicant]’s evidence including the inconsistencies outlined above, the deficiencies in his evidence coupled with the absence of any supporting documentary evidence all cause the Tribunal to conclude that the events described by [the applicant] did not occur and that he has fabricated his claims for the purpose of his Protection visa application.  The Tribunal rejects these claims.  The Tribunal does not accept that [the applicant] was approached by villagers to contest to the [village] election in 2012 for the position of Village Chief.  The Tribunal does not accept that [Mr B] hired gangsters to attack [the applicant] [in] August 2012.  The Tribunal also does not accept that [the applicant] moved to Shanghai to live with his wife’s [sibling] or 15 months or that [the applicant]’s family were threatened by [Mr B]’s gangsters during his claimed stay in Shanghai.  The Tribunal does not accept that [the applicant] will be subject to harm by [Mr B] or his gangsters if he returns to China.  The Tribunal rejects [the applicant]’s claims in their entirety. 

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

9. Having rejected the entirety of [the applicant]’s claims, the Tribunal finds that there is no real chance that he will be persecuted for any Convention reason, or reasons, if he was to return to China now or in the reasonably foreseeable future.  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?

10. 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 is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

    Conclusion

11. 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, he does not satisfy the criterion set out in s.36(2)(a) of the Act.

12. 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.  For the reasons given above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to China, there is a real risk that he will suffer significant harm.  Accordingly, 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.

13. 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 s.36(2)(aa) of the Act and who holds a Protection visa.  Accordingly, he does not satisfy the criterion in s.36(2) of the Act.

    DECISION

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

    Katie Malyon

    
    Member