1414605 (Refugee)

1414605 (Refugee) [2015] AATA 3972 (29 July 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1414605
COUNTRY OF REFERENCE:                  China
MEMBER:Chris Keher
DATE:29 July 2015
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 29 July 2015 at 4:13pm
CATCHWORDS
Refugee – Protection Visa – China – Fear of harm from authorities – Governmental corruption – Witness credibility – Fabricated evidence – Vague and inconsistent evidence
LEGISLATION
Migration Act 1958, ss 36, 65, 91R, 91S, 499
Migration Regulations 1994, Schedule 2
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

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who the Tribunal accepts to be citizens of China, applied for the visas on [in] January 2014 and the delegate refused to grant the visas [in] August 2014.
The applicants appeared before the Tribunal on 8 July 2015 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicants were represented in relation to the review by their registered migration agent. The agent did not attend the hearing or make any submissions.
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
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.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or 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.
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. 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: s.91R(1)(a) of the Act.
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. 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.
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.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). 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 to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
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 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; where 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: s.36(2B) of the Act.
Section 499 Ministerial Direction
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 –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, and the Tribunal has done so.
Member of the same family unit
Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include a spouse.
CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicants and then on any accepted claims whether the above criteria is met. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicants are [name removed] (the applicant) and [name removed] (the applicant wife). They are husband and wife and married on [in] August 1995. They lived at the one address in [Zhejiang] Province from January 2004 to October 2013.They are both citizens of the People’s Republic of China. The applicant is [age] years old and the applicant wife is [age] years old. They have a son who is [age] years old and who resides in China. The applicant wife’s brother resides in Australia and is married. Other family members reside in China.
The applicant has completed a Form C, being for a person who has their own claims for protection. The applicant wife has completed a Form D, being a member of the same family unit and who does not have their own claims for protection.
They arrived in Australia [in] October 2013 on [temporary visas] to cease [in] January 2014.They each used passports issued to them by the authorities in China. The applicant’s passport was issued to him [in] 2008 and the applicant wife’s on [in] 2008. They provided selected pages of their passports (folios 1 to 8). They applied for the visas [in] January 2014.
The applicant was educated for [a number of] years to [date removed] and the applicant wife for [a number of] years to [date removed].
The applicant claims he was a businessman in China. He claims that following his leaving [school] he then worked for 10 years for different [businesses]. In June 1995 he set up the [Company 1] in his hometown and until 2008 this operated “normally and smoothly”.
He claims his brother-in-law [Mr A] had a [business] in Guizhou Province and as a consequence of his involvement in protests was [detained] and went to a re-education camp for [a number of] months. He then came to Australia in May 2008 and was later granted a protection visa.
The applicant claims that when his brother-in-law was in trouble he would travel to Guizhou Province to deal with some matters relating to his [business], and after his brother-in-law left from China he was implicated in the case and investigated by the PSB to see if he had also been involved in anti-government activity, and if he had helped him to depart from China. He claims that despite being investigated nothing was found against them. They thought at the time to also go overseas, and so obtained passports in 2008 through a friend [Mr B], whose [relative] worked at [a government department]. He hesitated to make any “financial decision” about leaving the country as he didn’t want to lose his [company] he had worked hard for since 1995.
He claims that in December 2008 a person named [Mr C] came to him saying he wanted to join the business, and if so he would ensure no further problems relating to his brother-in-law [Mr A]. He could do this as his uncle was [a public official] and his father [was also a public official]. The applicant claims he agreed to this; gave him a [holding] of shares, and made him [a particular position].
He claims [Mr C] caused a lot of trouble in the following years and “treated employees cruelly and inhumanely, forcing them to overwork, abusing or even beating up them”. He also employed his own relatives and friends, though few worked properly. [Mr C] warned him that the [business] would have closed but for him if he hadn’t joined the business.
He claims in about October 2012 [Mr C] [embezzled] from the business with an excuse of developing a new project. The applicant’s accountant had previously told him that [Mr C] had taken money from the business, however he did nothing about it, as he didn’t want trouble and it wasn’t much money. He claims he asked [Mr C] for a report on the new project but he kept making excuses and continued to take money.
He claims [in] 2013 he was arrested by the PSB on an allegation he had borrowed [from] the bank under the [business] name and hadn’t made repayments. He then realised that [Mr C] had borrowed the money from the bank. He told the PSB he knew nothing about the matter. He suspected the bank staff may have also been involved to “cheat the money from the bank”. He claims that otherwise it would have been impossible for [Mr C] to get the money from the bank without his approval. The police he claims didn’t listen to his explanations and he was transferred to a detention centre.
He claims he was held for [a number of] months from [a date in] 2013 to [a date in] 2013. He claims that he was forced to accept the allegations and sign documents. He was treated badly in detention by the police who “used various cruel methods to torture me during interrogations”. He was eventually released, but the [business] by then had been closed and all of the property of the [business] closed to repay the loan. His wife had contacted his friend [Mr B] but he couldn’t help.
He claims he then thought why [Mr C] had needed so much money and knew that he had a lover named [name removed]. He eventually found out they had been operating an “[illicit business] since [2012]” and [details of illicit activities] and these activities had been secretly protected by the local [police].
He claims that after finding this out he went to the local police to complain about [Mr C], his father and uncle, as well as the corruption of the PSB. [In] 2013 he claims he had a meeting with [a number of] officials from [a particular government department]. They seemed interested and said they would investigate the matter and told him to return home but not mention this to anyone.
He went home and didn’t tell anyone, not even his wife or friend [Mr B], as he was afraid they would object to what he had done. When he left home he said he was going to look for other jobs at different places.
[Later in] 2013 his friend [Mr B] came to him as he had heard that an investigation group from [a particular government department] were [coming]. [Mr B] then thought they must be coming as the applicant must have “done something” against [Mr C], his father and uncle as well as the local PSB. [Mr B] said the officials and police were very corrupt and [Mr C] and his family had all sorts of connections. [Mr B] said that considering his connection with [Mr A] he had “no chance to win the case. On the contrary he said, I was in a very dangerous position. He suggested me to leave the country as soon as possible”. He then considered [Mr B]’s advice, and then asked a friend to arrange for him to go overseas with his wife. He claims that though the visa was issued to him on [in] October 2013 he didn’t leave China immediately and “in case of having dangers, my wife and I did not remain at our home at that time”.
He claims the investigation [group] arrived [in] 2013 and as [Mr B] had thought it was the applicant who “was quickly regarded as a dangerous person like [Mr A] with serious anti-government ideologies”, he was “alleged to frame up innocent officials and police” so as to stir up “discontent with the Communist government”.
He claims that fortunately he wasn’t home when the police came to arrest him, and he and his wife had already left from China.
At interview with the delegate [in] June 2014 the delegate asked in part for any documents that the applicant had to establish his claimed involvement in the claimed business. In response the applicant provided a further declaration dated [in] June 2014. In it he claims that at the interview he had said that a friend had sent him the business licence of the [business] as well as a document in relation to his having been arrested. They had not arrived at the time of the interview and he now provided them. He claimed he couldn’t provide anything further as his friend had said that the local government had demolished the [business] and hence all “materials, including financial reports or commercial documents, in relation to my [business], had been destroyed”. He provided a translated copies of:
· a business licence issued [in] June 2005 for [Company 1] operating in [a particular location] by the applicant, and indicating the business was established [in] June 1995; and
· an Arrest Notification issued by the [PSB] on [in] 2013 and naming the applicant.
The applicant provided to the Department some photographs of a [business] (folio75). He also provided a copy of the delegate’s decision with his application for review.
At hearing before the Tribunal on 8 July 2015 the applicant repeated his claims and clarified aspects of his claims and evidence. The applicant wife confirmed she has no claims of her own.
The applicant said that he feared return to China as he has reported some police officers to the PSB and “went to Zhejiang Province to sue them … and after that I was being chased by them”. The applicant said his application was completed by his migration agent [Mr D]. The applicant was asked whether he knew if his claims were similar to his brother-in-law’s. He said “my case is related to his case. He is my brother-in-law”. He said that [Mr D] had also completed his brother-in-law’s application in 2008, and he came to know of [Mr D] from his brother-in-law when he arrived in Australia.
The applicant claims he had a [business] in China. His brother-in-law had a similar type [business]. His [business] name was [name removed].
The applicant was asked about the two documents he provided to the delegate post interview. He said he obtained these from his friend [Mr B] in China. He claimed that the business registration was renewed every 10 years. He said that at his request this friend went to his [business] and the only two documents that were found were these. The applicant said that his friend was only able to get these 2 documents as all of the others were gone. The applicant was asked how he could explain that these where the only two left of all of the various types of documents that a business may have. He said he thought this was as in China [details of business removed]. He said he had asked his friend [Mr B] to get the documents for him and this was what he had provided.

He claimed the [business] had been torn down and demolished in November 2013. He confirmed it was demolished a month or so after he and his wife left from China. He said it was “used to deduct the loan”. It was put to the applicant that it made no sense that the building would have been torn down as he had told the delegate he still owned the land and had the title deeds. He claimed that he no longer has them, and the bank has them now and he mustn’t have explained this clearly to the delegate “at that time my memory was not clear and I didn’t explain myself”.
The applicant was asked how he had found out that the PSB investigation team were coming to his town. He said this was because his friend [Mr B] [worked] for [a particular business], and “if anyone is coming … some high officials they would [use his business] …They arrived [in] October 2013 … as soon as they arrived I found out … [Mr B] told me the investigation group had [arrived]”. He said the first he knew they were coming was when they arrived and he was told by [Mr B]. He then said that he had been told an investigation group was coming and would arrive [after a particular date].
The applicant was asked why [Mr B] would have told him that a group of PSB were coming to town. He said this was as “[Mr B] is my good friend and [Mr C] took all of my money and he knew I would sue”. He was asked again why [Mr B] would tell him that a PSB group had arrived and why would he even think it had anything to do with him. He said that at first [Mr B] only found out a PSB group was coming and “he wasn’t sure they were coming about my problem and then he told me and I was sure”. It was put to him this made no sense and why would he even think this had anything to do with him. He said that after [Mr B] found out a PSB working group was coming to town he thought “that this had to do with my issue”. It was put to the applicant this was very difficult to believe as true. He said this was as “[Mr B] is my close friend and he knew how I had been harmed by [Mr C] and the [bank] and he knew I would sue”.
The applicant said that he and his wife departed from China [in] October 2013 but that they had decided to leave following his going to complain at the provincial PSB [in] 2013. It was put to him it made little sense that he would go and complain and at the same time decided to leave from China. He said that he thought to complain but knowing of [Mr C]’s strong family background he had to have another solution.
The applicant claimed that [Mr B] first told him of the planned trip to his town by the PSB on “[a particular date in] September 2013” and said that they planned to come following [a particular date in] October 2013. He claimed that on the same night he decided to apply for a visa for Australia and “[Mr B]’s friend took our stuff away (understood to be material for the visa application) [in] September 2013 but we didn’t get the visas granted [a date in] October 2013 … I don’t know when it was filled out”.
The Tribunal asked the applicant again about the two documents produced to the Department, and in particular how it could be that these were the only two found and sent by friend [Mr B]. He said that [Mr B] went to the [business] and found them there, and that he asked [Mr B] to get them [in] May 2014. He was asked how it was possible [Mr B] could have found anything as the [business] had been demolished in November 2013. He then said “sorry I asked him to get them in 2013”. It was put to him the Tribunal considered his story as implausible.
Following a break the application then offered an explanation. He said “I’ve got it now … when [Mr B] contacted me he told me this ... he called me and told me your [business] has been pulled down and the rest of the documents are all gone leaving only these two documents”. He confirmed them to be the business registration form and the arrest notification. He claimed that [Mr B] told him this in May 2014 and then posted the two documents to him.
The Tribunal asked how this was possible seeing as he had told the delegate he was getting the documents and had just asked for them. Further, how was it possible to get documents from a demolished [business]. He then claimed “[Mr B] told me it had been torn down but not when”. It was put to the applicant it seemed he was fabricating his story.
The applicant said that his son was in China. He was asked why, if the matter was of sufficient gravity for him and his wife to leave, that they would have left their son behind. He said that he had study to do and “we just can’t take him away this matter has nothing to do with him”.
The Tribunal asked the applicant about his brother-in-law’s issues in China and why he thought they had anything to do with him or any impact on him. He said “I’m not impacted by this”. It was put to him that the basis of his initial claim was that he was impacted by this. He then said that this was as the authorities considered he had helped his brother-in-law. He claimed his brother-in-law had been arrested in 2007 and he had to go to his province to the business and assist him “to deal with his accounts [in] 2007 “. He went as his wife asked for his help and he was detained for [a number of months].
His brother-in-law is now in Australia and works as [occupation]. The applicant said of himself that he doesn’t have a regular job and only some casual work. He and his wife live in a [house] with the landlord and landlord’s family.
The applicant confirmed that apart from this issue that he has no other issues or concerns about return to China. He thought that if he returned to China “the PSB and local town officials will tear me apart”.
The Tribunal put to the applicant that he had told the delegate that [Mr B] had discovered that the PSB were coming and were interested in the applicant as he had overheard the investigators conversation at [Mr B’s workplace], and they were talking about him. He said that this wasn’t true and he had never said they had a conversation about him, and the delegate must have misunderstood him. It was put to him this wasn’t accepted as true, and the Tribunal read out the relevant parts of the delegate’s decision record. It was put to him that given the discrepancies in story it was difficult to believe that it was true. He said that “this is what was said”.
The applicant was asked about [Mr C]. He said he was a [associate] and related his claimed family connections in the [government]. He claimed he had no choice but to let [Mr C] have an interest and involvement in the business. This was due to his brother-in-law’s issues from 2007. He claimed [Mr C] provided all sorts of reasons as to why he was taking money from the [business]. He claimed it was only later that he found out he was operating an [illicit business] and [details of illicit activities]. He only found this out following his release from detention [in] 2013. He was asked why he had made no mention before of [a particular illicit activity of Mr C]. He said this was as he only found out after his release that they were operating the [illicit business].
The applicant was asked why the bank would have pulled down his [business]. He claimed that the property was taken by the bank to “deduct the loan … they auctioned the [property] and then tore it down”. He was asked if there was a court case concerning the debt and [business]. He claimed that [Mr C] had obtained the loan from the [a bank] and “so the bank was going to sue me … he got the loan for [an amount] … so the bank came after me”. He was asked why the bank would sue him if the loan was taken by [Mr C]. He claimed it was “taken under the name of the [business] and so I had to pay the money”. He claims he only found out about any of this when the police came to arrest him [in] 2013 telling him he had a [debt] to the bank. The applicant was asked how it was possible he didn’t know about the court proceedings (naming him and the [business]). He claimed this was as [Mr C] had taken the loan and “I didn’t know about any of this”. He claims he doesn’t know how [Mr C] managed to get the loan all he knows is he didn’t repay it.
The applicant said he owns no other property in China apart from the [business]. His son lives with his parents in a house owned by the applicant’s father. The [business] that he claimed he owned and was demolished, he said was [dimensions of business]. He claims he had more than [number] employees. He mainly [details of business].
The applicant was again asked why, given the scale of the business, it was that he was only able to produce these two documents and he couldn’t obtain any others. He said he thought he could have originally but these are the only ones and “Chinese people are scared of being detained let alone keeping all those documents”.
The applicant was asked why he waited for nearly 3 months following arrival in Australia before lodging a protection visa application. He claimed that this was as his brother-in-law had been [away], was “working somewhere else” and he had said to him “don’t do anything before I’m back just stay at my house. He only came back after 2 months and then he took me to his representative on [a date in] January 2014 and the representative was very busy and our appointment was postponed”.
The applicant was asked how it was possible, if he was wanted by the authorities, that he was able to depart from China. He claimed “at that time I wasn’t wanted … I was only arrested due to the loan issue and they only issued an arrest warrant after I arrived in Australia”. He claimed he found out about the arrest warrant as his parents contacted him and said “the PSB are here again”.
The applicant asked how much money the bank raised by auctioning the [business]. He said he didn’t know. He only knew that the employees were owed money, and also that he purchased the [property] in 2005 for [an amount]. He claimed he “wasn’t told” how much money was raised and doesn’t know what happened to the [assets of the business] as “the bank took everything”. It was put to him it was difficult to believe that if he was sued by the bank for money owed, that he then wouldn’t know or be told what had been raised by any auction. He claimed the loan wasn’t taken out by him, “I just had to sign the documents”, and this is all he knows.
The applicant wife gave evidence. She said that her husband had been very seriously harmed in China and “he was taken away and arrested” [in] 2013 when the [business] was closed down. She said the bank then sold the [business] to repay the [loan], and it was sold “after 2013”. The [business] she said was [description of business]. She said she didn’t get involved in the business. She claimed that when they left from China she didn’t know anything about why they were leaving, and it was only after they arrived in Australia that her husband told her that they had to flee. He told her this was as “some officials came to investigate him”. She was asked why, if there was a problem, they would have left their son behind. She said this was as they weren’t able to bring him and the warrant was only against her husband. She said she didn’t know this at the time, and only found out afterwards. She said she only knows of most of the claimed matters from what her husband told her, and only then from what he told her after they arrived in Australia. She said in China she was “only aware of little things … I knew he was in danger … but the specifics he never told me”.
The applicant’s brother-in-law, [Mr A] gave evidence. He said that the applicant feared harm in China as he ([Mr A]) had problems in China and the applicant came to help him to sort out issues with the [business] “as I was locked up and he had to come and get it sorted and deal with the managers”. He said that he ([Mr A]) was a refugee in Australia and “I couldn’t see my family and my brother-in-law came when I [was away], and then I took him to my agent [Mr D] … I hope the Australian government can give him a fine life … if he goes back he could be persecuted and have a lot of problem with the government … I hope my case doesn’t affect his application”.
It was put to the witness the Tribunal had difficulty in understanding how anything that had happened to him in 2007 or 2008 could impact on the applicant several years later and in another province. He said that “provinces aren’t an issue … local authorities would have records and if they wanted to they could dig them up”. He said “I hope you can give them a new life including their child”.
The Tribunal asked the witness if he recalled what documents he produced to the Department in support of his own protection visa application. He said he could and had produced an arrest notification and a document about the [business] and it being demolished, things like that … I couldn’t remember”. He was shown the documents from the applicant’s file.
It was put to the applicant and his witness that it seemed extraordinary that in both cases only two documents are produced and they are of the same type in each application. It was commented “well you shouldn’t put it like that all the documents are real … because we have to provide a lot of documents we have to prove we had a [business] and had to prove the arrest”. It was put by the Tribunal that it was known these types of documents are easily forged in China.
The applicant had nothing further to add. His wife and witness also had nothing further to say. The applicant wife requested 7 days to provide anything further and in particular as she would like to listen to recording of the hearing. This was granted, and nothing further was provided.
The applicants have provided no independent country information in support of their claims
CONSIDERATION OF CLAIMS AND EVIDENCE
I have carefully considered the claims and evidence of the applicants and the evidence of their witness. I have serious concerns as to their credibility, particularly that of the applicant and his witness. I found the evidence of the applicant not reasonable to believe as true. In particular:
·     I do not accept as reasonable to believe that if property was seized by the bank the applicant would have no documents in relation to this, and no knowledge of the outcome of the auction of court proceddings. That he has no such information, documents or knowledge indicates that these events did not occur and this has been fabricated by the applicant.
·     I do not accept as reasonable to believe that of all the various type of business records and documents that a business and its owner may have such as: tax records, accounting documents, invoices, accounts, ledgers, annual reports, business registration, title deeds, to name but a few, that they only two documents that could possibly be provided by the applicant in support of his claim are the two that he did provide. I consider that no others have been provided as they do not exist and he did not have a business as claimed.
·     I do not accept as reasonable to believe that if the applicant was wanted by the authorities that he would then be able to depart from China without difficulty. That he was able to do so indicates he was not wanted by them.
·     I do not accept as reasonable to believe that fortuitously, and in anticipation of his being wanted by the authorities, that he would arrange a visa for him and his wife before he actually knew he was wanted by anyone.
·     I do not believe the story relating to his friend [Mr B], that he just happened to work in the [a business] where the PSB would usually [frequent], and he on knowing that some PSB were coming to town would therefore have thought that this had anything to do with the applicant or his history, and would warn him of this. It is not reasonable to believe as true.
·     Similarly I do not believe the story about the applicant, on hearing from friend [Mr B] that the PSB were coming to town, would then have thought they must be coming for him in some adverse manner. It is illogical and not reasonable to believe as true.
·     I note the discrepancies in what the applicant told the delegate concerning [Mr B] overhearing the PSB talking at the [business] about him and then warning him of this. I do not believe this occurred and find it to be fabrication.
·     I do not accept as reasonable to believe that anything to do with his brother-in-law from 2007 or 2008 would then impact on him to any degree. I do not believe that anyone would then seek to blame or involve him in any matter. I find he has fabricated this connection so as to give a reason for his original seemingly adverse interest from the authorities.
·     I consider the 3 month delay in applying for the protection visas is significant. I do not accept as reasonable in the circumstances of my other concerns, the reasons for delay.
·     I do not accept as reasonable to believe in the circumstances that applicant wife would not be aware of the issues relating to them leaving from China. I consider that she wasn’t aware as they were later made up by her husband.
·     I do not accept the documents as genuine and find they are fabricated. I do not accept as reasonable to believe that, of all the many type of business records and documents that may exist, these were the only two that were found in a demolished building several months after the demolition. I note the change in evidence of the applicant concerning these documents and his attempt to explain how only these could have been obtained. I do not accept these explanations as reasonable to believe.
·     I do not accept as reasonable to believe that if the applicants actually feared harm as claimed in China that they would then leave their son behind, and say that this was as the matter didn’t concern him and he had to remain to complete his studies. That he was left in China indicates that the decision to apply for a protection visa was opportunistic and made after the applicants came to Australia.
Overall, I consider the applicant’s claimed story is not reasonable to believe as true. It is vague and inconsistent and not supported by anything other than two documents and some photos. I do not accept either document is genuine, and find that they have been fabricated so as to support the applicant’s story. I find the applicant is not a credible witness and do not accept any of his claims as true. I also find the brother-in-law’s evidence to be unreliable and in so far as he supports the applicant’s claims I find he is not a credible witness. I find the applicant wife’s evidence to be unsupportive of any claims. I consider she is only relating what she had been told by her husband. I do not accept she has any independent knowledge of any matter. I do not accept any of the claims relating to the applicant or his business as being of adverse interest of the PSB or authorities or anyone else in China. I do not accept that there was any involvement of a bank or a man named [Mr C].
The applicant has no other claims.
Overall, I am not satisfied that the applicants’ fear of harm is well-founded.
For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a).
I have also considered the alternative criterion in s.36(2)(aa) and whether either of the applicants is a person in respect of whom Australia has protection obligations under s.36(2)(aa). This requires a consideration of whether 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: s.36(2)(aa) (‘the complementary protection criterion’).
As detailed above, ‘significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). 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 to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

As detailed above I find the applicant is not a credible witness I do not accept his claims relating to being of adverse interest to anyone. The applicant wife has no claims of her own.
The Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants Protection visas.
Chris Keher
Member

[2015] AATA 3972

29 July 2015

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Immigration

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