1411823 (Refugee) - [2016] AATA 3369

1411823 (Refugee) [2016] AATA 3369 (23 February 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1411823
COUNTRY OF REFERENCE:                  China
MEMBER:Giles Short
DATE:23 February 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 23 February 2016 at 4:41pm

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
INTRODUCTION

[The applicant] is a citizen of the People’s Republic of China. He has said that he was born and grew up in [Village 1] in [Town 1] in [City 1] in Fujian Province and that in December 2004 he was elected as the head of the village. He has said that after a man from the village [died] in January 2005 he organised protests in [Town 1] and [City 1]. He has said that he was arrested by the Public Security Bureau (PSB) [in] February 2005 and tortured, that his wife paid money to obtain his release on bail [in] March 2005, and that a friend, [Ms A], who worked at a [workplace] in [City 2], arranged for him to leave China. [The applicant] had previously visited Australia in October 2004 and he last arrived here [in] May 2005.
As referred to in the decision under review (a copy of which [the applicant] provided to the Tribunal along with his application for review), [the applicant] was previously refused a protection visa [in] August 2005 and he applied to the Refugee Review Tribunal for review of that decision. The Tribunal (the first Tribunal) affirmed the decision under review on 17 November 2005. [In] July 2007 the Federal Magistrates Court remitted the matter to the Tribunal[1] and on 14 October 2007 the Tribunal (the second Tribunal) affirmed the decision under review again. [In] October 2008 the Federal Magistrates Court ordered, by consent, that the matter be remitted to the Tribunal again and on 13 February 2009 the Tribunal (the third Tribunal) once again affirmed the decision under review. [The applicant] unsuccessfully sought review of this last decision through the courts.[2] He subsequently sought the intervention of the Minister under section 417 of the Migration Act 1958.
[1] See SZHYH v Minister for Immigration & Anor [2007] FMCA 1039.
[2] See SZHYH v Minister for Immigration & Anor [2009] FMCA 531; SZHYH v Minister for Immigration and Citizenship [2009] FCA 1001; and SZHYH v Minister for Immigration and Citizenship & Anor [2010] HCASL 12.
[The applicant] made his current application for a protection visa [in] September 2013. At the hearing before me on 2 October 2015 I explained to him that, as he had previously applied for a protection visa, he had only been allowed to make a further application as a result of a decision made by the courts in Australia. I noted that his first application had been considered under the Refugees Convention and that this meant that I could only consider his claims under the complementary protection criterion in accordance with the decision of the courts permitting such applications.[3]
[3] See SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 and see also AMA15 v Minister for Immigration and Border Protection [2015] FCA 1424.
[The applicant]’s application for a protection visa was refused by a delegate of the Minister for Immigration and he has applied to this Tribunal for review of that decision. A summary of the relevant law is set out at Attachment A. I have taken the policy guidelines prepared by the Department of Immigration and the country information assessments prepared by the Department of Foreign Affairs and Trade into account to the extent that they are relevant. The issue in this review is whether 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Are there 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 applicant]’s claims
[The applicant] is aged in his late [age]. He has said that he completed [number] years of school [in] China, and that after he left school he did not have formal work until 1998. He has said that during this period he just did casual work. In his first application for a protection visa, made in 2005, he said that he had been employed as a [occupation] by [Company 1] from August 1998 until December 2004. In his application for the visa which he used to travel to Australia lodged [in] April 2005, however, [the applicant] said that he had been employed as the [occupation] of [Company 2] for three years and he produced a letter dated [in] April 2005 on the letterhead of the company confirming his employment and a business card.[4]
[4] See folio 41 of the Department’s file [number].
[The applicant] was interviewed by telephone in relation to his first application for a protection visa [in] July 2005 and he said that he had been employed by both [Company 1] and [Company 2] but that he had forgotten to mention his employment with [Company 2] to the migration agent who had assisted him to prepare his application for a protection [visa]. He said that the supporting letter had been written by a friend who worked at [Company 2] in order to help him to get a visitor visa. In a statutory declaration made [in] September 2007 [the applicant] said that from January 2002 to August 2004 he had worked as a [occupation] for [Company 2]. He said that he had normally worked there for 15 hours a week. He said that from August 1998 until December 2004 he had worked as the [occupation] for [Company 1] and that he had normally worked about 25 hours a week at this company.[5]
[5] See folio 44 of the Tribunal’s file 071641386.
At the hearing before the third Tribunal on 15 January 2009 [the applicant] said that he had still been employed by [Company 2] when he had visited here in October 2004. He said that this had been a business trip and that he had been sent here by [Company 2]. He said that this company’s main business was manufacturing [products]. He said that he was not sure why it was described as [a certain type of company]. [Details of company deleted]. He said that he had not been employed by [Company 2] when he had come here in May 2005 and that the letter dated [in] April 2005 on the letterhead of the company confirming his employment was false.
Contrary to his earlier evidence [the applicant] said that he had ceased to be an employee of this company in August 2004. He said that his friend, [Ms A], had made up this letter from the company for him. He said that he did not know how she had managed to get this letter but he suggested that she would have done this through someone inside the company. Asked why he would have come here on a business trip for [Company 2] in October 2004 if he had ceased working for the company in August 2004 [the applicant] did not respond. He said that he understood the question. He said that because it was some time ago he was confused with the dates. He said that perhaps he could start from the beginning and give the Tribunal the correct information. He said that because he had been beaten in the past this had affected his memory.
[The applicant] said that he remembered that he had been employed by the company from January 2002 until August 2004. He said, however, that he had kept working there until December 2004 when he had been elected as the head of his village. He said that he had stated in his statutory declaration that he had ceased working for this company in August 2004 so when he had been asked earlier in the hearing he had given this answer. He said, however, that the truth was that he had kept working in the company until December 2004. He claimed that he had stated that his employment had ceased in August 2004 because he had been confused and he had not been thinking clearly. He said that he had not referred to his employment with [Company 2] in his application for a protection visa because he had not felt it was necessary because he had believed that the Department would have all the records in relation to his business trip sponsored by the company.
[The applicant] confirmed that he had also worked for [Company 1] which he said was a [description] company. He said that he had been a [occupation] at this company and he said subsequently that he had looked after [a certain area] to be specific. He said, however, that he had looked after [another area], for example, and that he had looked after [details deleted]. He confirmed that he claimed that he had worked for this company from August 1998 until December 2004. He said that he had been able to be employed by both these companies because in reality they had both been cottage sized companies in the village. He said that they were nothing like state-owned enterprises or publicly listed companies. He said that basically these had been two small companies in the countryside and the structure of these businesses was easy to manage. He said that he had got into these companies through connections which was common in the countryside and there had been many [occupations].
In his first application for a protection visa [the applicant] said that he had lived in [Town 1] in [City 1] from May 1995 until April 2005. At the hearing before the third Tribunal on 15 January 2009 he confirmed that before he had come to Australia he had lived in [City 1]. He said that his parents were still living there but that his wife and children had moved from [City 1] [in] May 2005, the day after he himself had arrived in Australia. He said that they had moved to [another] Province, where his wife’s [relative] had a business, because they could not live in Fujian. He said that his wife and children were living in rented accommodation and they were moving around quite often. He said that his children were going to school but that they had not enrolled using their real names. He said that [in] May 2005 officials had come to visit his home looking for him. He said that his wife and children had left there the previous day otherwise they would have been caught. He said that the government was still looking for them and the government did not know that they were living in [another province].
In his current application for a protection visa [the applicant] said that he had lived at an address in [City 2] from March 2002 until May 2005. When he was interviewed by the primary decision-maker in relation to his current application [in] May 2014 he confirmed that he had lived at this address in [City 2] for three years before he had left China. He said that before this he had lived in [Village 1] in [Town 1] in [City 1]. He said that he had moved to [City 2] because ‘my father came to me and I moved with him’.
In a statutory declaration accompanying his first application for a protection visa [the applicant] said that he had resigned from his employment with [Company 1] in December 2004 after he had been elected as the president of his village. He said that around the middle of January 2005 his neighbour [Mr B] had committed suicide shortly after he had come back to the village because he could not afford the heavy taxes and levies which he and his family owed the local government. [The applicant] said that at this time he had not been officially appointed as the president because he had still been waiting for an official letter from the government in [City 1]. He said, however, that he had called together some key people to have a special meeting at which he had required them to organise their protest well and he had insisted on using a peaceful and reasonable method.
[The applicant] said that he had been elected as one of three representatives to negotiate with the relevant authorities in [Town 1] and [City 1] to reduce heavy taxes and levies, to take effective steps to respect the basic human rights of ordinary people and to give reasonable compensation to [Mr B]’s family. He said that he had drafted a petition which more than one hundred people had signed and he and the other two representatives had visited the relevant authorities in [Town 1] and [City 1]. [The applicant] said that he had suggested that people from his village hold sit-in protests in front of the [Town 1] Government and in front of the [City 1] Government. He said that he had been arrested by the PSB [in] February 2005 which was Chinese New Year’s Eve. He said that he had been denounced for organising an anti-government protest and at the same time he had been informed that the government had refused to appoint him as the president of his village because he was regarded as a person who had strong anti-government ideologies and dissident political opinions. He said that he had been subjected to mistreatment and torture by the police who he said had forced him to put a fingerprint on a confession. He said that [in] March 2005 he had been released after his wife had bribed some police officers. He said that he had had to report to the police station weekly. He said that [Ms A], who worked at a [workplace] in [City 2] and who had a lot of contacts with travel agencies, had arranged for him to leave the country early in May 2005.
[The applicant] produced to the first Tribunal a copy of what is described as a ‘Certificate of the Villagers Committee Member’ relating to his election as the head of the village [in] December 2004. As I explained to [the applicant] at the hearing before me, I do not have this document before me because the Tribunal’s file in relation to his application to the Tribunal in 2005 has been destroyed in accordance with normal government processes. However, as I explained to [the applicant], the document is described in the material before me and I accept that it was said to have been issued [in] December 2004 and that it stated that he had been elected as the Director of the Villagers Committee.[6] In a letter to the Tribunal dated 24 October 2005 [the applicant] said that this document was evidence that he had been successfully elected as the Director of the Administrative Committee of [Village 1] at the election [in] December 2004. He said that according to relevant policies a candidate had first to be elected as the Director of the Administrative Committee and then appointed by the government as the president or deputy president but he had not been genuinely appointed as the president or the deputy president for the reasons he had mentioned in his application.[7]
[6] See SZHYH v Minister for Immigration & Anor [2007] FMCA 1039 at [4] per Raphael FM and the third Tribunal’s decision 0807105, dated 13 February 2009, at paragraph 25.
[7] See the second Tribunal’s decision 071641386, dated 26 September 2007, at page 6.
At the hearing before the third Tribunal [the applicant] said that he had left his employment at [Company 1] and [Company 2] because he had been elected as the head of his village and according to government regulations an elected official should not have any positions in the private sector. He said that although he had been elected he had not become head of his village because the appointment letter had never come from the authorities. He said that he had resigned from his employment because under normal circumstances there was a 90 per cent chance that an elected person would be appointed. He said that if he had been appointed his title would have been vice-president of the village. He said that although this was the title people regarded this person as the actual president of the village. The Tribunal referred to the fact that the certificate said that he had been elected as the director of the Administrative Committee of [Village 1]. [The applicant] said that the director was equivalent to the vice-president of the village. He said that there were in fact several He said that in formal documents this position was referred to as director, however village people addressed the person in that position as the president of the village.
The Tribunal referred to what [the applicant] had said in his letter dated 24 October 2005 referred to in paragraph 15 above. [The applicant] said that in order to become the president or deputy president a person had to be elected as the director first. The Tribunal put to him that this was not what he had just said. [The applicant] reiterated that a director was referred to as the president or deputy president. The Tribunal put to [the applicant] that this was a different explanation. [The applicant] said that the director was the president or the vice-president of the village but the appointment had to come from the government authorities. He said that he had been elected as the director of the village administration committee and he had been waiting for the appointment from the authority to become the deputy president. He said that the director was the same as the president or the deputy president of the village and that people addressed you as the president or the deputy president. He said that perhaps this was due to his level of education but in his mind a director was the president of the village. He repeated that although he had been elected as the president of the village the actual title would be deputy president of the village.
[The applicant] repeated the claims which he had made in his statutory declaration accompanying his first application as set out in paragraphs 13 and 14 above. He said that after he had been released he had been required to report on a weekly basis and he had reported for the first three weeks but then he had become seriously ill - he had been suffering from [health conditions] and he had not been able to eat - so his wife had approached the PSB to remove the reporting condition until he had recovered. [The applicant] said that he had not had any difficulties in leaving China. He said that, because he had been ill and his wife had paid money to the person looking after his case, this person had not expected that he would leave China. He said that the police officer had been aware that he had been severely tortured in detention. He said that he had not been able to walk when he had been released: he had had to be carried out. He added that nothing in relation to his detention had been recorded in his personal file because this police officer had been paid. He said that lots of people escaped from China every year.
In a letter to the Minister dated [in] March 2010 [the applicant] repeated the claims set out in his statutory declaration accompanying his first application. In July 2010 he produced to the Department a copy of a letter in English dated [in] June 2010 which he said his [child] (who had at the time been [age] years old) had written. The letter referred to the fact that he had been forced to leave home in 2005 and to the fact that his family had struggled to support themselves as a result. It also said that the local government often followed his family, watched them and investigated [the applicant]’s situation with the intention of arresting him.
In a letter dated [in] December 2011 accompanying his current application (which as referred to above was made [in] September 2013) [the applicant] said that in early 2005 a person named [Mr B] had been bullied and had committed suicide and that he had organised gatherings, parades and quiet sittings to protest against the government and to ask for justice. He said that what he had done had infuriated the local government and [in] February 2005 he had been arrested by the PSB. He said that he had been tortured and treated inhumanly. He said that in March 2005 his wife had bribed some people and he had been released on bail. He said that he had come to Australia and had hired a lawyer who he said had taken his money but had not done much. He said that now he was an ‘online wanted fugitive’ and if he returned to China he would be put in prison.

Besides the letter dated [in] June 2010 from his [child] referred to above [the applicant] produced what he described as an ‘Order of Arrest’ and a ‘Detention Warrant’. The first document purports to be a wanted notice which said that he had instigated a riot with violence in [Town 1], [City 1], [in] January 2005 which had resulted in a huge loss of public property, while the second document is a ‘Certificate of Releasing Detention’ stating that he had been detained for investigation from [February] 2005 until [March] 2005 but that ‘[n]ow that the detention expired, the detainee can be released’. [The applicant] said that his wife had sent him these documents [in] November 2011 and that the ‘Order of Arrest’ had been ‘downloaded on the internal website of the Public Security Bureau of [City 1] by my wife through someone in September 2011’ and that the ‘Detention Warrant’ had been ‘copied in the [City 1] Detention Centre by my wife through someone in the August of 2011’. He said that this evidence proved that the Chinese Government had never stopped chasing him.
When he was interviewed by the primary decision-maker in relation to his current application [in] May 2014 [the applicant] said that he had asked his wife to find out if he was still wanted and she had asked for help from a few insiders and had been told that he was still wanted. With regard to why the wanted notice had nothing on it to indicate that it was an official document [the applicant] said that this notice had been downloaded from the internal network of the police. He said that his wife had paid money to obtain this notice but he did not know how much she had paid. He said that he had not known that he was wanted by the authorities in China and he had wanted to go back. He repeated that he had asked his wife to check and his wife had found out that he was still wanted. He said that if he went back to China he would definitely be arrested because he had been on bail when he had left China and he was officially wanted.
Discussion of [the applicant]’s claims
At the hearing before me [the applicant] said that [Company 1] (which he described as the [a certain] company) was located in the [location] in [City 2]. He said that he had also worked at the same time in [Company 2] through the introduction of a friend and he said that this company had been located in [a] Town in [City 1]. After I put to him that he had said in his application that he had only started working for this company in February 2002 whereas he had said that he had been working for [Company 1] since August 1998 he said that it had been a long time and that his main work had been for [Company 1]. He said that when he had been working for [Company 1] in [City 2] he had worked and lived in the company. He said that he had worked for three days a week at [Company 1] and during those three days he had lived in the company.
[The applicant] said that for another three days he had worked in [Company 2] and he had also lived in that [factory]. He said that sometimes he had worked the whole week in one place and he had not gone to the other place. He confirmed that he claimed that he had been living in [Town 1] in [City 1] (where he had been born) even though he had been working and living six days a week at one or other of these two companies. He said that he had ceased working for these two companies in around December 2004. He said that when he had been elected as leader of the village they had not allowed him to continue to work in these two companies. I referred to his statutory declaration made [in] September 2007 referred to in paragraph 6 above and the interpreter read this back to him in Mandarin. [The applicant] said that actually he had worked for these two companies during that timeframe.
I put to [the applicant] that the statutory declaration said that he had worked for [Company 2] until August 2004. [The applicant] said that he could not remember the time but that he remembered that it had been about the time of the village election. I put to him that he had said that the village election had been in December 2004 and that this had been why he had resigned from [Company 1]. [The applicant] said that he only remembered that during the village election he had resigned. I noted that this had been the subject of extensive discussion at previous hearings and he had made this statutory declaration in 2007 saying that he had only worked for [Company 2] until August 2004 but when he had appeared before the third Tribunal he had said that he had still been working for this company in October 2004 when he had first visited Australia. [The applicant] said that he could not remember the exact time or these details because he had suffered persecution and he had a bad memory. I put to him that although he had said that what had been in this statutory declaration had been wrong, in his current application for a protection visa he had repeated that he had stopped working for [Company 2] in August 2004. [The applicant] said that there was no reason for this. I put to him that it was important that I believed that he was telling the truth. [The applicant] said that he was telling the truth but because of the lapse of time and his bad memory there might be mistakes.
[The applicant] confirmed that he claimed that he had been living at the address he had given in his current application in [City 2] immediately before he had left China. He said that he had been living there for around two years. He said that this was his father’s house but that he and his wife and children had lived there. He said that his parents had normally lived in the old house in [Town 1] in [City 1] but sometimes his father had lived in this new house. He said that his household registration (hukou) was at the [City 2] address. He said that when he had worked in [City 1] he had lived in his house. I put to him that this was not what he had told me earlier: he had said that he had lived at [Company 2]. [The applicant] said that the factory in [City 1] was very small and they did not have a dormitory so he had had to stay with his family in his old house. He said that he had lived wherever had been convenient to him. He said that he had forgotten when he and his wife and children had moved to [City 2]. I put to him that in his first application for a protection visa in 2005 he had not mentioned living in [City 2] at all. He had said that up until he had left China he had lived in [Town 1] in [City 1]. [The applicant] said that he had sometimes lived there and sometimes in [City 2]. After I put to him again that in his first application for a protection visa in 2005 he had said that up until he had left China he had lived in [Town 1] in [City 1] he said that he had forgotten to write that he had been living in [City 2]. He said that he had spent half of his time in [Town 1]. He confirmed, however, that for around two years before he had left China he had been living in [City 2] and that his wife and children had been living there as well.
I put to [the applicant] that at the hearing before the third Tribunal in 2009 he had said that his parents and his wife and children had all lived with him in [City 1]. [The applicant] said that he could not remember the detail. He said that after he had left China his wife and children had continued living at the address he had given in [City 2] and he said that they were still living there now. I put to him that at the hearing before the third Tribunal in 2009 he had said that his wife and children had moved from [City 1] [in] May 2005, the day after he himself had arrived in Australia. [The applicant] said that they must have moved out because people had wanted to arrest him and they had tried to evade this. I put to him that he had just told me that they had already been living in [City 2] and that they had continued to live there. I put to him that at the hearing in 2009 he had said that his wife and children were living in [another] Province. [The applicant] said that he believed that they had hidden themselves in [the other] Province because people had wanted to arrest him. I put to him that he had just told me that they had continued living in [City 2]. [The applicant] said that he had meant that their hukou or household registration had still been there but because the police had wanted to arrest him they had hidden themselves in another place. He then said that they had actually lived in [City 2] but for a short period they had run away from there to another place. He said that when the whole thing had not been so tight they had moved back to [City 2].
I put to [the applicant] that if I believed what he had said at the hearing in 2009 they had not just moved to [the other] Province for a short period. I put to him that at the hearing in 2009 he had said that they had moved from [City 1] to [the other] Province [in] May 2005 and that they had still been living there at the time of the hearing in January 2009. [The applicant] said that they had gone to [the other province] but he could not remember the exact time. He repeated that their hukou been in [City 2]. He said that it was the fact that his wife had escaped to her [relative]’s place in [the other] Province because she had thought that she might be involved. I put to him that at the hearing in 2009 he had said that his children had enrolled at the local school in [the other] Province but that they had not enrolled using their real names. [The applicant] said that they had been afraid of being arrested.
I put to [the applicant] that in 2010 he had produced a letter supposedly written by his [child] which made no reference to his family having gone to [another] Province. [The applicant] said that by that time they had gone back to [City 2]. I put to him that there was no suggestion in the letter that they had ever left [City 2] or that they had ever been in hiding. [The applicant] said that they had not been in hiding in [City 2]. He said that they had known that it would be him who would be arrested. I put to him that the letter referred to all the problems they had been having with the authorities. [The applicant] said that he could only remember a bit of what was written in this letter because it was written in English. He said that he remembered that the letter said that they had been harassed and that the government had asked if he was home because they had wanted to investigate him.
I put to [the applicant] again that the letter made no mention of them having gone to [another] Province and that if they had been having the problems described in the letter they could presumably have gone to [the other] Province again. [The applicant] said that their hukou had not been there and they had heard from other people that he was the only one who would be captured by the government and that his family were not involved. I put to [the applicant] that as I understood it the whole purpose of the letter had been to describe the authorities’ interest in him and all the problems this had been causing for his family. I put to him that the letter referred, for example, to problems his [child] had been having at school because the headmaster had been making remarks about [the child] and the problems [family] background had caused [the child] at school. It had said that [the child] had often been ridiculed and insulted by [classmates] and that they had even kicked and hit [the child]. [The applicant] repeated that he did not know exactly what was in the letter. He said that he only understood that the government had been trying to capture him.
I put to [the applicant] again that when he had appeared before the third Tribunal in 2009 he had said that his family had fled to [the other] Province and that his children had enrolled in school there under false names. [The applicant] said that because of the crime he had committed his wife and children had hidden in his wife’s [relative]’s place in [the other] Province and his children had used false names to enrol in school for a certain period. He said that later on they had been faced with many problems so they had gone back to [City 2]. He said that his wife and children had not been able to stay in [the other] Province continuously and they had not been able to sit for examinations. I put to him once again that he had told me earlier in the hearing that his wife and children had been living in [City 2] for the whole time since he had left China. I put to him again that there was no suggestion in the letter which he had produced from his [child] that they had ever lived in [the other] Province. [The applicant] said that they really had gone to [the other] Province and he repeated that he did not know what the letter said. He said that if I asked him where they lived he would definitely tell me they lived in [City 2].
I referred to [the applicant]’s evidence that in December 2004 he had been elected as the president or deputy president of his village. I put to him that as we had discussed he had produced a certificate to the first Tribunal which had said that he had been elected as the director of the Administrative Committee of [Village 1]. [The applicant] said that this was the deputy leader of the village. He then said that the leader of the village was actually the director of administration of the village. I put to him that what he had said previously was that, although he had been elected as the director, the government had had to appoint him as either the president or the deputy president. [The applicant] said that this was correct. I put to him that he had just told me that the director of administration was the leader of the village. [The applicant] repeated that in China the director of administration was the village leader. He said that there were only two offices: the director of administration and the secretary of the village who he said was a member of the Communist Party.
I put to [the applicant] that this was another matter on which he had given different evidence at different times. He had produced the certificate which said that he had been elected as the director and on some occasions he had said that the director was known as the head or the leader of the village but on other occasions he had said that he had had to be appointed by the government as the deputy president or president of the village. [The applicant] repeated that the director of administration was the leader of the village in China. I asked him why he would have been elected to this position in [Village 1] if, as he had said, he had been living in [City 2] for two years before he had left China. [The applicant] said that he had been born and had grown up in [Village 1]. I put to him that he had said that his hukou was in [City 2]. [The applicant] said that his hukou was in [City 2] but he had spent half of his time in [Village 1].
I put to [the applicant] that he had told me that two years before he had left China he had moved to live in his father’s house in [City 2]. [The applicant] said that he had spent half of his time in [City 2] and half of his time in his old house. I put to him that he had told me that he and his wife and children had all been living in [City 2]. [The applicant] said that people in the village in [City 1] had known him because he had grown up there. I put to him that the people in the village would have known that he had moved away to [City 2]. I put to him that this made it difficult for me to accept that he would have been elected as the director of administration or the head of the village. I put to him that he had not been living there for two years. [The applicant] repeated that he had been born there and that whatever happened it would always be his hometown. He said that people had been able to see him very often in his old house. He said that although his hukou had been in [City 2] this was not related to the election.
I referred to [the applicant]’s evidence that he had organised gatherings, parades and quiet sittings to protest against the government and to ask for justice and I asked him when he had done this. [The applicant] said that he forgot whether this had been in 2004 or 2005. I put to him that he had said that the election had only been [in] December 2004. [The applicant] said that it had been after the election. He referred to his evidence that a person named [Mr B] had committed suicide and he said that then the villagers had gathered together. He said that he had not been appointed officially. I put to him that he had told me earlier in the hearing that because he had been elected as the director he had been the head of the village. [The applicant] said that he had been appointed but he had not been issued with a certificate. I queried his reference to his having been appointed. He referred to the certificate which he had previously produced saying that he had been elected as the director.
[The applicant] said that the villagers had gathered together to protest because there were too many taxes and the villagers did not have freedom or human rights by which he said he meant that the tax had been too heavy and this made it hard for the villagers to breathe. He repeated that there were many taxes: land tax, working tax and ‘three gold’ tax which he said was a government rule. He said, for example, that, since his village was close to the sea, fishing would be taxed, the land would be taxed and when you worked you would be taxed. He said that another one was giving birth to excess children. I noted that [the applicant] himself had two children. [The applicant] said that the second child had been born after a gap of five years. He said that the family planning authorities would allow you to have a second child after five years. He said that if you gave birth to a child within this five year gap it would make the family broke. He said that the government gave different families different taxes and they asked certain families to give extra tax. He said that they just found any tax for you to pay. He said that he was referring to the government in [Town 1]. He confirmed that he claimed that the government in [Town 1] was responsible for the land tax, the working tax, the fishing tax and the family planning tax. He said that this order was distributed by [Town 1] to [Village 1]. He said that the government collected these taxes and they did not know whether they were being taxed by certain people. I put to [the applicant] that because his hukou had been in [City 2] he would not have had to pay these taxes. [The applicant] agreed that he had not had to pay but he said that other villagers had had to pay.
[The applicant] said that the protests to which he had referred had taken place in [Town 1] and also in [City 1]. He confirmed that there had been two separate protests but he said that he could not remember if these had been on separate days. He said that he had been the organiser by which he said he meant that he had taught the villagers to protest in a peaceful and reasonable way. He said that they had also drafted a proclamation asking the government to give the common people freedom and human rights, mainly because one person had died. I put to [the applicant] that he had said that this had been a protest about taxes. [The applicant] said that this person had died because of the tax: they had had an extra child and they had not been able to afford the tax. He said that because of this many people had become rebellious. He said that he had been worried that they might say the wrong word during the protest.
[The applicant] said that the protest in [Town 1] had been in front of the town government. He said that they had quietly sat there and they had raised placards. He said that because of the death of this person they had asked for a reduction in tax, they had asked them to treat the villagers in a fair way, with human rights, and they had asked for compensation for the person who had died. He said that the villagers had sat outside quietly, holding placards, while he had entered the town government to negotiate with them. He said that he had also sent people to [City 1] to deal with the government. [The applicant] said that the authorities had convinced the villagers to go home. He said that the police had been chasing them because they had said that they had been interfering with the social order and they had blocked the traffic so they had wanted them to go home. He confirmed that this had been on the day of the protest and he said that the police had pushed and dragged people. He said that the authorities had lied to him and cheated him, saying that they had agreed to the villagers’ demands. He said that as soon as this had been agreed the villagers had gone home.

[The applicant] confirmed that he claimed that he had been arrested in February, maybe a few days later. I put to him that the wanted notice which he had produced said that he had instigated a riot with violence in [Town 1] which had resulted in a huge loss of public property. [The applicant] said that they had just put these accusations on him. He said that these accusations were not true. He said that this was government corruption. I asked him if the protest had been [in] January 2005, as the notice said. [The applicant] said that he had forgotten the exact time. He confirmed that he claimed that he had been arrested [in] February 2005, Chinese New Year’s Eve. I put to him that this would mean that he had been arrested over two weeks after the protest. [The applicant] repeated that he could not remember the exact time. He said that when he had been arrested [in] February 2005 he had been beaten and he had told his wife that he could not tolerate it any more. He said that his wife had spent some money and he had been released on bail [in] March 2005. He said that since he had been afraid that he might be arrested again he had gone abroad. He said that since he had breached the bail terms they had issued a warrant for his arrest. He said that he had been sentenced in his absence, then that he did not know if this had happened.
I put to [the applicant] that the wanted notice said that the protest had been [in] January 2005 but he had said that he had only been arrested [in] February 2005. I put to him that it was a little difficult to accept that if the government had wanted to stop him from organising protests they would have waited for over two weeks before arresting him. [The applicant] said that according to the government’s standard operating procedure they would not set a certain day for a certain case. He said that they might think which day was the most important date so they would write down that date. I asked him if he was saying that they had waited for Chinese New Year’s Eve because it was an important date. [The applicant] said that it was a matter for them when they would arrest him. He said that he had not known why and when they would arrest him because of his organising the public.
I put to [the applicant] again that it was difficult for me to accept that if they had been concerned about his activities in organising this protest they would have waited for over two weeks to arrest him. [The applicant] said that after the initial protest he had also spent a few days at the [City 1] Government. He said that sitting quietly had only taken one day. I referred to the ‘Certificate of Releasing Detention’ which he had produced. [The applicant] said that he would be beheaded in China. I put to him that China did not behead anyone and that making these sorts of claims did not help his case. I put to him that the ‘Certificate of Releasing Detention’ did not say anything about him being released on bail. [The applicant] said that this kind of document not only applied to him but to other people. He said that because he had been bailed this did not mean that they would put extra things in that document. I put to him that he had produced this document to support his claims but it simply said that he had been detained for investigation and that now that the period of detention had expired the detainee could be released. [The applicant] said that this document showed that he had been detained. He said that actually he had been bailed and released. He repeated that he had asked his wife to give some money for his release. He said that if he had been summoned he would have had to report to them immediately.
I put to [the applicant] that he had said that he had actually had to report to the police every week but that this condition had been removed after three weeks because he had become seriously ill. [The applicant] said that this had been an excuse because he had already paid money for his bail. He said that actually his case had not been resolved. He said that he had had to report to them weekly to ensure that he was not escaping but then he had escaped to Australia. He said that since he had not reported he had been wanted.
[The applicant] confirmed that he claimed that he had left China travelling on a passport in his own name [in] May 2005. I put to him that it was difficult to accept that the authorities would have let him keep his passport at all if he had been released on bail as he claimed. [The applicant] said that the people in charge of his visa application had been people from the same town. He said that he had a friend [Ms A] who had helped him through paying some money. He said that of course he had had to hold a passport when he had gone abroad. He said that he did not understand how this friend had done this for him through certain channels. I put to [the applicant] that we were not talking about how he had obtained the visa to come to Australia: we were talking about how he had been able to leave China travelling on a passport in his own name when he claimed that he had been on bail. [The applicant] said that he had paid money to [Ms A] and she had taken charge of his documents. He said that money was very powerful in China. He confirmed that he was claiming that [Ms A] had helped him to leave China as well as helping him to get a visa to travel to Australia.
I put to [the applicant] that I had two problems with the way in which he had left China. I put to him that if he had been released on bail they would have asked him to surrender his passport as a condition of the bail. [The applicant] said that they had not kept his passport: they had only arrested him during the night. I put to him again that it was difficult to accept that this was true. [The applicant] responded that it was true. I put to him that it was also difficult to accept that he would have been able to leave China travelling on a passport in his own name. I put to him that departing passengers were checked against alert lists and China had a computerised national policing network.[8] [The applicant] responded that of course there was a national computer network. He said that he did not know how [Ms A] had bought out people to allow him to pass this.
[8] DFAT Country Report - People’s Republic of China, 3 March 2015, paragraph 5.16; Immigration and Refugee Board of Canada, ‘China: Whether the Public Security Bureau (PSB) has set up a national computer network for information sharing; nature and extent of communication between PSB offices across the country; whether a link to a police computer network is available at international airports in China (2006 - May 2009)’, 2 July 2009, CHN103133.E.
I indicated to [the applicant] that I would take into account what he had said but this was just another inconsistency in his evidence. I put to him that there were a lot of inconsistencies in his evidence and this was relevant to whether I believed he was telling the truth or not. I put to him that the Australian Department of Foreign Affairs and Trade had advised that fraudulent documents were relatively easy to produce in China.[9] I put to him that I might give greater weight to the problems I had with his evidence than I did to the documents he had produced. I put to him that I might not accept that he had in fact been arrested or that he had been on bail when he had left China or that he was regarded by the Chinese authorities as an anti-government activist because he had organised protests. I put to him that I might not accept that he came within the complementary protection criterion. [The applicant] said that he had only provided me with the important evidence and he could not tell me exactly about other details. He said that his evidence was surely true. He repeated his claim that if he gave false evidence he would be beheaded in China. He said that he had already submitted all the evidence that he had been in the black-list in 2011.
[9] DFAT Country Report - People’s Republic of China, 3 March 2015, paragraph 5.26.
I asked [the applicant] what he meant when he claimed that he had been in a black-list. [The applicant] said that he had been refused by the Department in 2010 and then he had been put in the black-list by which he said he meant that he had become illegal. I put to him that Australia did not have a black-list. [The applicant] said that he did not mean black-list but illegal stay, without a visa. He confirmed that he was referring to the fact that his Australian visa had expired. He said that then he had submitted these documents in 2011. He asked how he could take the risk of being beheaded. He said that later on he had been given another opportunity. He said that he had not known that he would be given another opportunity. I put to him that he had been appealing to the Minister. [The applicant] referred to the fact that he had been refused. I put to him that this had been the context in which he had produced these documents. [The applicant] repeated that he had produced these documents when he had overstayed his visa. He said that he had not had any hope about that. He repeated that later he had heard that he had been given another opportunity to appeal.
Conclusions
As I put to [the applicant], there are a lot of inconsistencies in his evidence and this is relevant to his credibility, that is, to whether I believe he is telling the truth or not. I accept that the relevant events took place over ten years ago and I have noted [the applicant]’s claims that he has a bad memory which he attributes in part to the persecution which he claims to have suffered in the past. However many of the inconsistencies in his evidence date back to the time when his first application was being considered, at which time the relevant events would presumably have been fresher in his memory. Moreover I have difficulty in accepting that [the applicant] would have such difficulty giving consistent evidence about where he lived and his employment history if he were telling the truth, even taking into account the lapse of time and his claimed memory problems.
By way of example, in his first application, made in 2005 when these matters would presumably have been freshest in his memory, [the applicant] only referred to his employment with [Company 1] from August 1998 until December 2004. After he was confronted with the fact that he had claimed to be employed by [Company 2] when he had applied for a visa to travel to Australia he said that he had forgotten to mention his employment with [Company 2] to the migration agent who had assisted him to prepare his application for a protection [visa]. He subsequently made a statutory declaration [in] September 2007 in which he said that from January 2002 to August 2004 he had worked at [Company 2] and that he had normally worked there for 15 hours a week while he had normally worked about 25 hours a week at [Company 1].
At the hearing before the third Tribunal, however, [the applicant] said that his first trip to Australia, in October 2004, had been a business trip and that he had been sent here by [Company 2]. After the Tribunal asked him why he would have come here on a business trip for [Company 2] in October 2004 if he had ceased working for the company in August 2004 he said that because it was some time ago he was confused with the dates. He said that perhaps he could start from the beginning and give the Tribunal the correct information. He said that because he had been beaten in the past this had affected his memory. He said that the truth was that he had kept working in the company until December 2004. He claimed that he had stated that his employment had ceased in August 2004 because he had been confused and he had not been thinking clearly. He said that he had not referred to his employment with [Company 2] in his first application for a protection visa because he had not felt it was necessary because he had believed that the Department would have all the records in relation to his business trip sponsored by the company.
While I accept that the Department did have all the records in relation to [the applicant]’s previous applications for visas to travel to Australia I do not consider that this relieved him of the obligation to give truthful answers about his past employment in his first application for a protection visa. Moreover, as I put to [the applicant], although he said at the hearing before the third Tribunal that the truth was that he had continued working for [Company 2] until December 2004, in his current application for a protection visa he said that he had stopped working for [Company 2] in August 2004. [The applicant] said that he could not remember the exact time or these details because he had suffered persecution and he had a bad memory. He said that he was telling the truth but because of the lapse of time and his bad memory there might be mistakes. However I have difficulty in accepting that, even taking into account the lapse of time and his claimed memory problems, [the applicant] would not recollect whether he had stopped working for [Company 2] in August 2004 or whether he had still been working for the company in October 2004 when he first visited Australia on what he has said was a business trip for that company. As I put to him, I consider that these inconsistencies in [the applicant]’s evidence go to whether I can accept that he telling the truth.
In his first application [the applicant] also said that he had lived in [Town 1] in [City 1] from May 1995 until April 2005 and he confirmed this at the hearing before the third Tribunal on 15 January 2009. However in his current application he said that he had lived at an address in [City 2] from March 2002 until May 2005. When he was interviewed by the primary decision-maker in relation to his current application [in] May 2014 he confirmed that he had lived at this address [City 2] for three years before he had left China. At the hearing before me he said that he had been living at this address for around two years before he had left China and that his household registration or hukou was at this address. I do not attach any significance to the discrepancy between his having lived at this address for two years or three years but I do attach significance to the fact that, as I put to him, in his first application for a protection visa in 2005 he did not mention living in [City 2] at all. [The applicant] said that he had sometimes lived there and sometimes in [City 2] and he gave evidence to me that when he had been working for [Company 1] in [City 2] he had lived in the company. He also said initially that when he had been working for [Company 2] in [a] Town in [City 1] he had lived in the [factory] but he said subsequently that the factory in [City 1] was very small and that they did not have a dormitory so when he had been working there he had had to stay with his family in his old house in [Town 1] in [City 1]. He said that he had spent half of his time in [Town 1] but he confirmed that for around two years before he had left China he had been living in [City 2] and that his wife and children had been living there as well.
I consider that the inconsistency in [the applicant]’s evidence with regard to where he was living immediately before he left China cannot be explained on the basis of the lapse of time or his claimed memory problems, given that he claimed in his first application, made in 2005 when these matters would presumably have been freshest in his memory, that he had been living in [Town 1] up until April 2005 whereas he now says that he had been living in [City 2] with his wife and children for at least two years by that time and that his household registration or hukou was at this address. Once again I consider that this inconsistency in his evidence is relevant to his credibility. [The applicant] also gave inconsistent evidence at the hearing before me with regard to where his wife and children had been living after he had left China. He initially said that after he had left China his wife and children had continued living at the address he had given in [City 2] and that they were still living there now. After I put to him that at the hearing before the third Tribunal in 2009 he had said that they had gone to live with his wife’s [relative] in [the other] Province [in] May 2005, the day after he himself had arrived in Australia, and that they were living in [the other] Province at the time of the hearing in 2009, he said that they had gone to [the other province] but that he could not remember the exact time. He said that when he had stated that they had continued living in [City 2] he had meant that their hukou or household registration had been there. As I put to him, I consider it relevant that the letter which he produced supposedly written by his [child] makes no reference to his family ever having gone to [the other] Province. [The applicant] said that they had really gone to [the other] Province but that if I asked him where they lived he would definitely tell me that they lived in [City 2]. Once again I consider that these inconsistences in [the applicant]’s evidence are relevant to his overall credibility.
[The applicant] has claimed that [in] December 2004 he was elected as the president of [Village 1]. In support of this claim he produced to the first Tribunal what is described as a ‘Certificate of the Villagers Committee Member’ issued [in] December 2004 and stating that he had been elected as the Director of the Villagers Committee. In a letter to the Tribunal dated 24 October 2005 [the applicant] said that this document was evidence that he had been successfully elected as the Director of the Administrative Committee of [Village 1] at the election [in] December 2004. He said that according to relevant policies a candidate had first to be elected as the Director of the Administrative Committee and then appointed by the government as the president or deputy president but he had not been genuinely appointed as the president or the deputy president for the reasons he had mentioned in his application. At the hearing before the third Tribunal [the applicant] said that although he had been elected he had not become head of his village because the appointment letter had never come from the authorities. He said that if he had been appointed his title would have been vice-president of the village. He said that although this was the title people regarded this person as the actual president of the village.
At the hearing before me, after I referred to the fact that [the applicant] had said that he had been elected as the director of the Administrative Committee of [Village 1], he said that this was the deputy leader of the village. He then said that the leader of the village was actually the director of administration of the village. I put to him that what he had said previously was that, although he had been elected as the director, the government had had to appoint him as either the president or the deputy president. [The applicant] said that this was correct. I put to him that he had just told me that the director of administration was the leader of the village. [The applicant] repeated that in China the director of administration was the village leader. He said that there were only two offices: the director of administration and the secretary of the village who he said was a member of the Communist Party. As I put to [the applicant], I consider that this is another matter in relation to which he has given inconsistent evidence. He has produced the certificate stating that he was elected as the director and on some occasions he has said that the director is known as the head or the leader of the village but on other occasions he has said that he had to be appointed by the government as the deputy president or president of the village. [The applicant] repeated that the director of administration was the leader of the village in China. I remain of the view that there are significant inconsistencies in [the applicant]’s evidence in this regard.

As I put to [the applicant], I also have difficulty in accepting that he would have been elected to this position in [Village 1] if, as he said at the hearing before me, he had been living in [City 2] for two years before he left China. [The applicant] said that he had been born and had grown up in [Village 1] but, as I put to him, he said at the hearing before me that his hukou was in [City 2]. [The applicant] said that his hukou was in [City 2] but he had spent half of his time in [Village 1] and he said that people in the village had known him because he had grown up there. However, as I put to him, I consider that the people in the village would have known that he had moved away to [City 2]. [The applicant] repeated that he had been born there and that whatever happened it would always be his hometown. He said that people had been able to see him very often in his old house. He said that although his hukou had been in [City 2] this was not related to the election. I remain of the view that it is difficult to accept that [the applicant] would have been elected as the director of administration or the head of [Village 1] when he had moved to live in [City 2] two years previously.
[The applicant] has consistently said that he was arrested [in] February 2005, Chinese New Year’s Eve, and at the hearing before me he said that this had maybe been a few days after the protests which he claims to have organised in [Town 1] and [City 1]. As I put to him, the wanted notice which he has produced - if it were accepted as genuine - suggests that the protest in [Town 1] took place [in] January 2005. [The applicant] said that he had forgotten the exact time. After I put to him that it was a little difficult to accept that, if the government had wanted to stop him from organising protests, they would have waited for over two weeks before arresting him, he said that according to the government’s standard operating procedure they would not set a certain day for a certain case. He said that they might think which day was the most important date so they would write down that date. After I asked him if he was saying that they had waited for Chinese New Year’s Eve because it was an important date he said that it was a matter for them when they would arrest him. He said that he had not known why and when they would arrest him because of his organising the public. I accept that it would of course have been a matter for the Chinese authorities when they arrested [the applicant] but I remain of the view that it is difficult to accept that, if the protest had taken place [in] January 2005 as suggested by the wanted notice - which [the applicant] maintains is genuine - the Chinese authorities would then have waited for over two weeks before arresting him.
After I put to [the applicant] that the ‘Certificate of Releasing Detention’ which he had produced did not say anything about him being released on bail, as he had claimed, [the applicant] said that this kind of document not only applied to him but to other people. He said that because he had been bailed this did not mean that they would put extra things in that document. After I put to him that he had produced this document to support his claims but it simply said that he had been detained for investigation, and that now that the period of detention had expired the detainee could be released, [the applicant] said that this document showed that he had been detained. He said that actually he had been bailed and released. With regard to his evidence that he had had to report to the police every week but that this condition had been removed after the three weeks because he had become seriously ill, he said that this had been an excuse because he had already paid money for his bail. He said that actually his case had not been resolved. He said that he had had to report to them weekly to ensure that he was not escaping but then he had escaped to Australia. He said that since he had not reported he had been wanted. Quite apart from the fact that the ‘Certificate of Releasing Detention’ makes no mention of [the applicant] having been released on bail, his evidence that he is wanted because he did not report to the police is inconsistent with his previous claim that the reporting condition on his bail had been removed because he had become seriously ill.
As I put to [the applicant], I also find it difficult to accept that he would have been able to leave China travelling on a passport in his own name at a time when he claims he was on bail. As I put to him, I find it difficult to accept that the authorities would not have asked him to surrender his passport as a condition of his bail. [The applicant] said that they had not kept his passport but, as I put to him, I find it difficult to accept that this is true. As I likewise put to [the applicant], departing passengers are checked against alert lists and China has a computerised national policing network.[10] When this issue was raised at the hearing before the third Tribunal in 2009 [the applicant] said that, because he had been ill and his wife had paid money to the person looking after his case, this person had not expected that he would leave China. He said that the police officer had been aware that he had been severely tortured in detention. He said that he had not been able to walk when he had been released: he had had to be carried out. He added that nothing in relation to his detention had been recorded in his personal file because this police officer had been paid. He said that lots of people escaped from China every year. At the hearing before me [the applicant] said that he had paid money to his friend [Ms A]. He said that of course there was a national computer network and that he did not know how [Ms A] had bought out people to allow him to pass this. I accept that [the applicant] said in the statutory declaration accompanying his first application that [Ms A] had ‘arranged me to leave the country early in May 2005’ but, as I put to him, he had previously suggested that she had arranged his visa for him but not that she had paid money to facilitate his departure from China when he was on bail. As I put to him, I consider that this is another inconsistency in his evidence.
[10] DFAT Country Report - People’s Republic of China, 3 March 2015, paragraph 5.16; Immigration and Refugee Board of Canada, ‘China: Whether the Public Security Bureau (PSB) has set up a national computer network for information sharing; nature and extent of communication between PSB offices across the country; whether a link to a police computer network is available at international airports in China (2006 - May 2009)’, 2 July 2009, CHN103133.E.
For the reasons given above I do not accept that [the applicant] is a witness of truth having regard to what I consider to be the significant inconsistencies in his evidence. As I put to him, the Australian Department of Foreign Affairs and Trade has advised that fraudulent documents are relatively easy to produce in China[11] and I give greater weight to the problems I have with his evidence than I do to the documents which he has produced in corroboration of his claims. [The applicant] claimed that he would be beheaded in China if he gave false evidence or produced false documents. However, as I put to him, while I accept that China retains the death penalty,[12] there is nothing in the evidence before me to suggest that China beheads anyone. I do not accept on the evidence before me 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 or specifically that he will be beheaded or that the death penalty will be carried out on him because he has given false evidence or produced false documents to the Australian authorities. [The applicant] also referred to the fact that he had produced the wanted notice and the ‘Certificate of Releasing Detention’ after his first application had been refused and when he had not known if he would be given another opportunity but, as I put to him, my understanding is that he produced these documents when he was appealing to the Minister.[13]
[11] DFAT Country Report - People’s Republic of China, 3 March 2015, paragraph 5.26.
[12] DFAT Country Report - People’s Republic of China, 3 March 2015, paragraph 4.3.
[13] Indeed the letter dated [in] December 2011 which was submitted with his current application and in which he made reference to these documents is addressed to the Minister.
Having regard to the problems which I have with [the applicant]’s evidence I do not accept that he was elected as the director of the administrative committee or the head of [Village 1] in December 2004, nor that he organised protests in [Town 1] and [City 1] in January or February 2005, nor that he was arrested by the PSB [in] February 2005 and tortured, nor that his wife paid money to obtain his release on bail [in] March 2005. I do not accept that he was on bail at the time he left China travelling on a passport in his own name, nor that he was required to report to the authorities, nor that because he did not report he is a wanted man in China, nor that he has been sentenced in his absence. I do not accept that a friend, [Ms A], paid money to enable him to evade the controls on people departing China. Having regard to the problems which I have with [the applicant]’s evidence I do not accept that his wife and children moved to [another] Province after he left China. I find that, as he said at the hearing before me, they have continued living in [City 2] throughout the time he has been in Australia. I do not accept that they or his parents have had any problems with the authorities and I do not accept in particular that his [child] has had the problems referred to in the letter in English which he produced. I do not accept that, as [the applicant] has claimed, he is regarded by the Chinese authorities as an anti-government activist or as a person who has strong anti-government ideologies and dissident political opinions. I do not accept that he has ever been of any interest to the Chinese authorities. I do not accept on the evidence before me, therefore, 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 as defined in subsection 36(2A) of the Migration Act.
CONCLUSIONS
For the reasons given above, I am not satisfied on the evidence before me that [the applicant] satisfies the criterion set out in paragraph 36(2)(aa) of the Act for a protection visa. There is no suggestion that he satisfies subsection 36(2) on the basis of being a member of the same family unit as a person who satisfies paragraph 36(2)(a) or (aa) and who holds a protection visa. Accordingly, [the applicant] does not satisfy the criterion in subsection 36(2) for a protection visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Giles Short
Senior Member

ATTACHMENT A - RELEVANT LAW
In accordance with section 65 of the Migration Act 1958, the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 have been satisfied. The criteria for the grant of a Protection (Class XA) visa are set out in section 36 of the Act and Part 866 of Schedule 2 to the Regulations. As applicable to this application subsection 36(2) of the Act provided that:
‘(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(aa)a non citizen in Australia (other than a non citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non citizen being removed from Australia to a receiving country, there is a real risk that the non citizen will suffer significant harm; or
(b)a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)a non citizen in Australia who is a member of the same family unit as a non citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.’
Complementary protection criterion
An applicant for a protection visa who does not meet the refugee criterion in paragraph 36(2)(a) of the Act may nevertheless meet the complementary protection criterion in paragraph 36(2)(aa) of the Act, set out as relevant to this application above. The Full Court of the 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 Refugees Convention as referred to above (see Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 at [246] per Lander and Gordon JJ with whom Besanko and Jagot JJ (at [297]) and Flick J (at [342]) agreed). ‘Significant harm’ for the purposes of the complementary protection criterion is exhaustively defined in subsection 36(2A) of the Act: see subsection 5(1) of the Act. A person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’. The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in subsection 5(1) of the Act.
Ministerial direction
In accordance with Ministerial Direction No. 56, made under section 499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration and Citizenship - ‘PAM3: Refugee and humanitarian - Complementary Protection Guidelines’ and ‘PAM3: Refugee and humanitarian - Refugee Law Guidelines’ - and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Credibility
As Beaumont J observed in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451, ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for’. However this should not lead to ‘an uncritical acceptance of any and all allegations made by suppliants’. As the Full Court of the Federal Court (von Doussa, Moore and Sackville JJ) observed in Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997):
‘Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another’ (citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282)
As the Full Court noted in that case, this statement of principle is subject to the qualification explained by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ where they observed that:
‘in determining whether there is a real chance that an event will occur, or will occur for a particular reason, the degree of probability that similar events have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future.’
If, however, the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 per Sackville J (with whom North J agreed) at 241. Furthermore, as the Full Court of the Federal Court (O’Connor, Branson and Marshall JJ) observed in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9, there is no rule that a decision-maker concerned to evaluate the testimony of a person who claims to be a refugee in Australia may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies. Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case.