1503100 (Refugee)

[2017] AATA 1403

1503100 (Refugee) [2017] AATA 1403 (9 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1503100

COUNTRY OF REFERENCE:                  China

MEMBER:Amanda Paxton

DATE:9 August 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 09 August 2017 at 1:54pm

CATCHWORDS

Refugee – Protection visa – China – Fears Police and officials – Fears gangsters and moneylenders – Credibility issues

LEGISLATION

Migration Act 1958, ss 5(1), 36, 65, 48A, 424A(3)(c), 438, 499
Migration Regulations 1994, Schedule 2

CASES

SZGIZ v Minister for Immigration and Citizenship

Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIMA v Rajalingam (1999) 93 FCR 220

Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Kopalapillai v MIMA (1998) 86 FCR 547

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 claims to be a citizen of China, applied for the visa [in] September 2013 and the delegate refused to grant the visa [in] February 2015.

3. The applicant appeared before the Tribunal on 14 July 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. A copy of the delegate’s decision dated [February] 2015 refusing the applicant’s current application for Protection was provided to the Tribunal together with the application for review. In addition to setting out the reasons for refusing to grant the applicant a Protection the delegate’s decision contains a comprehensive outline of the applicant’s evidence to the delegate at interview.

5. The Tribunal listened to the interview with the applicant conducted by the delegate in connection with his protection visa application [in] June 2014. The applicant was represented in relation to the review by his registered migration agent.

6. The applicant lodged an application for a Protection visa [in] December 2009. This application was refused [in] March 2010. The Refugee Review Tribunal (RRT) affirmed the delegate’s decision on 30 June 2010. The applicant remained in Australia and made a second application for a Protection visa [in] September 2013.

   RELEVANT LAW

7. 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).

8. Relevantly for this review, s.48A of the Act imposes a bar on a non-citizen making a further application for a Protection visa while in the migration zone in circumstances where the non-citizen has already made an application for a Protection visa which has been refused. The Full Federal Court in SZGIZ v Minister for Immigration and Citizenship held that the operation of s.48A of the Act, as it stood at the time of this Protection visa application, is confined to the making of a further application for protection which duplicates an earlier unsuccessful application for a Protection visa, in the sense that both applications raise the same essential criterion for the grant of a Protection visa.

9. Applying the reasoning in SZGIZ, the Tribunal finds that it does not have power to consider the criterion in s.36(2)(a) of the Act that sets out Australia’s protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (Refugees Convention) because the applicant’s first protection visa application was refused by the Department on the basis of this criterion [in] December 2006. Instead, the Tribunal has proceeded on the basis that it can only consider the applicant’s claims under the complementary protection provisions in s.36(2)(aa), s.36(2)(b) and s.36(2)(c) of the Act. These requirements are outlined below.

   Complementary protection criterion

10. A person meets 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’).

11. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

12. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

13. 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.

    Credibility

14. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

15. The Tribunal also accepts that ‘if the applicant's account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

16. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

17. The Tribunal must bear in mind that if it 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 (see MIMA v Rajalingam (1999) 93 FCR 220).

18. 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 (see 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.)

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The issues in this case are as follows:

    ·are the applicant’s claims credible?

    ·if so, are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm?

    Nationality of the applicant

20. The applicant claims he was born in [year] in Fuqing, Fujian Province in China. As set out in the delegate’s decision record provided to the Tribunal by the applicant, the applicant provided an original Chinese passport to the Department issued in [City 1 in Australia] in 2013, in support of his identity. As set out in the delegate’s decision record provided to the Tribunal by the applicant, a copy of a Chinese driver’s licence was also provided to the Department. As set out in the delegate’s decision provided to the Tribunal by the applicant, the delegate considered that this Chinese passport may have been obtained with the assistance of an agent, but noted that the applicant stated he collected the passport from the Chinese Embassy, providing evidence of his identity to do this. On this basis, the Tribunal finds the applicant’s current Chinese passport was validly obtained. The applicant’s claimed identity is also in line with other documents, including a national identity card, which according to the delegate’s decision record provided to the Tribunal by the applicant, were submitted to the Department as part of previous applications. On the basis of the documentation before it, the Tribunal accepts the applicant is a national of China and that his identity is as he claims.

21. The applicant made no claim to be a national of any other country. The Tribunal accepts that his claims should be assessed against China as the “receiving country” for the purposes of the complementary protection obligations in s.36(2)(aa) of the Act. The Tribunal is satisfied that the applicant does not have a right to enter and reside in any other country and, therefore, he is not excluded from Australia’s protection obligations under s.36(3) of the Act.

    Claims for protection

22. In his current Protection visa application, the applicant claimed to fear return to China because he would be charged and persecuted by police and officials, and tortured or harmed by gangsters and money lenders in Fuqing.[1] As set out in the delegate’s decision record provided to the Tribunal by the applicant, the applicant also claimed he will be sentenced on return because he departed [Country 1] using a fraudulently obtained passport rather than his own Chinese passport. 

    [1] DIBP, CLF[number], ff. 18 - 21

    Assessment and findings

23. The Tribunal explored the applicant’s claims at hearing and on the consistent evidence of the applicant, and the documentary evidence before it, the Tribunal accepts the applicant was born in [year], in Fuqing, Fujian. On the consistent evidence of the applicant, the Tribunal accepts the applicant moved to [City 2] with his family when he was about [age] years old and that he was involved in running a [shop] at the market in [City 2]. On the same basis, the Tribunal accepts the applicant’s claims that his parents have now retired and moved back to their home in Fujing, and he is in regular contact with them by phone and video.

24. On the consistent evidence of the applicant supported by information from Departmental systems, as set out in the delegate’s decision provided to the Tribunal by the applicant, the Tribunal accepts the applicant’s evidence at hearing that he used a validly issued passport in his own name to go to [Country 2] for one of two months in 2007. The Tribunal accepts the applicant applied for a [temporary] visa to Australia in [Country 2] but this was refused and he returned to China.

25. On the evidence of the applicant at the hearing, the Tribunal accepts the applicant has been living in [City 1] for four or five years where he works as a [occupation] and has his own vehicles. The Tribunal also accepts the applicant’s evidence that he is now in a de facto marriage (“not a registered marriage”) and has a [child].

26. In assessing whether the applicant has a real risk of significant harm on return to China, the Tribunal has considered the applicant’s evidence provided to the Tribunal at hearing in regard to his claims. Noting the applicant interview with the delegate in connection with this application occurred in June 2014, the Tribunal enquired what the applicant fears might happen to him on return to China. The applicant stated that he does “not know what the reasons are that he is making this application now; that it has been a long time since he departed, and [he] does not remember many things.” The Tribunal accepts that it has been some years since the applicant departed China, but would expect he would know the reasons he is making this Protection visa application. The applicant’s inability to identify the reasons he was seeking protection led the Tribunal to hold serious doubts about the applicant’s general credibility.   

27. The Tribunal tried to elicit more information about his claims from the applicant and enquired whether the applicant had any concerns about returning to China. The applicant stated that he “had not thought that much about things that concerned him about returning.”  The Tribunal made further enquiry seeking to establish whether the applicant had any fears of significant harm on return and the applicant repeated that “I haven’t been thinking about this.” The Tribunal put the question in a different way, asking whether the applicant was seeking protection from harm in China, and the applicant answered “No”. When the Tribunal explained that the applicant had lodged a Protection visa and asked whether he had the fears he had claimed, the applicant did not respond. The Tribunal considered the applicant was provided with extensive opportunity to present his reasons for seeking protection in Australia and the applicant’s firm response that he was not seeking protection from harm led the Tribunal to the conclusion that the applicant has no real risk of significant harm on return to China.  

28. At hearing, the Tribunal advised the applicant that he had stated in his application that he fears significant harm from police and officials, gangsters and moneylenders if returned to China, and the Tribunal enquired whether this was the case. The applicant responded that, “Before I feared I would be arrested if I went back. But now I have a family here and wife and child, I have just been working hard. I haven’t been thinking of this, but I guess it could be for the same reason.” The Tribunal asked why the applicant feared he would be arrested in the past, and the applicant stated that “In the past I was by myself and had time to think about that but now have wife and child, I go to work during the day; I get home at night and look after the child. I don’t have time to think.” The Tribunal considers the applicant’s vague, limited and indirect responses to these questions indicate that he no longer puts forward these claims and that they are not relevant to his current circumstances. On the evidence of the applicant, the Tribunal formed the view that the applicant does not have a real risk of harm or arrest for any reason. The Tribunal is not satisfied the applicant has a real risk of significant harm for this reason.

29. The Tribunal prompted the applicant to be more specific and he commented that if he were arrested, what would happen to his wife and [child]. He said he that has no reason to think he would be arrested and he has no evidence or basis for this fear. “It is just a fear…the police do not need a reason to catch you” The Tribunal made further enquiry about the basis for this fear but the applicant did not respond to the question, but stated that everyone in his family had moved back to Fuqing.

30. Having regard to the applicant’s evidence discussed above and his reluctance to discuss his claims, as further identified below, and his vague and limited responses to enquiry, the Tribunal is not satisfied the applicant is a generally credible witness. The Tribunal is not satisfied there is any basis to the applicant’s claims that he will be arrested or charged, detained and persecuted by police and officials for any reason or tortured or harmed by gangsters and money lenders in China. The Tribunal does not accept the applicant has a real risk of significant harm arising from such treatment.

    Detention and mistreatment by security guards at the market

31. For completeness the Tribunal reminded the applicant of his various claims and sought his comment. In regard to his claim to have been detained by security guards at the market, the applicant stated he had provoked the manager of the market in [City 2], where his family had their shop, because the manager wanted his family to put up the price of goods but they refused to do this. He stated that this led to a fight with the market’s security guards, who had the backing of the police. He claimed the security staff arrested him, detained him and beat him up. He stated the security guards released him after several weeks when his father gave the manager some money. 

32. In considering this claim, the Tribunal has taken into account the following:

    ·     The applicant gave evidence that he was held by the security guards in a basement where he was locked inside for several weeks. The Tribunal put to the applicant that his account of this event was different from his previous accounts. The Tribunal stated that while the applicant told the Tribunal he was detained for several weeks, according to the delegate’s decision provided to the Tribunal by the applicant, he gave evidence in his interview and at hearing in association with his first Protection visa application that he was held for six months, and in his most recent interview with the delegate, he said he was held for one week. In response, the applicant suggested that his agent may have made a mistake in his application. The Tribunal notes that the applicant provided these statements in his oral evidence and on this basis the Tribunal does not accept this significant discrepancy can be accounted for as arising from an error on the part of the applicant’s agent. This significant discrepancy in the applicant’s evidence about the length of his detention, leads the Tribunal to have serious doubts as to the applicant’s credibility as a witness. On this basis, the Tribunal is not satisfied the applicant is a credible witness in respect to this claim.   

    ·     When the Tribunal asked what time of year this incident occurred, the applicant stated he could not remember. The Tribunal put to the applicant that, as set out in the delegate’s decision record provided to the Tribunal by the applicant, he had previously mentioned this occurred at New Year. The applicant repeated that he did not remember but he then agreed that it did occur at New Year because this was the time the management wanted shop owners to put prices up. The Tribunal acknowledges that his incident occurred some years ago, but, given the significance of this incident to his claims, the Tribunal would expect that had the incident occurred as claimed the applicant could have recalled that it occurred at New Year without prompting, given that this was relevant to the claimed dispute about prices at the shop. On this basis, the Tribunal is not satisfied the applicant is a credible witness. 

    ·     When the applicant stated he had no further reason to fear harm arising from this incident, the Tribunal reminded the applicant that he claimed to have written a letter of complaint to [a government agency] about the actions of the security guards. The applicant told the Tribunal that he could not remember the letter. Given the significance of this matter to the applicant’s claims, the Tribunal would expect that the applicant could recall writing a letter to the [government agency] had he taken this action.  The applicant’s inability to recall this letter led the Tribunal to have serious doubts about the veracity of the applicant’s evidence to have complained about his treatment to [the government agency]. The Tribunal does not accept the applicant wrote a letter of complaint to the [government agency].

    ·     The Tribunal raised the applicant’s claim, as set out in delegate’s decision record provided to the Tribunal by the applicant, that he had distributed anti-government pamphlets after the incident with the security guards. He told the Tribunal that he could not remember what the pamphlet was about, but he was upset about his treatment by the security guards. The Tribunal would expect that the applicant could key points of an anti-government pamphlet had he distributed them and if it had a bearing on something as important as his protection. The applicant’s inability to remember the basis of this pamphlet leads the Tribunal to have serious doubts about the applicant’s credibility and the veracity of his claim to have distributed anti-government pamphlets. The Tribunal does not accept the applicant distributed anti-government pamphlets.

1. In response to the Tribunal’s further enquiries whether there are any other reasons that raise concerns about return to China now, the applicant stated that he “Can’t think of any” and that “he does not know” if there is any reason to fear return. However, he followed up these statements saying that if he was caught, “what would happen to family, his wife and child, who depend on him.”  The consistent lack of specificity in the applicant’s responses caused the Tribunal to have further serious concerns about the applicant’s general credibility.

2. Taking account of all the evidence above, the Tribunal is not satisfied the applicant is a generally credible witness. On this basis, the Tribunal does not accept the applicant was arrested, detained and beaten by security guards, who had the backing of police, at the market for any reason. As above, the Tribunal does not accept the applicant wrote to [the government agency] complaining about his treatment at the hands of the security guards or that he distributed anti-government pamphlets. The Tribunal does to accept the applicant has a real risk of significant harm from security guards, officials, police or anyone else for these reasons.

   Money lenders

3. When the applicant stated again that he could think of no other reasons he may be arrested, the Tribunal prompted the applicant that he had claimed to fear money lenders. He told the Tribunal that he has no problem with money lenders now. On the evidence of the applicant, the Tribunal is satisfied the applicant will not suffer significant harm at the hands of money lenders in China. The Tribunal finds the applicant does not have a real risk of significant harm from money lenders on return to China.

   Departure from China

4. At hearing, the Tribunal reminded the applicant that he has claimed that he will be arrested by the authorities for departing China illegally and enquired about this claim. He stated that he does not know if he will be arrested if he goes back to China without a visa. The Tribunal put to the applicant that if he returns to China he will be returning on his Chinese passport which will entitle him to entry and he will not need a visa to enter. The applicant agreed that this would be the case. The Tribunal does not accept the applicant has a real risk of significant harm for this reason.  

5. On the Tribunal’s further enquiry about his claim to fear return to China because he departed illegally, the applicant stated that in 2009 he left China using someone else’s passport and that is illegal, and he would be sentenced on return to China for doing this. He stated that when he wanted to depart China in 2009 he bought a passport on the street in [City 3] in someone else’s name because he would be prevented from exiting China if he used his own passport because he knew he would have been “blacklisted” because of his anti-government profile arising from the incident with the security guards.

6. In considering this claim, the Tribunal has taken into account country information, put the applicant, that while there are reports of corruption and that fraudulent passports are available, sources suggest that passport fraud is less common than other types of document fraud. As put to the applicant, according to December 2011 advice from DFAT, while forged documents are widespread in China, cases of fraudulent passports appear to be less common, possibly because the government ‘could trace the documents in their internal database if required’.[2] Similarly, a 2007 briefing paper by the Economist Intelligence Unit comments that ‘fake passports are a rarity’.[3]

   [2] Department of Foreign Affairs and Trade 2011, DFAT Report No. 1349 – DFAT Request – CHN39550, 9 December <Attachment>

   [3] Economist Intelligence Unit 2007, Paper Chase: Document Fraud in the Immigration Process, September, p.18 < Accessed 4 June 2013 <Attachment>

7. As put to the applicant, DFAT further advise that it would be difficult to depart China in the event that a person was of adverse interest to the Chinese authorities or using a fraudulent passport:

   5.16 Chinese law provides for foreign travel, emigration, and repatriation. A number of agencies within the Ministry of Public Security hold responsibility for monitoring entry and exit procedures at Chinese airports, including the Public Security Bureau, the Entry and Exit Authority, and the Frontiers Inspection Bureau. China’s major airports have a centralised system with name matching alert capabilities. Security monitoring capabilities at major airports are comprehensive.

   5.24 Authorities can refuse to issue passports for people who are believed “will undermine national security or cause major losses to the interests of the State”. According to the US Congressional-Executive Commission on China, in 2013 an estimated 14 million people were affected by restrictions on foreign travel and acquiring passports, many of them religious and political dissidents, including Uighurs and Tibetans. The government does not publish figures on those who have been denied passports.

   5.26 DFAT assesses it would be difficult to depart China on a fraudulent passport owing to the sophisticated technology used and the degree to which surveillance by immigration and security agents occurs at China’s major airports. Overt bribery of border protection agents by an ordinary Chinese citizen would be difficult because of sensitivities to corruption, the professional and comparatively well-paid status of the Public Security Ministry, and the high-profile nature of its work. DFAT is aware of fraudulent documents being used in support of visa applications (such as hukou registration, proof of employment, academic transcripts, banking statements and ID cards). DFAT assesses these documents are relatively easy to produce and are commonly used in visa applications. DFAT has been told of the existence of sophisticated syndicates that service call centres set up specifically to provide targeted background stories in support of fraudulent documents used in visa applications. [4]

   [4] DFAT Country Report, People’s Republic of China, 3 March 2015

8. In response, the applicant stated that fake passports are very normal in China and that in [City 3] it is common to obtain passports in this way. He told the Tribunal that he did not have concerns about exiting on the fraudulent passport because the processes are not very strict. The Tribunal has taken the applicant’s response into account but given the independent advice above that it is difficult to depart China on a fraudulent passport, the Tribunal has serious doubts about the credibility of the applicant’s claims in this regard.

9. In considering the applicant’s claim to have departed China illegally, the Tribunal has taken into account the applicant’s evidence, as set out in the delegate’s decision record provided to the Tribunal by the applicant, that he used a fraudulent [Country 1] passport in the name of [name] to depart China and enter Australia. However, as discussed with the applicant, as set out in the delegate’s decision record provided to the Tribunal by the applicant, the Department has not been able to establish whether the applicant entered Australia on a fraudulent passport and the applicant’s evidence to the delegate that he was not interviewed on entry to Australia does not fit with Departmental records of the processes applying to [name]. When the Tribunal enquired about the applicant’s claim as set out in the delegate’s decision record provided to the Tribunal by the applicant that his passport may have been swapped at the airport but he could not explain how this occurred, the applicant stated that he was intercepted and his passport was handed in. The Tribunal considers the applicant’s evidence in this respect is vague and limited, and the Tribunal is not satisfied that the applicant is a witness of truth in this matter.

10. In consideration of the applicant’s claim to have departed China on a fraudulent passport because he was blacklisted, the Tribunal has also taken account that he applied for a new Chinese passport in 2013 and collected this from the Chinese authorities. Taking into account the country information above, put to the applicant, concerning the sophistication of Chinese systems, the Tribunal considers it is difficult to believe that the applicant would approach the Chinese authorities for a new passport, if he had departed China illegally or had concerns that his name was “blacklisted”.  This raises further serious doubts about the credibility of the applicant’s claim that he departed China on a fraudulent passport or that he would have been blacklisted by the Chinese authorities.

11. Taking all of the above into account, the Tribunal finds the applicant is not a credible witness.  On this basis, the Tribunal does not accept the applicant’s claim that he departed China on a fraudulent passport, or that he has been blacklisted by the Chinese authorities for any reason. The Tribunal does not accept there is a real risk the applicant faces significant harm from the Chinese authorities on return to China for this reason.    

    Certificate under s438 of the Migration Act

12. On 1 February 2017, subsequent to the hearing, the Tribunal received information provided to the Department of Immigration and Border Protection in confidence. This information which is provided as an allegation where the source has an expectation of anonymity was covered by a certificate and notification regarding the disclosure of certain information only to the Administrative Appeals Tribunal under s.438 of the Migration Act. The Tribunal assessed this certificate and notification as valid.

13. The Tribunal has considered the material covered by the certificate and notification and notes that it provides basic background information and bio-data about the applicant that is already before the Tribunal, and information that is otherwise general in nature discussing the applicant’s status as an asylum seeker who has engaged assistance in making this application. The material also covers the applicant’s family, his wife and children, who also intend to apply to remain in Australia, his employment and vehicles. The Tribunal considers the material covered by the certificate and notification raises no new issues, and is of only passing contextual relevance for the purposes of this review. A copy of the certificate has therefore not been given or disclosed to the applicant. In addition, even though the Tribunal has placed no weight upon this material, the Tribunal is also of the view that it is ‘non-disclosable information’ within the meaning of s.5(1) of the Act and therefore s.424A(3)(c) applies.

14. The Tribunal has had regard to all the circumstances and findings above, both individually and cumulatively, and finds there are not substantial grounds for believing that there is a real risk the applicant will suffer significant harm upon being removed from Australia to China.

    CONCLUSION

15. For the reasons given above and on the basis of information before me, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

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

    DECISION

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

    Amanda Paxton
    Member