1418390 (Refugee)

[2016] AATA 3109

1418390 (Refugee) [2016] AATA 3109 (13 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1418390

COUNTRY OF REFERENCE:                  China

MEMBER:Frances Simmons

DATE:13 January 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 13 January 2016 at 5:04pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act). The applicants are represented by a registered migration agent.

2. The applicants are citizens of China. They were granted student visas [in] December 2012 in Beijing. They arrived in Australia at Sydney airport [in] December 2012 holding passports issued in their own name.

3. The applicants applied for protection visas [in] February 2014. The primary applicant, [name], was born in Shandong on [date]. His wife, [name], applied for a protection visa as a member of his family unit. She has not made her own claims to protection.

4. [The applicant] claims he left China to escape persecution by the authorities. In his written claims he states he has been detained on two occasions and tortured by the police and that, if he returns to China, he fears this will happen again. His written claims continue:

   The authorities wanted our house for the property development. The authorities colluded with the property developers and promised us with fair compensation to the requisition. The corrupted officials and developers for the better profit denied the initial promise and did not compensate us with equivalent unit flat. I had complaint several times the unfair dealings to the authorities who regarded my actions as illegal and detained me. In the detention, I had been tortured and threatened to kill me if I was inoperative [sic] with the police. Upon paying the bond and bribing the police, I was released from the detention. Thereafter, I had been continuing to lodge the complaint about the unfair compensation to the high-up authorities who remitted the matter to the local authorities to handling the matter itself. The local authorities were extremely [un]happy to the actions which I have taken action against them. As we did not have farmland after requisition, we bought [farm equipment] and operated a [business]. The authorities declared it as illegal and put me in the detention again. The authorities had confiscated the [farm equipment] and accessories which I have borrowed the money from the private lenders. As a result, I am not able to make repayment to the money lenders who will harm me if I return to China.

   If I return to China, I will seek the fair compensation again. As such the authorities will persecute me as they have done in the past. [Errors in original.] [1]

   [1] Departmental file, folio 33. The Tribunal assumes that the applicant intended to refer to the authorities being unhappy, not happy.

5. [The applicant] claims the Chinese authorities will not protect him because he has protested and will protest against the authorities. He claims the authorities collude with property developers for bribes and profits and he will not be protected by the authorities. He states he was able to leave China because he paid a large sum of money to corrupt officials.[2]

   [2] Departmental file, folio 31.

6. [In] October 2014 the delegate refused to grant [the applicant] a protection visa because he did not accept that he was telling the truth about his experiences in China.

7. [The applicant] appeared before the Tribunal on 5 January 2016 to give evidence and present arguments. At the hearing I explained the refugee and complementary protection criteria to [the applicant]. His evidence is discussed below. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. 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).

10. 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.

11. 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’).

12. 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.[3]

    The delegate’s decision

    [3] The Tribunal has considered the DFAT Country Report – People’s Republic of China dated 3 March 2015, as well as the DFAT Thematic Report – Unregistered religious organisations and other groups in the People’s Republic of China dated 3 March 2015.

13. The delegate’s decision record provides a summary of the interview [the applicant] attended with the delegate. I have listened to the audio recording of this interview. I am satisfied that the delegate’s decision record, which was submitted to the Tribunal with the application for review, contains an accurate summary of the information [the applicant] provided to the delegate. Relevantly, during the interview [the applicant] provided the following information and responses.

    ·     The applicant did not commence his studies in Australia. He does not have plans to return to China because of the torture he suffered there.

    ·     The local developer demolished his house at [village] so they could build buildings as it is close to the beach. It was his house in the village and he lived in it before he was married. Before that time he lived with his mother.

    ·     In January 2010 they came to him and said they wanted to build on his land and they would give him an apartment however as it was close to the sea prices went up a lot. He wasn’t given what he was promised.

    ·     The developers and the local government are connected and the local government is very corrupt. The developer also has connections with the underground so they are scared to argue with them.

    ·     In February 2011 when the development was completed he went to the developers and the officials to ask about the apartment. They had a conflict. He returned to ask them about the incident but because of their connections with the developers they ignored his request. He went there repeatedly and so they asked the police to arrest him as he was harassing them.

    ·     He was arrested in mid February 2011 after the building was completed. He was held for less than 10 days and was released after his parents paid around 2000 yuan. He could not remember the date. He was not tortured or asked to work but he was held in a room for around ten days.

    ·     After the applicant was released in around June 2012 he bought [farm equipment] to work in the nearby village. He was told that this was illegal. He borrowed about 100 000 yuan to buy the [farm equipment]. They confiscated his machine and detained him for a second time in June 2012. The developers and the government had connections with the underground world and they made trouble for him.

    ·     The applicant was released after about seven or eight days after his parents paid 200 yuan for each day he was detained. Nothing happened to him while he was detained he just did not have his freedom.

    ·     The delegate put to the applicant that his written statement claimed that he was tortured and threatened with death when he was first detained. He responded that they threatened him that if he continued arguing with them there would be very serious consequences. He was not tortured, he just did not have freedom.

    ·     After he was released on the second occasion he appealed to the higher government but they referred it back to the local government. He commenced appealing to the higher government after his release on the first occasion.

    ·     He was being chased for the money after the [farm equipment] had been confiscated in June 2012. He was threatened because he owed money.

    ·     He decided to come to Australia after June 2012. It was put to him that he and his wife had been granted their passports [in] 2012. He said yes. He gave evidence that after their house was demolished and the situation was not very good for them; they were thinking about coming to Australia after the machine had been confiscated. Asked why he had applied for passports in [month] 2012, he responded many people in his village have passports but they decided to come to Australia after what had happened to him.

    ·     He did not have any written documents and he did not think to get any, they did not give him any, he did not expect this.  

    ·     The local agent organised for him to come to Australia for 100, 000 yuan for which the agent prepared the documents and applied for the visa.

    ·     He worked as a farmer in China. He farmed [crops] on his father’s land of about three or four mu.

    ·     The delegate put to the applicant that according to his statement he worked as the [Occupation 1] to the general manager of the [name] company to which he responded that he hadn’t worked there but not for a long time and he couldn’t remember. The delegate put to the applicant that according to his wife’s statement she had also worked at that company for about three years to which he responded that was a mistake and she had not worked there.

    ·     The applicant was questioned as to the ownership of the [named] motor vehicle appearing on his student visa application form. He responded that his wife had a similar car but he could not be sure whether that was it as it had no registration number plates, but it could be assumed it was.

    ·     The delegate showed the applicant a title deed contained in his student visa application file (folios 66-71) in respect of a property at [address] in the names of [the applicants]. He stated his wife had bought this property herself and he did not know about it.

    ·     The delegate put to the applicant that the property was in both their names and he responded she probably put to in both their names and the local agent prepared the documents and did not ask him. He could not recall the date she purchased the property – it was several years ago – but he knew that it was over 100, 000 yuan. He told the delegate his wife still owned the property and her parents were managing it for him.

    ·     The delegate put to the applicant that if he still owed money to money lenders then his wife could sell the property and pay them back to which he responded he could not answer that because his wife bought the property and that it was in his wife’s name. Because his wife purchased it, he could not just dissolve that because they did not discuss that when she bought it.

    ·     It was put to the applicant that his student file contains bank statements that indicate that in 2012 in 350 000 yuan in one account (folio 72), as well as 200 000 yuan in what appeared to be a fixed term deposit (folio 74) and his wife had 190, 000 yuan (folio 73). He responded the local agent prepared that he didn’t know how much money his wife had. It was put to him he knew how much money he had and he responded he did not have money and the agent prepared the document.

    ·     The delegate asked the applicant whether it was correct that he graduated from [university] in July [year] (folio 89). He said he came to Australia to avoid persecution so the agent prepared the document. He did have a university degree – he studied [course] at [another university].

    ·     It was put to the applicant that according to another title deed (folio 60-63) he owned another property.  He told the delegate his wife brought that property and put it his name and although both properties are in his name neither of them are his. He does not know when his wife purchased the other property in his name and it was because of all the things that happened to him that he came to Australia to escape persecution.

    ·     The two properties mentioned in the student file were apartments and the one taken away by the government was a house. Both properties were worth a lot but they belong to his wife. They are valued at about 500 000 to 600 000 yuan.

    ·     He did not apply for protection when he first arrived in Australia because they wanted to know more about the country before they applied for the visa. Now they have travelled they have seen Australia is a good country.

    ·     The applicant is working in Australia as a [occupation] to pay living expenses and the rent and his wife has a job in a factory and [organisation]. She pays tax.

    ·     If he returns to China he will continue to go to the government and they will know they did not give the apartment as they promised and they will keep on making trouble for him; they will torture him.

    ·     He said he still owes people about 100, 000 yuan but that is not a big problem.

14. The delegate found [the applicant] had fabricated his claims for protection. The delegate was concerned [the applicant]’s oral evidence lacked detail (e.g. he could not provide the date or his arrest and release in either February or June 2012 or provide the dates that he petitioned the local government or the higher government or how many times he had done so). The delegate was also concerned by the anomaly between [the applicant]’s written claims, in which he stated he was tortured in detention, and his oral evidence to the delegate, which was that he was not tortured or required to perform hard labour. The delegate noted [the applicant] did not provide any documentary evidence to corroborate his claims. The delegate considered that if [the applicant]’s claims were true, there would be documentary evidence – such as a signed contract between the applicant and the developers – which would corroborate his claims.

15. The delegate considered the applicants were planning to come to Australia on student visas well before June 2012. The delegate found it difficult reconcile [the applicant]’s evidence that he decided to come to Australia after June 2012 after the [farm equipment] was confiscated with the fact the applicants were issued with  passports [in] 2012. The delegate also noted that the personal certificate of deposit lodged by [the applicant] with his student visa application was dated [in] March 2012.

16. The delegate noted that applicant’s student visa application contained two certificates of title to apartments in China: one in the name of [the applicant], the other in the names of [the applicant] and his wife.  He also noted that bank certificates provided by the applicants with their student visa application indicated they had a total of 740 000 yuan in three bank accounts and that [the applicants wife] is the registered owner of a recent model [named motor vehicle] Sedan. The delegate did not accept the applicant’s evidence that he did not have any money. The delegate considered the documentary evidence in the student visa application appeared to be genuine and the applicant would have been well-placed to repay the 100, 000 yuan to the money lender. The delegate noted the applicant also said that the issue of the borrowed money was not a major problem.

    Evidence to the Tribunal

17. In the course of the hearing, [the applicant] claimed if he returned to China he would approach the local authorities to seek compensation and this would expose him to harm. He said he would definitely approach the authorities to seek compensation but they were consorting with the underground society and he was considered part of the weak and vulnerable class. He claimed he would seek compensation because they demolished his seaside property in January 2010.

18. Asked what efforts he had made to claim compensation in China, he said he approached the local authorities and the local developers but they were both corrupt and they used the police to pressure him. [The applicant] claimed that he was first detained because he complained to the authorities about the failure of developers to act in accordance their agreement to provide him with a new property after his property was demolished. He gave evidence he was detained for more than ten days and released after his family bribed the police. When asked whether he was mistreated in detention he said he was confined, he was not mistreated. He claimed he was released after his parents paid a bribe to the authorities.

19. [The applicant] claimed he was detained for approximately two weeks on a second occasion in May or June 2012 when the authorities accused him of using an illegal [farm equipment]. He was released because his family paid a bribe of several thousand RMB. Later in the hearing he confirmed he was detained for about half a month on this occasion and his family paid 3-4 thousand RMB to have him released. He believes he was detained on the second occasion ‘as revenge because he had approached them so many times’.

20. During the course of the hearing I asked [the applicant] whether he had any outstanding debts in China. He gave evidence he borrowed money (130 000 or 140000 RMB) from an underground organisation for the purchase of the [farm equipment] and the money he borrowed from a relative to travel to Australia (250 000RMB). [The applicant] was asked if he would face any harm in China because of his debts. He responded yes, because he borrowed 100, 000 for the [farm equipment] from an underground organisation and they are connected with underground society and local authorities and engage in usury.

21. [The applicant]’s claims were discussed during the hearing and he was invited to comment on concerns that the Tribunal had about his evidence. Information was put to [the applicant] in accordance with the procedure in s.424AA of the Act and he elected to respond to this information at the hearing. Where relevant his evidence at the hearing is discussed below.

    ASSESSMENT OF CLAIMS AND EVIDENCE

1. On the evidence before me, I find that the applicants are nationals of the People’s Republic of China. Accordingly, I have assessed the applicants’ claims against the PRC for the purposes of the Convention in s.36(2)(a) of the Act and as the “receiving country” for the purposes of s.36(2)(aa) of the Act.

   Issue on review

2. The issue in this case is whether the applicant’s claims are credible.

3. In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters.  In assessing the credibility of the applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.[4]  However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[5]

   [4] MIMA v Rajalingam (1999) 93 FCR 220

   [5] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547

4. The Administrative Appeals Tribunal has issued guidelines on the assessment of credibility in protection visa cases, which state, in part:

   … The rejection of some of the evidence on account of a lack of credibility may not lead to a rejection of an applicant’s claim for a protection visa. For example, when assessing an applicant’s claims as to whether they meet the definition of refugee, if an applicant is disbelieved as to his or her claims, the tribunal must still consider whether, on any other basis asserted, a well-founded fear of persecution exists. However, the tribunal does not need rebutting evidence before it can lawfully find that a particular factual assertion made by an applicant is not made out.

   The tribunal considers all the material before it and is not restricted to claims and evidence considered by the primary decision-maker. If the review applicant raises new claims or presents material for the first time to the tribunal, the tribunal will consider the credibility of what has been provided, including any reasons for why it was not provided earlier in the application process. There may be good reasons why new information or claims are presented by applicants at a later stage in the application process. These reasons may include stress, anxiety, inadequate immigration advice and uncertainty about the relevance of certain information to an applicant’s claims [footnotes omitted].

5. I have concluded that [the applicant] is not a credible witness and that his claims for protection are fabricated. In assessing his claims, I am cognisant of the fact that disputes about land expropriation and the conduct of developers are common in China.[6] While theoretically avenues for complaint for Chinese citizens who want to challenge government land repossession or inadequate compensation are available under China’s Constitution, Chinese legislation and through the Letters and Visits system, in practice public confidence in the judicial system is low and the mistreatment of petitioners by the Chinese government is well-documented and commonplace. [7] However, in this particular case, for all the reasons that are set out below, I have form the view  that [the applicant] is not telling the truth about what happened to him in China or what would happen to him if he were now to return.  

   [6] DFAT Country Assessment China [3.2.1] noting ‘[a]ccording to the State Bureau of Letters and Calls (the national department responsible for local petitioning offices), an estimated four million disputes resulting from expropriated land and property demolitions occur every year. DFAT is aware of reports describing aggressive, and sometimes violent, action by private security contractors hired by property developers to manage protesters’.

   [7] US Department of State 2012, 2011 Country Reports on Human Rights Practices – China, 24 May, Executive Summary, Sections 1.c, 1.d, 2.b ; see also DFAT Country Assessment China, 3 March 2015, [3.22].

6. The reasons that I have found [the applicant]’s claims are not credible are numerous. In summary, his evidence at the Tribunal hearing was internally inconsistent – most notably he initially told the Tribunal that before he left China in 2012 he lived at the same property that he later told the Tribunal was demolished in 2010. His evidence to the Tribunal about his detention in China was, in significant respects, inconsistent with his earlier evidence about this issue. He has also provided vastly different information about his life in China in different visa applications. After telling the Tribunal that the information in his student visa application was true, he then told the Tribunal that all the information his student visa application was false. His evidence to the Tribunal was vague and it was not otherwise credible by reason of corroborative documentation. He has provided different explanations for why he did not apply for a protection visa for over a year after he arrived in Australia but none are persuasive. These reasons are set out in detail below.

   [The applicant]’s inconsistent evidence about his last place of residence in China undermines his claims that his property was demolished

7. [The applicant] gave inconsistent evidence about his last place of residence in China which undermined his claims that his property was demolished. At the beginning of the hearing [the applicant] was asked about the last address he lived at in China.  He told the Tribunal he was living at a one storey flat close to the coast in [name] village in Rushan WeiHei City in Shandong. He confirmed that this was the property he was living in just before he left China and travelled to Australia. He told the Tribunal he lived there with his wife (no one else) for three or four years. This was the address of his household registration (ho kou). He identified the flat number as [number]. He advised the Tribunal he owned this property (hereafter the [number] property) and that he didn’t own any other property in China. Asked whether his wife had any other property, he gave evidence that ‘both of us just have one’, before adding that ‘maybe she has some other properties somewhere else’ but he had ‘no idea’ about this because she didn’t tell him about. He confirmed he lived at the [number] property for three or four years before he came to Australia.

8. After initially telling the Tribunal that he lived at [number] property before he travelled to Australia, when asked who was living at this property now [the applicant] responded that the property had been demolished. Asked when the property was demolished, he said in 2011 before correcting himself and saying in 2010. I put to [the applicant] that when I asked him where he was living before he left China he gave evidence he had been living at the [number] property for three or four years before he travelled to Australia but then he said the property had been demolished. I asked [the applicant] to clarify his evidence about when the property was demolished. [The applicant] said after the property was demolished he lived at his parents place. He advised the Tribunal the flat was demolished in ‘roughly 2010’. Asked to be more precise, he said in January 2010. He gave evidence he and his wife lived with his parents for one or two years after the [number] property was demolished.

9. In accordance with the procedure in s 424AA, I put to [the applicant] that his student visa application, which was signed [in] November 2012, recorded his residential address as [number] property.[8] I explained to [the applicant] that this information was relevant because he told the Tribunal that a property with this address was demolished in 2010 and, at an earlier stage in the hearing, he said that just before he left China he was living at a property with this address. [The applicant] was advised that the inconsistencies in the information he had provided could cause the Tribunal to doubt his claims that this property was demolished and the credibility of his claims to be in need of protection. [The applicant] told the Tribunal he could not change his address and so he used this address in his student visa application. I have considered this explanation as well as [the applicant]’s statements that the information contained in his student visa application was false and he did not know what his migration agent put in this application.  

   [8] CLF[number],folio 17.

10. I do not accept that [the applicant]’s property was demolished in 2010 as claimed. In my view, it is significant that [the applicant] initially told the Tribunal that he was living at the [number] property for three or four years before he left China. I have considered his evidence that he left China a long time ago but this does not explain why he initially told the Tribunal that he lived at the [number] property for three or four years before he left China. I consider [the applicant]’s inconsistent and shifting evidence about where he lived before he left China casts doubt on his credibility of a core element of his claims - that the [number] property was demolished in around January 2010. I also consider that the fact that the [number] property is recorded in his student visa application as his residential address further undermines his claims that this property was demolished in 2010 and thereafter he and his wife lived with his parents.

    [The applicant] has provided inconsistent evidence about his claimed detention in China

11. [The applicant] has provided inconsistent evidence about his detention in China and this casts further doubt upon the credibility of his claims. He told the delegate that on the second occasion he was detained he was released after seven or eight days and his parents paid 200 yuan for each day he was detained. In contrast, he told the Tribunal on the second occasion he was detained he was held for two weeks – or half a month – before his parents paid thousands of RMB to have him released. When [the applicant] was asked to comment on this inconsistency he said maybe at that time he forgot that it was not like that – he said they paid several thousand yuan at one time for his release. Asked to clarify how long he was detained for, [the applicant] said it was a half a month and previously his parents did not tell him this clearly over the phone because if he knew how much money they paid to the authorities to secure his release he would approach the authorities seek justice.

12. I do not accept that [the applicant] has adequately explained why his account of being detained in 2012 has changed over time. Other aspects of [the applicant]’s evidence about his detention in China were vague and lacked consistency over time. For example, when asked when he was first detained he initially said in ‘roughly in January or February 2010 – it was a long time ago’, before stating he was detained in 2011.  Another example is the variation between his oral and written evidence: in his written claims [the applicant] claims he was detained twice and that in detention he had been tortured and the Chinese authorities threatened to kill him.  However, [the applicant] told the delegate he was not tortured in detention.

13. At the Tribunal hearing [the applicant] did not claim to have been physically mistreated or subject to other forms of abuse in detention. Later in the hearing he referred to being ‘tortured’ by the authorities and, when questioned about what he meant when he said he was tortured, he told the Tribunal when he was detained he not physically mistreated but he lost his freedom and this could be considered as torture. I have considered [the applicant]’s evidence but it does not overcome my concerns about the discrepancy between his written claims, in which he claimed he was detained and tortured, and his testimony to the delegate and the tribunal which was that he was only detained.

    [The applicant] provided different information in relation to his visa applications at different points in time and has been prepared to provide false information to obtain an immigration outcome

14. The information contained in [the applicant]’s student visa application paints a very different picture of his life in China than the information he has provided in the course of seeking asylum in Australia. At the start of the Tribunal hearing [the applicant] was asked whether the information he provided in his protection visa application and his student visa application was true and he responded that it was. However, later in the Tribunal hearing, [the applicant] said he relied upon his migration agent to prepare the information in his student visa application and the information was false. In response to questioning he told the Tribunal he had never been to university, he did not work as an [Occupation 1] at the [name] Company, he did not have money in three different bank accounts, and his wife did not own a [named motor vehicle]. He claimed he and his wife had no savings at the time he left China.

15. I am particularly concerned that [the applicant] indicated to the delegate that certain items of information in his student visa application were true, but he told the Tribunal they were false. When the Tribunal asked [the applicant] whether he went to university, he gave evidence that he did not but the documents prepared by the migration agent indicated that he did. I put to [the applicant] that he told the delegate he studied [course] at [another university]. [The applicant] was responded that the migration agent told him if he was asked if he studied he needed to say yes.  He told the Tribunal he had no idea what his migration agent had done; as far as he knew all the information in his student visa application was untrue. Asked why he didn’t tell the Tribunal that the information in his student visa was untrue at the start of the hearing, he said he forgot – he was just reminded. He also gave evidence that his migration agent had told him to say the information in his student visa application was true so he followed instructions.

16. [The applicant] has provided different information about his financial circumstances in China at different points in time. The delegate’s decision notes the information about [the applicant]’s financial circumstances provided in his student visa application (three bank accounts with a total of 740 000 RMB)  and  assets (his name is on the title deeds of two properties) suggests he would not have difficulty repaying a debt of around 100 000 yuan.  Before the Tribunal [the applicant] gave evidence he did not have savings in three bank accounts and the information in his student visa application was false. He also denied that he and his wife owned a [named motor vehicle] – he said all the information in his student visa application was false. Asked if the migration agent who did his student visa application was connected in any way to the migration agent who did his protection visa application, he said he had no idea – he was not clear about it.

17. Asked by the Tribunal whether he or his wife had any properties in their name in China, [the applicant] said gave evidence they did not. He reiterated that his student visa application was prepared by the migration agent and it was all false. However, it is noted that when the delegate asked put to him that his student visa application indicated his name was on the title deeds to two properties in China, [the applicant] did not claim these documents were false. Instead, he said that his wife bought property held in both their names and he did not know about it and his agent prepared the student visa application and he did not know how money his wife had. [The applicant]’s evidence that he has no properties in China is also inconsistent with his initial evidence to the Tribunal, which was that he owned the [number] property that he was living in before he left China.

18. Other information in [the applicant]’s student visa application is also different from the information he has provided in his protection visa application. As I put to [the applicant] in accordance with the procedure in 424AA, his student visa application states that he started working at [name] Co Ltd from January 2009 in the sales department and currently holds the position of [Occupation 1], a position that will be held for him until he returns from overseas.[9] As I put to [the applicant], this information is inconsistent with the information he provided in his protection visa application, namely that he is a farmer, and casts doubts upon his claims that he worked as a [farmer].  In response, [the applicant] said he told the delegate the truth – he worked as a farmer – but everything in student visa application was false.

    [9] CLF[number],folio 75.

19. I have considered the possibility that the evidence provided in support of the applicants’ student visa application is false. I cannot discount this possibility. However, even if it is accepted that the information in the student visa application is false, this does not lead to conclusion that [the applicant] has told the truth in his application for protection.  As I put to [the applicant] because he has provided different information about his situation in China at different points in time and he knew some of the information that had been provided in the past was false, it was difficult to know what information the Tribunal could rely upon.

20. I find it particularly troubling that [the applicant] did not tell the delegate that the information in his student visa application – for example, information about his university attendance and property ownership in China - was false. When I put to [the applicant] that he did not tell the delegate that information in his student visa was all false when the delegate asked him about it, [the applicant] said his migration agent who helped him apply for a visa to come to Australia told him to say everything was true and he was afraid if he didn’t do this it would affect his situation in China. In my view, [the applicant]’s evidence indicates he is prepared to provide information he knows is untrue in the hope of obtaining a favourable immigration outcome.

    [The applicant]’s claims are not otherwise credible by reason of corroborative documentation

21. [The applicant]’s evidence about his experiences in China was not otherwise credible by reason of persuasive detail or corroborative documentation. Overall, I found [the applicant]’s evidence about his experiences in China lacked detail. For example, when [the applicant] was asked by the Tribunal about what work he did in China before he travelled to Australia, he said he was [Occupation 2] in the villages. When it was put to [the applicant] that his protection visa application said he works as a farmer, he indicated he used to be farmer and he [was Occupation 2]. He gave evidence he did not have any farmland, but his parents did. He estimated it was 2-3 acres in size. It was noted he had provide a different measurement to the delegate (he told the delegate the land was 3-4 mu). He responded that it was in the range of 2-4 acres – he couldn’t remember clearly. While it may be that [the applicant] has worked in some kind of agricultural role in China, I found his oral evidence to the Tribunal to be vague and, having regard to the inconsistencies in his evidence to the Tribunal, I consider his evidence to the Tribunal what work he was doing at the time he left China to be unreliable. 

22. Other aspects of [the applicant]’s evidence were also lacked persuasive detail. For example, when asked how he complained to the authorities, he said he approached the higher level of the government and then it was allocated to the lower level. Asked for further details (where did he go, who did he talk to), he said he approached Wei Hei city government.  Asked how he complained he said he talked about his situation and the department contacted the authority of Rushan city and sent back his case. He went to Rushan city and they refused to do anything. When asked whether he put his complaints in writing, he said he did not – he went to the authority personally.

1. [The applicant] told the Tribunal he did not have any documentation in relation to the agreement to demolish the property. He gave evidence he initially agreed to the demolition as they said they would offer him another brand new property of the same size close to coast. However, when prices went up they changed their mind and he was never given the property he was promised. He told the Tribunal he did not have any documentation in relation to the agreement. He gave evidence that the developers gave them a form and he could tell the conditions were favourable and that he could not find a copy of this form. He told the Tribunal he trusted them to the right thing and so he did not pay too much attention to the forms he was signing and did not keep any of the documentation.

2. I found [the applicant]’s evidence that he did not keep any documentation in relation to an agreement whereby his property would be demolished and he would be provided with another property because he trusted the authorities and developers to keep his word to be unpersuasive. For all the reasons I have set out, I am drawn to the conclusion that the reason that there are no documents to corroborate [the applicant]’s property was demolished and that he complained to the authorities that he was not provided with the property he was promised is because the events that [the applicant] has described in his protection visa application never happened and there are no such documents.

   Claims to fear harm in relation to debt are undermined by [the applicant]’s own evidence

3. [The applicant]’s claims that he will face harm in China because he has outstanding debts were also unconvincing. [The applicant] has claimed that money lenders will harm him because he is unable to repay his debt of 100 000RMB he borrowed to purchase [farm equipment]. (He also told the Tribunal he had an outstanding debt of 250 000RMB to a relative in China, but his evidence to the Tribunal did not indicate he feared any harm from his relative in relation to this debt.) As noted above, the delegate’s decision notes [the applicant]’s student visa application indicates he and his wife have substantial savings in three different bank accounts in China and would not have any difficulty repaying any debts to the money lenders. [The applicant] now says this information is in his student visa application is false and neither he nor his wife having savings or assets in China.

4. Be this as it may, as I put to [the applicant], he told the delegate that he still owes people 100, 000 yuan but that it was not a big problem. [The applicant] responded that if he was return to China he couldn’t earn that much but if he was to work in Australia he could repay it. It was put to him he had been working in Australia (he told the Tribunal he was working in the [occupation]) and he could use some of the money he had earned in Australia to pay off his debt. [The applicant] agreed that he could do that but said as far as he heard he couldn’t work every day. It was put to [the applicant] that he was in fact working. He agreed this was true but said he was not working everyday – he worked secretly for three days.  When asked about his debt of 250 000RMB to his relative, [the applicant] said he would definitely pay this off. He gave evidence that if he worked in Australia there would be no problems paying the debt to the relative off but if he couldn’t work in Australia there would be a problem. He gave evidence he had not been able to pay off the debt to his relative yet because when he arrived in Australia in December 2012 he heard he wasn’t allow to work so he didn’t and now he only works for a couple of days. He also has to pay for rent and other things and it is quite expensive.

5. In my view, [the applicant]’s evidence indicates he would like to continue working in Australia because he can earn more money here than he can in China. However, I consider his evidence that he is at risk of harm from money lenders because he is unable to repay has an outstanding debt of 100 000RMB in relation to his purchase of [farm equipment] is undermined by his statement to the delegate that the 100, 000RMB debt was not a big problem. On the evidence before me and having regard to my concerns about [the applicant]’s credibility as a witness, I do not accept that [the applicant] has an outstanding debt to money-lenders in relation to his claimed purchase of [farm equipment] and I do not accept he will face any harm for this reason. While [the applicant] may have another debt to his relative and it may take him longer to pay off the debt if he is working in China because he will earn less money than he can in Australia, I am not satisfied that he would be unable to pay off this debt to his relative if he returns to China. In any event, [the applicant] has not claimed that the relative to whom he is indebted will harm him for any reason or poses any threat to him in any way. On the evidence before me, I do accept that there is a real chance that [the applicant] would face any harm because he is in debt to a relative in China.

   [The applicant] delayed applying for a protection visa for over a year after he arrived in Australia

6. [The applicant]’s long delay in applying for protection supports the conclusion he does not fear harm in China. [The applicant] did not apply for protection until [date] February 2014 having arrived in Australia [in] December 2012. When he was asked by the delegate about his delay in applying for protection [the applicant] said they wanted to know more before they applied for the visa. Now they have travelled and seen more of the country they know the country is very good. While [the applicant]’s opinion of Australia may have improved as he has become better acquainted with the country, I am of the view that if [the applicant] had a subjective fear of being persecuted if he were returned to China, then his first concern would be to secure his own safety by seeking asylum, not to find out more about Australia.

7. I have formed the view that [the applicant] is someone who is prepared to change his evidence in the hope of obtaining a favourable immigration outcome. This view is reinforced by the fact that he provided different explanations to the Department and the Tribunal about his delay in applying of protection. As noted above, I do not find the explanation [the applicant] provided to the delegate about his delay in applying for protection to be persuasive. When I asked [the applicant] about his delay in applying for protection, he said he was not aware he could apply for a protection visa and when he found out he was able to do so he did; when he found a solicitor he made an inquiry. Asked to comment on why he provided a different explanation to the delegate, [the applicant] reiterated that at that time he did not know that a protection visa existed and he really liked Australia.  

8. A delay in applying for protection can often be readily explained. However, where the applicant fails to adequately explain their delay, it is legitimate to take into account an applicant's delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the applicant's claimed fear of persecution (per Heerey J, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347). In this case there are many reasons to doubt [the applicant] is telling the truth about his experiences in China and what he fears will happen to him if he returns. As noted above, there are inconsistencies in the information he provided to the department and the information he has provided to the Tribunal. His evidence to the Tribunal was, in significant respects, internally inconsistent and, after initially saying the information in his student visa application was true, he later said it was false.

9. While I acknowledge that there are circumstances where applicants may, because of language barriers or other impediments, be unaware that they have the right to apply for a protection visa in Australia. I am not persuaded that this is such a case. [The applicant] was able to engage a migration agent in China and apply for a student visa. While in Australia he has located work and accommodation.  He also provided different explanations for his delay in applying for protection to the delegate and the Tribunal. I do not accept that [the applicant] has adequately explained his lengthy delay in applying for protection. In this context, I consider his delay in applying for a protection, when considered together with the significant concerns about the credibility of his claims (set out above), supports the conclusion that [the applicant] does not fear harm in China.

   Findings of fact

10. For all the reasons that are set out above, I have concluded that [the applicant]’s claims are not credible. I do not accept that [the applicant]’s property was demolished as claimed and it follows that I do not accept that he complained to the authorities because he was not provided with a new property. I do not accept that [the applicant] was ever detained or otherwise mistreated by the Chinese authorities as claimed. I do not accept that he borrowed 100, 000 yuan from an underground organisation to buy [farm equipment] or that the authorities confiscated the [farm equipment] on the basis that it was illegal and detained [the applicant]. Because I do not accept that he borrowed money to buy [farm equipment] or that it was confiscated, I do not accept that he was chased by money lenders because he was unable to pay them the money he owed them. I do not accept he is now or was in the past of any adverse interest to the authorities or any individual money-lenders or money-lending organisations in China. I do not accept that any had difficulty departing China or that he or his family have ever had to bribe the authorities for any reason. I do not accept that [the applicant] decided to travel to Australia because he had been harassed, detained or otherwise subject to adverse attention from the authorities and/or because he had an outstanding debt in relation to the purchase of [farm equipment].

11. On the evidence before me, I find that [the applicant]’s claims for protection have been fabricated in the hope that he will be able to obtain a visa that allows him to remain in Australia. I reject his claims in their entirety. While I cannot discount the possibility that the information [the applicant] has provided in his student visa application about his occupation, education and finances is false, even if it was to accepted that that this information is false it does not overcome my concerns about the credibility of his protection claims. While I have rejected [the applicant]’s claims that he is at risk of harm because he has an outstanding debt to an underground organisation in relation to the purchase of[equipment], I am prepared to accept that he may owe a relative 250 000RMB for his travel to Australia. I have considered [the applicant]’s evidence that he would have problems paying off his debt to his relative if he was unable to work in Australia but, on the evidence before me, I am not satisfied that he would be unable to repay his debt to his relative if he returns to China. In any event, [the applicant]’s evidence does not suggest that there is a real chance that his relative will harm him if he faces difficulties paying off the 250 000 RMB.  On the evidence before me, I do not accept that there is a real chance that [the applicant] will face harm of any type (including serious harm or significant harm) if he returns to China because he has an outstanding debt to a relative.

12. On the evidence before me, I do not accept that there is a real chance that [the applicant] will suffer harm of any type (including serious harm or significant harm) from the Chinese authorities, property developers, or from money lenders if he returns to China now or in the reasonably foreseeable future. I do not accept that he has any profile with the Chinese authorities other than that of an ordinary Chinese citizen. Nor do I accept he is of any adverse interest to money lenders or developers or anyone else in China. Because I do not accept that the [the applicant]’s claims about his reasons for leaving China are true, I do not accept that, if he returns to China, he will be motivated to seek compensation from the Chinese authorities. I find that he has fabricated his claims in their entirety in the hope of achieving an immigration outcome. On the evidence before me, I find there is no real chance he will face any harm if he returns to China for any of the reasons claimed.

    Is [the applicant] a refugee?

13. I have found that [the applicant] is not a truthful witness. I do not accept any of his claims are factual. I reject entirely any implied claim he would face harm because of his political opinion (real or perceived) in China. I do not accept that [the applicant] has a well-founded fear of being persecuted on account of his political opinion or for any other reason if he returns to the PRC now or in the reasonably foreseeable future. [The applicant] is not a refugee.

    Is [the applicant] entitled to complementary protection?

14. I have found that [the applicant] has fabricated his claims in the hope of achieving an immigration outcome. Given my findings of fact, which are set out in detail above, I do not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to China that there is a real risk that the he will suffer significant harm for the purposes of s 36(2)(aa).

    CONCLUSION

15. 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

16. The Tribunal affirms the decision not to grant the applicants Protection visas.

    Frances Simmons
    Member