1502257 (Refugee)

[2016] AATA 4419

1502257 (Refugee) [2016] AATA 4419 (13 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1502257

COUNTRY OF REFERENCE:                  China

MEMBER:Rachel Homan

DATE:13 September 2016

PLACE OF DECISION:  Sydney

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

Statement made on 13 September 2016 at 8:41am

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who the Tribunal accepts is a citizen of China, applied for the visa [in] April 2014 and the delegate refused to grant the visa [in] January 2015.

3. The issues in the review are whether the applicant has a well-founded fear of persecution in China for one or more of the five reasons set out in the Refugees Convention; and whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk the applicant will suffer significant harm.

4. For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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.

6. 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).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. 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’).

9. 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.

   Visa application

10. According to information provided in his visa application forms, the visa applicant is a [age]-year-old Chinese national from Shandong province. The applicant claimed that he had never been married or in a de facto relationship.

11. The applicant claimed that he came to Australia on a student visa, which has now been cancelled. The applicant stated that he did not want to return to China due to mistreatment by the underworld and the corrupt government in China.

12. The applicant stated that in December 2009, he returned to his hometown after a business trip to [another province]. The applicant parked his company car at the roadside and went to have a meal in a restaurant. When the applicant emerged from the restaurant, some local gangsters stopped him and alleged that he had been involved in a hit and run. It was obvious to the applicant that they were trying to blackmail him. The applicant asked them if they had any evidence and if they could say when and where he hit them. They did not answer. Instead, they started pushing the applicant and physically attacked him. The applicant fought back in self-defence, beating one of them to the ground.

13. A few days later, the local police arrived at the applicant’s home to arrest him. The applicant was not home at the time. The applicant discovered that the person he had beaten had [a relative] working at [City 1] municipal government as the Chinese Communist Party (CCP) [official]. They forged documents and accused the applicant of assault and put an arrest warrant online. The applicant had no power to fight them and so the applicant left home and hid at a friend’s house in Hebei.

14. The applicant engaged a travel agent to obtain a visa for him to work [overseas] but the applicant was stopped by Chinese customs at Beijing airport. The [City 1] Public Security Bureau (PSB) requested the Beijing police to arrest the applicant. The applicant was arrested on a Friday and [City 1] PSB officers picked him up the next Monday. The [City 1] officers stayed in Beijing over the weekend and bought a lot of things then billed the applicant for their travel costs, accommodation and shopping expenses. The applicant’s family offered RMB [amount] to an official in Beijing to have the applicant’s case dropped. The applicant then travelled [overseas] after being released and lived there for 20 months.

15. Whilst [overseas], the case against the applicant was still pursued. Although the criminal charge was dropped, they tried to file civil proceedings against the applicant demanding a fiscal remedy. The gangsters also harassed the applicant’s family frequently. When the applicant returned to China from [overseas], he was approached by the group many times. The applicant was unable to live life and so his family decided to send him to Australia to study.

16. The applicant claimed that whilst in Australia, some new evidence was fabricated and the [City 1] police had launched new criminal proceedings against the applicant. The applicant claimed that if he returned to China he would be arrested and face an unknown destiny. The applicant claimed to fear being arrested and mistreated by the [City 1] police and underworld figures in his home town.

17. Submitted with visa application was a certified copy of the applicant’s Chinese passport. The applicant’s passport was issued to him in [2008] and contains [one-year work visas] for [Country 1] issued in March 2010 and March 2011. The stamps in the passport indicate that the applicant departed China [in] April 2010 and returned [in] December 2011.

    Protection visa interview

18. The applicant attended an interview with an officer of the Department of Immigration [in] January 2015 and the Tribunal has listened to a recording of that interview.

19. The applicant gave evidence at the interview that that in China he worked as a [occupation] for a [boss]. He had gone to [Country 1] to hide himself as it was not safe for him in China. In [Country 1], the applicant worked in [industry].

20. The applicant provided an account of the incident in which he was assailed by thugs after having dinner at a restaurant.

21. The applicant stated that he had been planning to go [overseas] [in] April 2010 but was stopped at the airport. Officials at the airport contacted the police in the applicant’s hometown, who confirmed that he was on a list to be arrested. The applicant was detained in a security room at the airport. Police from the applicant’s hometown went to Beijing that same night but picked him up on the Monday. From Friday to the Monday, the applicant was in a detention centre [while] the police from his hometown played tourist in Beijing.

22. After returning to his hometown, the applicant’s family members gave the police money. They had been planning to charge the applicant but the applicant’s parents had a [friend] to whom they gave money to have the applicant bailed out.

23. The applicant then went to an agent to ask whether he was still eligible to go [overseas] for work. The agent told the applicant that he still had a visa but he had to check whether the criminal charge had been erased. The applicant asked a friend from his village who worked with the police and was told the charge had been erased. The applicant stayed at home for 10 days, only going outside in secret.

24. When the applicant returned to the airport, he was again stopped. Officials called the police in the applicant’s hometown who told the officials that the applicant’s charge had been erased but the system had not been updated. The applicant was allowed to proceed and went [overseas].

25. Whilst the applicant was [overseas], he was sued by the thugs and forced to pay a lot of money in compensation. After giving the money, the applicant thought the matter was closed and so returned home. The applicant was at home for one month when the thugs found him again. The applicant asked them why they were doing this to him as he had already paid them money and they responded that it was not enough. The applicant found an agent to go overseas and came to Australia.

26. The applicant claimed that his family continued to be harassed whilst he was in Australia.

    Review application

27. The applicant was represented in relation to the review by a registered migration agent.

28. At the time he applied for review, the applicant submitted to the Tribunal a copy of the delegate’s decision record. 

29. The delegate’s decision record sets out the applicant’s migration history, which indicates that the applicant applied for a student visa in August 2012 and arrived in Australia one month after it was granted, [in] October 2012. The applicant’s student visa was cancelled in April 2013 and he sought review of that decision by the Migration Review Tribunal. The Migration Review Tribunal affirmed the cancellation of the applicant’s student visa on 9 December 2013. The applicant subsequently sought ministerial intervention under s.351 of the Act. That request was not considered. The present application was lodged after the applicant was notified of the outcome of his ministerial intervention request.

30. The delegate found that the applicant was not the victim of a gang attack and was not detained or stopped from leaving China. The delegate found that the applicant did not have a genuine fear of persecution and did not fear repercussions from thugs if he were to return to China. The delegate found that the Chinese authorities had no interest in the applicant.

31. No further evidence was submitted prior to the Tribunal hearing.

    Tribunal hearing

32. The applicant appeared before the Tribunal on 26 August 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

33. At the commencement of the Tribunal hearing, the Tribunal asked the applicant whether he had any documentary evidence he wished to submit. The applicant responded that he did not. The applicant also indicated that there had been no relevant change in his circumstances.

34. The applicant told the Tribunal that he was a citizen of China and no other country. The applicant confirmed that he did not hold a visa for any country other than Australia.

35. The applicant told the Tribunal that he arrived in Australia in October 2012 for the purposes of study. The applicant commenced an English language course but stopped after several weeks because his English language skills were lacking. The applicant told the Tribunal that his course fees were paid by his parents who sent him some money at the time. The applicant confirmed that his student visa was cancelled and that he sought review of that decision and then applied to the Minister for intervention in his case because he wished to resume his studies.

36. The Tribunal asked the applicant why, after his visa was cancelled, the applicant had not immediately sought to make a protection visa application given that he faced the imminent prospect of being forced to return to China. The Tribunal noted that the applicant’s delay in applying for the visa could cast some doubt over his claim to fear going back to China. The applicant’s response was initially unclear but later he suggested that, coincidentally, around Chinese New Year in early 2014, his parents had been approached by the thugs who had beaten him and commenced legal proceedings against him in China.

37. The Tribunal asked the applicant more about the problems he had in China in December 2009. The applicant told the Tribunal that he was a [occupation] in China. The applicant had been delivering some goods from [the other province] and returned to his home village. The applicant could not recall the exact time he returned but stated that he unloaded the [vehicle] and then had a meal in a restaurant. After the meal, the applicant parked the vehicle in the street and went to settle payment in relation to the delivery charges. When the applicant came back into the street, several people surrounded the applicant’s vehicle and accused the applicant of hitting someone. The applicant asked them where and when he had hit someone but they did not answer. They pushed the applicant and approached him for money. The applicant defended himself and a fight ensued. After the fight, the applicant drove off.

38. The applicant speculated that perhaps someone in the restaurant who had observed the fight noted the applicant’s vehicle registration and called the police. The police contacted the applicant’s boss who discovered that the applicant and his friends had been using the vehicle to make deliveries at the time. The applicant’s boss asked him what had happened and the applicant told him. The applicant’s boss told the applicant not worry and to wait at home. The applicant later heard that one of the people involved in the fight had gone to the local police station and asked them to arrest the applicant.

39. The applicant told the Tribunal that the police came to his home and tried to arrest him but he was out at work and not home at the time. The police then put the applicant on a wanted list. Hooligans from the local area kept approaching the applicant, so he decided to go into hiding [overseas].

40. The applicant was arrested at Beijing airport when he tried to depart [in] April 2010. The applicant was kept in a security room at the airport and the next day transferred to a detention centre. The police from the applicant’s home area were called the same night but did not collect the applicant until the Monday, when they took him back to [City 1]. The applicant’s parents spent some money and pulled some strings and, after spending one night in a detention centre, the applicant was released. In this way, the applicant was able to avoid being gaoled for three years.

41. The applicant asked his agent whether he was still able to go [overseas]. The agent said that he still had a visa that that he should check that the criminal case against him had been dropped. The applicant found someone who was able to have his case cancelled.

42. [In] April 2010, the applicant returned to Beijing and was again stopped by customs. The applicant told the officers that he had been in a fight at home that the matter was now settled. The officers suggested to the applicant that if he had been involved in a minor dispute it was unusual that his name was listed on an online wanted list. The officers suggested that someone was manipulating the case. The applicant was asked to wait and after half an hour or so was told that the case had been cancelled and he was free to leave.

43. The applicant confirmed that whilst he was in [Country 1] a civil case was lodged against him on the basis of some forged documents.

44. The Tribunal asked the applicant whether he had any documentary evidence of either the criminal charges or civil proceedings in which he was involved. The applicant stated that he had given all the papers to his former migration agent. The Tribunal noted that no documentary evidence had been submitted to the Department or the Tribunal and asked the applicant whether he had checked with his agent that the documents had been submitted. The applicant responded that the agent had stopped taking the applicant’s calls. The Tribunal noted that it had listened to the applicant’s interview with a departmental officer and at no point had the applicant mentioned any paperwork in his possession. The applicant responded that he was not asked whether he had any documents. The applicant said he could not recall when he had received the documents.

45. The Tribunal asked the applicant whether he still had any copies of the documents he had given to his agent. The applicant told the Tribunal that even if he had the documents the Tribunal would not believe him. The Tribunal asked the applicant why he held that opinion. The applicant stated that he was telling the truth but the Tribunal did not trust him. The Tribunal indicated to the applicant that the Tribunal had been asking him questions about his experiences in order to be able to form an opinion about whether he met the criteria for the visa. The applicant had claimed to have been the subject of a criminal charge and to have been involved in civil proceedings. It seemed likely that the applicant would be in possession of some paperwork in relation to those matters and the fact that he had not submitted such evidence cast doubt upon the genuineness of his claims.

46. At this point, the applicant produced a number of documents, which he claimed were original documents pertaining to the civil proceedings commenced while he was in [Country 1]. The Tribunal asked the applicant why he had not submitted this evidence earlier in the hearing when asked whether he had any documents to submit. The applicant told the Tribunal that he thought the Tribunal had already made a decision on his case so he did not think there was any utility in submitting the documents. The Tribunal put to the applicant that it was unclear why the applicant would have formed that opinion given that the very first question the Tribunal had asked of him was whether he had any additional documentary evidence to submit.

47. The Tribunal noted that the documents were untranslated and asked the applicant whether he had any English translations of the documents. The applicant’s agent then suggested that the interpreter engaged to assist with the hearing could translate the documents. The Tribunal invited the applicant to read the relevant documents aloud so that the evidence could be interpreted.

48. The applicant stated that one of the documents was a summons from a court. The applicant stated that the case related to a compensation dispute arising from [injury].  The summons was for a hearing [in] December 2010 at 2pm. The person summonsed was supposed to bring the document to the court. The document was dated [in] November 2010.

1. The Tribunal noted that the applicant was in [Country 1] at the time and asked the applicant whether anyone attended court on the hearing date. The applicant told the Tribunal that his mother had attended. Asked whether she had a lawyer or had sought any legal advice, the applicant said she probably went to court with the head of the village. The Tribunal asked the applicant what happened at the hearing. The applicant responded that he was not at home. The Tribunal asked the applicant whether he had asked his mother what happened. The applicant responded that he did not want to remember this dark period of his life over and over again. The Tribunal reminded the applicant that he needed to provide the Tribunal with all of the evidence and information he had in order to enable the Tribunal to make an assessment as to what had happened to the applicant in the past and in order to assist the Tribunal to decide whether he had a well-founded fear of persecution or faced a real risk of significant harm. The applicant did not respond.

2. The Tribunal noted that the applicant had claimed that his family had been required to pay compensation. The applicant’s evidence, however, was that he had been set upon by the group of men. The Tribunal asked the applicant how the court reached the conclusion that the applicant’s mother was required to pay compensation. The applicant responded that the powerful people forged documents and went to a hospital and got a medical certificate and made claims relating to lost wages and the need for a carer. The Tribunal asked the applicant whether his mother had defended the allegations. The applicant stated that she did not. The Tribunal asked the applicant why she had not defended the allegations. The applicant responded that the other people were powerful.

3. The Tribunal asked the applicant about the other documents in his possession. The applicant stated that one of the documents related to the compensation. The Tribunal asked the applicant whether he wished to read out the document. The applicant responded that he did not. The Tribunal asked the applicant whether there was any reason why he did not wish to read out the document. The applicant then agreed that he would.

4. The applicant stated that the document was a civil charges application which stated that the applicant was liable to pay compensation in relation to [various] expenses in the amount of CNY [amount], as well as legal fees and postage. The date of the document was [in] November 2010.

5. The applicant described another of the documents as a judgement in a civil case, which stated that the applicant and respondent in the case had reached agreement with regard to compensation and the applicant had applied to the court to have the proceedings withdrawn [in] March 2011. The court had determined that the application to withdraw the proceedings should be approved. The applicant in the matter would bear the cost of the court process fees with a 50% discount.

6. Another document in the applicant’s possession was described by him as an information sheet about the responsibilities and rights of people going before the court.

7. The Tribunal asked the applicant whether he had any further problems after the civil case was settled. The applicant stated that persons often came to him asking for money. The Tribunal asked the applicant why they would continue to approach him for money if they had agreed to withdraw the case. The applicant responded that they said that the compensation was too little.

8. The Tribunal asked the applicant why he decided to return to China from [Country 1] in late 2011. The applicant stated that his health was not good at the time. The Tribunal noted that the applicant’s evidence was that he had left China because he was afraid for his safety. The applicant responded that there was no medication or suitable hospitals in the place where he was living in [Country 1].

9. The Tribunal noted that the applicant remained in China for a period of about 10 months before he travelled to Australia. The Tribunal asked the applicant whether he had any problems during that period. The applicant told the Tribunal that in the beginning there were no problems but later, in around April or May 2012, the person who had sued the applicant learned that he was home again and came asking for money.

10. The Tribunal asked the applicant what happened when that person came to his home. The applicant said that his father told the person that they had already given him money. The man responded that the money was not enough. The applicant told the Tribunal that they often harassed him and his family members. The Tribunal asked the applicant how they were harassed. The applicant responded that they were powerful. The Tribunal asked the applicant for more detail. The applicant said they just asked for money. The Tribunal asked the applicant how often this happened. The applicant stated that when they knew he was at home they went there. The Tribunal asked the applicant how many times this happened. The applicant stated that they just asked for money during festivals and New Year’s. The Tribunal asked again how many times this had happened. The applicant stated that in the period before he departed China they came to his home twice. The Tribunal asked the applicant to tell it exactly what had happened on each of those occasions.

11. The applicant responded that on one occasion he was at home having a meal when they came to his home asking for money. The applicant’s father’s said, “we already gave you money”. They said, “the money was too little” and that the applicant should give them another CNY [amount]. They went away with another CNY [amount] and said they weren’t done.

12. The second time, the applicant was not at home because he was too afraid to stay at home. The applicant claimed that he was staying in Hebei. The Tribunal asked the applicant whether he had asked his parents what happened. The applicant stated that they came asking for money. The applicant was not at home so they left. The Tribunal noted that the applicant had not been at home when the compensation case was lodged and asked the applicant why his absence would deter them. The applicant stated that his family had no money. The Tribunal asked the applicant why he had decided to go into hiding in Hebei. The applicant stated that if they found him, they would ask him for money and beat him up.

13. The Tribunal noted that the applicant had claimed that further proceedings had been commenced since he was in Australia. The applicant told the Tribunal that around New Year 2013 they went to his home again. The applicant was not home and they learned that he had gone overseas. The applicant’s family had no money to give to them. They then told the applicant’s parents that they would try to arrest the applicant using the Internet. The Tribunal asked the applicant what he thought they meant by this. The applicant stated that they would put him on a wanted list on the Internet. The Tribunal asked the applicant to describe in more detail exactly what happened when these people went to his parents’ home on this occasion. The applicant stated that they asked for money. His family had no money to give to them. They learned that the applicant was overseas. When they realised this, they said they would arrest him on the Internet.

14. The Tribunal put to the applicant that it did not understand what was meant by “being arrested on the internet”. The applicant suggested that they may put a warrant for his arrest on the Internet in the same way they had when the applicant was arrested in Beijing. The Tribunal asked the applicant whether this had in fact been done. The applicant stated that he couldn’t access the Internet in order to check this out. The Tribunal asked the applicant how he learnt about this threat. The applicant stated that they told his parents that they would do it. The Tribunal noted that a threat had been made but asked the applicant whether he thought an arrest warrant was actually in existence. The applicant stated that they had done this previously. The Tribunal put to the applicant that it was wondering whether this was an empty threat or whether they acted on the threat. The applicant stated that he was too afraid to go back to China in case he was arrested.

15. The Tribunal asked the applicant whether any police had been to his home asking about him. The applicant said probably not. The Tribunal put to the applicant that it had been about two years since the threat was made, if there was an actual warrant for the applicant’s arrest, it would seem likely that the police would conduct some sort of investigation or ask his parents some questions about his whereabouts. The applicant responded that if they put a warrant on the Internet, the applicant could not escape and there was no need for them to try to arrest him.

16. The Tribunal noted that before the applicant went [overseas] the police had come looking for him. The applicant then denied that the police came looking for him the first time. The Tribunal put to the applicant that in his visa application forms, the applicant had claimed that the local police came to arrest him but he was not home at the time. The Tribunal noted that the same claim had been made earlier in the Tribunal hearing. The applicant responded that when they couldn’t find him, they put his name on the Internet.

17. The Tribunal put to the applicant that it questioned whether the applicant’s name was on an arrest list or whether there was a warrant for his arrest in existence, given there had been no apparent investigation by police and he had no evidence of any criminal charge pending against him, apart from the threat apparently made to his parents two years ago. The applicant agreed that he had no other evidence. The Tribunal put to the applicant that in those circumstances, the Tribunal had some doubt as to whether there was a real chance or risk of him being arrested on return to China. The applicant did not respond.

18. The Tribunal asked the applicant whether he could go to some other part of China to avoid further problems in the event that he was able to re-enter China without being arrested. The Tribunal noted that the applicant’s problems appeared to be localised and involved people in his home area and the local police. The applicant had lived and worked in [Country 1] and Australia and it was not apparent that he could not safely or reasonably live in another part of China. The applicant stated that he had been apart from his parents for a long time and would want to be with them. The Tribunal put to the applicant that Australia would only owe protection obligations to him if there was no part of China in which he could safely and reasonably live. The applicant responded that he hoped the Tribunal could give him protection. The Tribunal asked the applicant again whether there was any reason why he thought he could not go to another part of China. The applicant did not respond.

19. The Tribunal put to the applicant that it was having trouble seeing how the applicant met the refugee or complementary protection criteria. The Tribunal noted firstly that it was having difficulty accepting that the applicant would be arrested upon return to China because the only evidence of any outstanding charge against the applicant was a threat seemingly made to the applicant’s parents 2 years ago. The Tribunal also noted that if a dispute were to once again arise in relation to this matter, or the applicant was afraid that a dispute would arise, because the dispute involved people in his home town and some corrupt local officials, it seemed the applicant could safely relocate to another part of China. It was also not apparent that it would be unreasonable for the applicant to relocate to another part of China given that he is young, has lived overseas and has experience working in places other than his town. The Tribunal asked the applicant whether he had any response to these issues. The applicant said that no matter what he said, the Tribunal would not believe him. The Tribunal told the applicant that this was not the case and that it had put these issues to him in order to provide him with an opportunity to respond to them and that the Tribunal would take into account all of the evidence, including his responses, before making an assessment of his evidence. The applicant did not respond and stated that there was nothing further he wanted the Tribunal to take into account.

20. The applicant’s migration agent told the Tribunal at the end of the hearing that he had only recently been appointed to the case and that he would like additional time to review the file. The Tribunal indicated that it would allow a period of two weeks for further submissions but that if further time was required, the Tribunal would consider any request for an extension of time.

21. At the time of this decision, no further submissions have been received by the Tribunal.

    Findings

22. The Tribunal has serious concerns about the credibility of the applicant’s claims. The Tribunal had considerable difficulty obtaining evidence from the applicant at the Tribunal hearing. The applicant’s demeanour was defensive and hostile from the outset and he appeared reluctant to provide the Tribunal with any detail surrounding his past experiences, apart from a heavily prompted recitation of the evidence set out in his protection visa application forms and repeated at the departmental interview. These accounts varied in minor details but remained broadly consistent over time. The Tribunal has not placed weight on any inconsistencies.

23. The applicant’s reluctance to submit to the Tribunal the documentary evidence of the civil proceedings in which he claimed to have been involved is confounding. The Tribunal is prepared to accept, on the basis of those documents, that the applicant was the subject of civil proceedings following a physical altercation and that the proceedings were settled or withdrawn after the applicant’s family agreed to pay compensation.

24. The Tribunal is not satisfied, however, that the altercation occurred in the circumstances described by the applicant, or that the applicant has ever been arrested, had a warrant issued for his arrest or been placed on an online wanted list or database.

25. There is no documentary evidence before the Tribunal regarding the applicant’s claimed arrest and detention. The applicant’s description of his arrest at Beijing airport and events during the days that followed, lacked any circumstantial detail and the Tribunal did not form the impression that the applicant was describing his actual personal experiences. The applicant’s decision to return to China from [Country 1], despite having recently been the subject of allegedly fraudulent civil proceedings at the hands of his assailants, and despite his claim to have left China in fear for his life, casts further doubt over his claims.

26. The applicant had to be prompted repeatedly, and was only able to describe in brief terms, the two visits paid to him or his family after his return to China in which further demands for money were made. The descriptions given lacked plausibility. The applicant was unable to explain why his assailants would continue to demand money from him if they had agreed to withdraw the civil proceedings filed against him.

27. Similarly, the applicant’s description of the threat made to his parents around the time of Chinese New Year 2013 was unconvincing. Even if a threat had been made that the applicant would be charged with a criminal offence, there is no evidence of any warrant for the applicant’s arrest, any charge having been laid, the applicant’s name having been placed on any wanted list or any further police investigation.

28. Having carefully considered the evidence, the Tribunal is not satisfied that the applicant was accused by local gangsters of having been involved in a hit-and-run. The Tribunal is not satisfied that the applicant was blackmailed. The Tribunal is not satisfied that the applicant beat person who had a relative working in the [City 1] municipal government as a Chinese Communist Party [official]. The Tribunal is not satisfied that this person forged documents and falsely accused the applicant of assault and arranged for an arrest warrant to be put online. The Tribunal is not satisfied that the applicant was in hiding prior to his departure for [Country 1]. The Tribunal is not satisfied that the applicant was arrested at Beijing airport or detained by [City 1] PSB officers or that he was released after his mother paid a bribe. The Tribunal is not satisfied that the applicant’s family was frequently harassed by gangsters or that a threat was made to them that the applicant would be arrested using the Internet around the time of Chinese New Year 2013. The Tribunal is not satisfied that any new evidence has been fabricated or that the [City 1] police have commenced new criminal proceedings against the applicant since his arrival in Australia.

29. Having made these findings, the Tribunal is not satisfied that there is a real chance or risk that the applicant would be arrested or mistreated by [City 1] police, any other Chinese agency or underworld figures in the applicant’s home town if he were to return to China. Given the evidence that the civil proceedings in which the applicant was involved were withdrawn after a settlement agreed in 2011, the Tribunal is not satisfied that there is now a real chance or risk of the applicant suffering serious or significant harm arising from that matter. The Tribunal is not satisfied that there is a real chance or risk of the applicant suffering serious or significant harm for any other reason should he return to China now, or in the reasonably foreseeable future.

30. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

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

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

    DECISION

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

    Rachel Homan
    Member