1504204 (Refugee)

[2017] AATA 220

1504204 (Refugee) [2017] AATA 220 (3 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1504204

COUNTRY OF REFERENCE:                  China

MEMBER:Denise Connolly

DATE:3 February 2017

PLACE OF DECISION:  Sydney

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

Statement made on 03 February 2017 at 11:40am

CATCHWORDS

Refugee – Protection visa – China – Religion – Christian – Falun Gong – Particular social group – Wealthy businessman – Police Extortion – Medical conditions

LEGISLATION

Migration Act 1958, ss 5(1), 36, 48A, 65
Migration Regulations 1994, Schedule 2

CASES

SZGIZ v Minister v Minister for Immigration and Citizenship (2013) 212 FCR 235

SZGIZ v MIAC [2013] FCAFC71

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).

   Background

2. The applicant is a citizen of China, born on [date]. He has provided to the Tribunal a copy of the delegate’s decision record which sets out his migration history. He first arrived in Australia as the holder of a tourist visa in January 2000. He applied for a Protection visa which was refused in February 2000. That decision was affirmed by the then Refugee Review Tribunal in May 2000. In August 2000 the applicant sought Ministerial intervention however the power was not considered. He approached the Minister again in March 2004 but the matter was not referred to the Minister. He became an unlawful non-citizen soon after. In September 2005, he was located in the community and a Bridging E visa was granted. It ceased in November 2008 and the applicant remained in Australia unlawfully until May 2012, at which time he again sought Ministerial intervention. In October 2012 he attempted to lodge another Protection visa application which was not allowed. His Ministerial intervention application was not considered. Following the decision in SZGIZ v Minister v Minister for Immigration and Citizenship (2013) 212 FCR 235 (see below), the applicant lodged a further Protection visa application [in] May 2014, the subject of this review.

3. The applicant claims to fear persecution in China, claiming to have been a Falun Gong follower in China, a Christian who is baptised and a member of [a church] Community in [City 1]. He also claims to be a member of a particular social group, wealthy Chinese businessmen. He claims that he was forced to flee China due to extortion by the police forcing him to sell his [business], for which he owed a significant sum in taxes that he could not pay. The applicant also believes he will not receive adequate psychological and medical care in China. He had [Medical procedure 1] in 2005. He also [had a Medical condition 1] in 2013 and has [Medical condition 2].

4. The delegate refused to grant the visa [in] March 2015. She was not satisfied the applicant is a practising member of Falun Gong and found he would not practise Falun Gong if he returned to China. She was also not satisfied the applicant, as a Christian, would be persecuted by the authorities if he returned to China. She did not consider ‘wealthy Chinese businessmen’ to be a cognisable group within Chinese society but in any case was not satisfied he was of any adverse interest to the authorities because of a failed business. She was not satisfied he would be of any interest to the authorities if he returned to China. She was also not satisfied his ill health would meet the criteria for engaging Australia’s protection obligations. The delegate was not satisfied that the applicant would face either serious or significant harm upon his return to China, when assessed under both the Refugees Convention and the Complementary Protection provisions. For the reasons discussed below, the Tribunal has assessed the applicant against only the Complementary Protection provisions.

5. The applicant appeared before the Tribunal on 3 November 2016 to give evidence and present arguments. The Tribunal also received oral evidence from his friend and representative, [Ms A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Relevant law

6. Section 48A 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 made an application for a Protection visa which has been refused. However, in SZGIZ v MIAC [2013] FCAFC71, 3 July 2013, the Full Federal Court found that s.48A did not prevent a non-citizen who had made a valid application on the basis of the Refugee criterion in s.36(2)(a) from making a further application on the basis of the Complementary Protection provisions in s.36(2)(aa) whilst he or she remained in the migration zone. As the applicant has previously had his claims assessed against s.36(2)(a) he is entitled only to have his claims assessed under the Complementary Protection provisions in s.36(2)(aa).

7. The Complementary Protection provisions (see attachment relating to these provisions) in s.36(2)(aa) essentially require that the applicant is a non citizen in Australia in respect for whom the Minister is satisfied Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer ‘significant harm’. Significant harm is defined in s.36(2A) of the Act to include that the non citizen will be arbitrarily deprived of his or her life; the death penalty will be carried out on the non-citizen; the non citizen will be subjected to cruel or inhuman treatment or punishment; or the non citizen will be subjected 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.

   The applicant’s claims

8. The Tribunal has considered the material in the Departmental files, the documentary information provided to the Tribunal and the oral evidence of the applicant and his witness, [Ms A], given at the hearing. It has listened to the recording of the applicant’s interview with the delegate [in] February 2015 and it is satisfied the delegate has recorded correctly the applicant’s oral evidence given in that interview in her decision record, which has been provided to the Tribunal by the applicant’s representative.

9. The applicant has provided to the Tribunal documentary evidence regarding his various medical conditions. Having regard to all of his medical evidence, the Tribunal finds the applicant has [health condition] and has undergone [Medical procedure 1] in 2005. He had [Medical condition 1] in 2013. He has also struggled with [a certain condition] and has [related symptoms]. He has been severely [affected by Medical condition 2] from time to time as reported in 2012. His medication regime has in the past been difficult to manage because of [this certain condition] (however he told the Tribunal at the hearing that he has [experienced some improvement in this condition]). He has had various admissions to hospital, most recently in September 2016 because of concerns about his [other symptoms]. He has also required treatment recently in June 2016 for [Medical condition 1] associated with a fall. In considering his evidence the Tribunal takes into account that the applicant has significant medical concerns which may impact on his memory and ability to give oral evidence.

   Falun Gong membership

10. The delegate sets out the applicant’s claims from his 2000 Protection visa application in which he claimed to have become a Falun Gong practitioner in April 1999. He claimed that, as a manager, he was criticised by the upper leaders for his Falun Gong involvement. However he continued to practice at a member’s home until December 1999 when the police stormed the group. He claims he was arrested, detained and tortured for 5 days. His leader was sentenced to 4 years’ imprisonment. The applicant was scared and decided to leave China. After he arrived in Australia he called his wife in China who told him the police were looking for him. His wife warned him not to return or he would be arrested.

11. The delegate recorded that at his interview in 2015, when asked about his Falun Gong membership, the applicant indicated he had only done Falun Gong a few times. He said it was not convenient to go to Falun Gong since he joined the church. When asked about his Australian practice he indicated that he had only done Falun Gong in Australia a few times because he was too sick to do Falun Gong. He confirmed that he had no difficulty leaving China, or renewing his passport in Australia at the Chinese Consulate General in [City 1]. The delegate noted this would suggest the Chinese authorities do not have an adverse interest in the applicant. The delegate concluded the applicant is not a Falun Gong practitioner and would not practise Falun Gong if he returned to China.

12. Prior to his hearing the applicant provided to the Tribunal documentary evidence in relation to his medical and psychological conditions. There is a psychological report from his treating psychologist that goes into some detail about his background and migration history. None of this material mentions Falun Gong practice.  The Tribunal asked the applicant why he left China, and about his previous and current claims. Initially he did not mention Falun Gong practice. When asked why he had previously made claims about Falun Gong but had not mentioned it at the hearing, he indicated he had been advised to make Falun Gong claims. When it was put to him by the Tribunal that in those circumstances it may find that his evidence is not reliable, he then claimed that he did practice Falun Gong in China but he did not realise the political implications of Falun Gong. When asked about the frequency of his practice he indicated he practised for over a year about once or twice a week. The Tribunal explained to the applicant that this evidence was inconsistent with the evidence recorded by the delegate in the decision record he had provided to the Tribunal. The applicant then indicated he did not practice Falun Gong in Australia because he realised there was a political element so he stopped. The Tribunal asked why he would stop practising Falun Gong in Australia if he was free to do so, regardless of any political element. He repeated that he realised it was political so he stopped. The Tribunal noted that previously he had claimed that his Falun Gong group was stormed and arrested and that he was detained and tortured for 5 days. It asked why he did not know about the political element if this claim was true. He indicated that, when he was arrested, he did not know that Falun Gong was political. The Tribunal asked about the arrest. He indicated he was in the park, contrary to his written claim that it was at a member’s home.

13. The Tribunal has considered all of the applicant’s evidence regarding his Falun Gong claims. It has taken into account the applicant’s medical conditions and the difficulties in giving evidence in a hearing setting. However the Tribunal finds the inconsistencies in the applicant’s evidence regarding his Falun Gong claims to be highly concerning and indicative of fabrication. The applicant’s evidence regarding the frequency of his practice and the location of his arrest, and his knowledge of the Chinese authorities’ views about Falun Gong cast significant doubt on the reliability of his evidence. The Tribunal also notes that when it asked the applicant about his reasons for not wanting to return to China he did not mention a history of Falun Gong practice. It also notes that despite his claims to have been known to the authorities because of his Falun Gong practice he had no difficulty in departing China or having his passport renewed. Overall, because of these inconsistencies and the unpersuasive nature of his evidence regarding these claims the Tribunal does not accept the applicant has been a Falun Gong practitioner in the past or currently. It does not accept that he was arrested, detained and tortured for 5 days because of his involvement in Falun Gong. It does not accept that difficulties arising from Falun Gong practice led to his fear and decision to leave China. It has formed the view that he manufactured the claim that, because of his Falun Gong practice, after he arrived in Australia, his wife told him the police were looking for him and warned him not to return or he would be arrested.

14. As the Tribunal is not satisfied the applicant has ever practised Falun Gong it is not satisfied he would practise Falun Gong if he were to return to China. In view of these findings, the Tribunal is not satisfied that there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, that there is a real risk he will suffer significant harm as defined in the Act, because of Falun Gong practice.

    Christianity

15. The applicant has claimed to be a member of [Church 1] where he was baptised in 2013. The delegate records that she contacted [Mr B], a pharmacist and member of [Church 1] congregation, who confirmed he provides the applicant with medication and support. His wife, [Ms B], has been the applicant’s psychologist. [Mr B] stated that he takes the applicant to church each week.

16. The delegate records that when she asked the applicant about his Christian practice he said started going to an underground church in China. His son was in trouble and so the applicant started to go to church on Sunday nights where about 20 people attended. However he could not remember when he started but thought it was in about 1995. He said he attended for about 3 or 4 years before he came to Australia. He said they worshipped, read the Bible and prayed together. The delegate noted that when she asked why he did not mention his Christian practice in his first Protection visa application, the applicant said in those days he was Falun Gong. When asked about his faith, the applicant said it gave him strength after he had [Medical condition 1] (in 2013). The delegate formed the view the applicant had a small amount of knowledge about Christianity. He knew about Easter, the names of 2 books from the New Testament and that Abraham lived for 900 years. The delegate formed the view his level of knowledge was not consistent with that of a person practising Christianity for 20 years. She considered the information he gave about his practice in China was superficial. She also noted that he claimed to have started attending church in China after his son was put in prison. She calculated his son would have been [approximate age] at the time he claims to have started his Christian practice. She noted that the applicant came to Australia in 2000 but said he did not start attending church in Australia until 2005 when he met a priest while in hospital for a [medical] problem. She noted he was not baptised until 2013. When this was put to him his reason for this was there was no baptism in China. He [had an ongoing condition 2] and met a psychologist in Australia a couple of years before his interview with the delegate and she was a church member. The delegate noted that the applicant said he came to Australia in 2000 because he was a Christian. When asked why he did not attend church in Australia for 5 years he said there were language difficulties. He described his church attendance as intermittent, with sometimes years between visits. She formed the view the applicant has an opportunistic approach to his faith. She noted however that he has links to the church and receives charity from church members. He lives in a property owned by a church member and [Mr B] provides his medication. However she was not convinced that the applicant is a committed member of the church in Australia. She recorded that the applicant did not describe any difficulty in attending church in China but has claimed if he returned to China he would be grabbed and questioned by the police. She noted that the country information at the time indicated that officials in Guangdong were allowing unregistered places of worship to operate. She was not satisfied he would be persecuted by the authorities because of his Christianity if he were to return to China.

17. At the hearing the Tribunal discussed with the applicant his Christian practice and the concerns raised by the delegate. The applicant told the Tribunal he commenced his practice in 2000. When it was put to him that this was inconsistent with his written claims and evidence to the delegate he changed his oral evidence and said he was a Christian in China but ‘secretly’. He thought he became a Christian in China in 1999. He said a year later God told him to go to Australia. The Tribunal explained to the applicant its concern that he might not be telling the truth because his evidence on this issue was inconsistent and he had not mentioned any concerns about Christianity, only Falun Gong, in his first Protection visa application. He merely said that he was practising Falun Gong also but did not know there were political implications.

18. The Tribunal asked the applicant for more detail about his Christian practice. He said he was really down and friends told him he would get relief from Christianity. When asked to describe how he practised in China he said he did not do much. He listened to scriptures but it was just for a short period, just a bit more than a month but less than 3 months. The Tribunal noted this evidence was inconsistent with his evidence as recorded in the delegate’s decision record, which he had provided to the Tribunal. He said after his [Medical condition 1] everything is vague. The Tribunal asked about his current practice. He said someone drives him in a car to church. He started after his [Medical procedure 1] when he met a pastor at the hospital who prayed for him and gave him a bible.

19. The Tribunal asked the applicant why Christianity is important to him. He said it gives him hope and comfort and the community support is good. He believes Christ will give him eternal life. It takes away his fear of death. He used to go to church regularly but he had an accident and injured [himself] (the medical evidence indicates this happened in June 2016). The Tribunal asked why, if he has been a genuine committed Christian for several years, he was not baptised until 2013. He said that before then he did not go every week but in 2013 he developed a deeper understanding and wanted to take his faith to a deeper level. When it was put to him that the country information in the delegate’s decision record indicates he may be able to practice Christianity without fear of harm in China he indicated he did not know what was happening in China. When asked if he would practise Christianity in China he said that he has no intention of returning to China. He has lost confidence in China. He intends to die in Australia. When it was explained to him that the Tribunal needed to make findings about his practice, if any, in China, he said he would pray every day, even if it was by himself.

20. The Tribunal explained to the applicant the concerns raised by the delegate’s record that his knowledge about Christianity is limited and not indicative of a person practising Christianity for several years, the applicant said that he had only gone to a few meetings in China. He repeated this when the Tribunal raised the concerns about the inconsistencies in his evidence about his Christian practice. He said he could not remember why he did not practice when he first came to Australia.

1. The Tribunal has taken into account that the applicant has had a [Medical condition 1] and that this might affect his memory. However when considered overall it does not accept that he had any involvement in an underground church in China because his evidence about this practice is inconsistent. It also does not accept he came to Australia because he feared persecution due to his Christianity as it has formed the view a person in those circumstances, coming from China, would have found a church in [City 1] where other Cantonese speaking Christians attend. It has formed the view he did not practice Christianity in Australia for several years after arriving here because he was not a Christian. The applicant has provided to the Tribunal a letter from the Minister at [another church] dated [in] April 2012 which states that the applicant was [Ms A’s] employee at her [named business] and he was asked to help the applicant because he was annoyed by evil spirits. However it does not say that the applicant attended the church as a practising Christian. His psychologist sets out his background in China and his migration history and does not mention Christian practice. The letter from his pharmacist [Mr B], dated [in] February 2015, indicates he came to know the applicant in 2012 and visited him in hospital in 2013. He told the delegate he then started taking the applicant to church. The Tribunal is of the view this is when the applicant first started attending a Christian church because his evidence about his practice prior to this is vague and inconsistent.

2. The Tribunal accepts the applicant enjoys charitable support from the Christian congregation at [Church 1]. It accepts that the applicant prays and this helps him to deal with his fear and [ongoing condition 2]. The Tribunal appreciates that the applicant has had significant medical conditions where his prognosis has not been good and these circumstances have exacerbated his [Medical condition 2]. Overall the Tribunal is satisfied the applicant has been part of a Christian community in Australia since about 2013. It accepts that he was baptised in 2013. However, while it accepts the applicant may enjoy comfort from praying, the Tribunal is not satisfied the applicant would continue to be part of a Christian community if he were to return to China. He was given opportunities during the hearing to describe his Christian practice if he were to return to China and essentially he indicated he would continue to pray, even if it was by himself. The Tribunal is not satisfied that such practice would draw the attention of the authorities. The Tribunal is therefore not satisfied that he would come to the adverse attention of the Chinese authorities in China for these reasons.

3. In view of these findings, the Tribunal is not satisfied that there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, that there is a real risk he will suffer significant harm, because of his Christian practice.

   Member of a particular social group – wealthy Chinese businessmen

4. The applicant has claimed that he had to flee China because he is a failed wealthy businessman. He claims he was the victim of extortion from the police. This forced him to sell his [business] and he now owes the government a large sum of tax. The delegate’s decision record records that the applicant did not mention this claim at the interview until prompted. He then said he had given his son a large sum of money to start an [product] business. The son then got involved with bad company who spent all the money, stole the [products] and framed his son as a thief. His son was then imprisoned and the applicant had to sell his business, a [service business], to pay the authorities bribes to release his son. His son is now a fugitive in China. The applicant then had to flee China. The applicant said he did not mention this claim in his first Protection visa application or at the RRT because he was not asked about his son. He told the Tribunal the whole reason he ran away was because he helped his son. He thought he had to give a reason to fear persecution so he chose religion because he did not think ‘business’ was a reason for persecution. However the Tribunal notes that when the delegate later asked the applicant why he could not return to China, he mentioned only his Christian belief and his illness.

5. At the hearing the applicant confirmed he left China as part of a tour group. He had no difficulty leaving; he just followed the tour. He has not had difficulty renewing his passport since arriving in Australia. Having regard to the country information set out in her decision record the delegate formed the view that this suggests he is not known to the authorities for any adverse reason. The delegate also noted that the son, born [year], would have been only [age] in 1994, around the time the applicant has claimed his son got into trouble. The delegate asked the applicant why his son only had to leave town, whereas the applicant had to flee the country. The applicant had no response. The delegate found unpersuasive the applicant’s claim that he gave his teenage son a large sum of money to start a business.  She noted that his description of the events did not fit the timeframes in which he claimed they occurred. She also noted that he recorded in his visa application that he sold his business in 1992 (when his son was only [age]) but that his son got into trouble in 1994. She noted that he has stated he had to leave China because of these difficulties but he did not leave until 2000. Due to the inconsistencies in his evidence and the delay before he departed China the delegate was not satisfied the applicant was of any adverse interest to the authorities because of his failed business.

6. The Tribunal discussed with the applicant these claims and inconsistencies, and in particular his evidence regarding his son’s incarceration, his debts and his need to leave China because of these events. The applicant said he was running a [business] which was failing so he shut it down in 1995. He then said it might have been 1992 or 1993. When asked about his son’s problems he said there was a court case in 1991 or 1992. The Tribunal noted that his son was only [a teenager] at that time and that it may not accept he gave his son a large sum of money at that age. He then said it might have been 1994. He said he could not remember because he has had a [Medical condition 1]. The Tribunal asked about the details of the events. He said he was running 3 [businesses] and left his son in his wife’s care. She indulged his son who was not obedient. He did not finish his higher school studies so his mother gave him money to start a [business]. His son was then arrested because the police said he stole [the products]. The police beat his son and he had to pay bribes to have his son released. He also paid for his wife to hide. He claims his son went to prison but was released after he paid bribes. He cannot remember when this happened. He claims he came to Australia because the authorities were blackmailing him and he lost all his money. When asked about hoe he lost his money he claimed he made a bad investment in real estate and he had bad debts. When asked who he owes the money to, he said it was the real estate company. When asked about its name he indicated he could not remember. When asked about the amount he owes he said a million, a few million. He confirmed he had no difficulty obtaining a passport and departing China. When the country information from the delegate’s decision record was raised, which indicates that he may have had difficulties doing those things he said he had a friend in real estate company who pulled some strings enabling him to leave China. The Tribunal noted that this was completely new evidence that he had not mentioned previously. He indicated that the travel agency he used was owned by the real estate company and they assisted him to escape.

7. When asked why he left China but his son, who he claims had difficulties with the authorities, remained, he claimed his son had no way of getting out. He claimed that his son is still on the run in China. However he had previously told the Tribunal that he had not had contact with his son for 10 years. When asked how he knew his son was on the run, given he has not had contact with him for so long, he said his friends let his son know about his [Medical procedure 1]. The Tribunal indicated that it may find it implausible that his son is on the run from the authorities but his friends were able to find him to tell him about the applicant’s [Medical procedure 1]. The applicant indicated that he was guessing that his son is still on the run. When asked why he would leave his relatively young son if he genuinely had be incarcerated and tortured by the police, the applicant indicated before he left for Australia he got his son out of prison and his son’s crime was not that serious. The Tribunal asked, in those circumstances, why the authorities are still after him. He indicated they want his money, although he claims he has no money.

8. The Tribunal noted that the applicant had indicated in his written claims that he was a wealthy businessman who owes tax. However he had not mentioned this in his oral evidence at the hearing. He indicated that after his [Medical condition 1] he could not remember what he said. The Tribunal noted his written claims indicate he owes tax, however his oral claims are that he owes money to a real estate company. It noted the delegate’s decision record includes different particulars on this claim. The applicant merely said he did not know why he had given different evidence about this claim. 

9. The Tribunal has considered all of the applicant’s evidence about his business, debts and his son’s difficulties with the authorities. It does not accept that his [Medical condition 1] would cause his memory problems such that it explains why he first claimed that he was the victim of extortion by the police who forced him to sell his [business] and that he owed a significant sum in tax. He then told the delegate that his son was incarcerated and he had to pay bribes but he only mentioned this when prompted and did not mention tax debts. Then to the Tribunal he said he owes money to a real estate company. The Tribunal finds his evidence about these claims to be inconsistent and unpersuasive. It does not accept that his son’s difficulties with the authorities led the applicant to have to sell his business because his evidence about the dates is so inconsistent. It does not accept he owes a large amount of tax because he did not mention this at the hearing and it has formed the view that if it was the case that he could not pay significant sums in tax, such that he cannot return to China, he would have remembered this.  It has considered whether it accepts that he had difficulties with a real estate company but this evidence first came to light at the hearing. The Tribunal also finds it implausible that a travel agency associated with the real estate company would assist his departure from China if it was genuinely the case that he owed the company a large sum of money. The Tribunal accepts he may have had some financial difficulties before he left China but it is not satisfied he came to the attention of the authorities because of those difficulties. Nor is it satisfied his son is still on the run in China because he told the Tribunal that he had not had contact with his son for several years. It finds the explanation that his friends found his son unpersuasive. It has formed the view the applicant has manufactured evidence to overcome problems in other evidence he has given.

10. Overall the Tribunal is not satisfied the applicant was a failed wealthy businessman in China. It accepts he might have had a [business] which he sold before he departed China but it is not satisfied he came to the attention of the authorities because of any financial difficulties he had. It has formed the view that he has fabricated evidence that he owed a large sum of tax or a debt to a real estate company because he left China without difficulty and it does not accept a travel agency associated with one of his creditors would have facilitated his departure.

11. As the Tribunal does not accept that the applicant suffered harm in China because of financial difficulties, or that he had to pay the police bribes, or that he has significant tax debts it is satisfied he will not suffer any harm because of his financial history if he were to return to China in the reasonably foreseeable future. Given these findings the Tribunal is not satisfied there is a real risk that the applicant will suffer significant harm from creditors, the police or other authorities if he is returned to China because of financial difficulties or debts or tax owed.

    Ill health claims

12. The applicant has provided medical evidence that he has had [a medical condition] and had [Medical procedure 1] in Australia in 2005. He also had a [different medical condition 1] in 2013 which required a [specified treatment]. His medical evidence records that he has had a long history of [a certain condition], and associated [symptoms], however he told the Tribunal that he has now [experienced some improvement in this condition]. This was after a fall in June 2016 when he had to undergo surgery to [treat a particular symptom]. There is also a psychological report dated April 2012 confirming he had [Medical condition 2]. The psychologist records that he was unable to return to China when his father passed away in 2005 because he was struggling with bad health. She formed the view his uncertain immigration status has exacerbated his psychological condition. He takes numerous medications for his various medical conditions.

13. The applicant wore a [medical device] to the hearing. However none of his medical evidence indicated he was required to wear [it]. He provided evidence from [an official] at a hospital in China dated April 2012 stating that the hospital could not facilitate his requirement for [Medical procedure 1]. The Tribunal notes he had this surgery in Australia in 2005. His most recent medical evidence from his Australian [specialist] dated February 2015 indicates that his [status] is stable. The doctor noted that his medication regime was difficult to manage because of [the certain condition] but the applicant told the Tribunal he has now [experienced some improvement in this condition]. His doctors have opined that he would not receive optimum medical care in China however they do not site country information on which they base this opinion. His general practitioner wrote a letter in February 2015 claiming the applicant was not well enough to travel by air. The Tribunal notes this evidence is now 2 years old. The applicant gave to the Tribunal new medical evidence at the hearing however the most recent evidence dated September 2016 does not indicate that he is unfit to travel. His witness [Ms A], his former employer and friend, said she has supported him and been involved in arranging his medical care.

14. The Tribunal raised with the applicant the country information referred to in the delegate’s decision record which notes that the Chinese Constitution states that every citizen has a right to material assistance from the state when they are old, ill or disabled. It confirms that the majority of health care is provided by the public system. When this was put to him the applicant indicated that he believes that medical care in China is not free. He indicated he has no intention of returning to China and that he intends to die here. He indicated that if he wanted to go back he would have done so already.

15. The Tribunal accepts that the applicant required [Medical procedure 1] in 2005, and that he had a [Medical condition 1] in 2013. It also accepts he required medical treatment after a fall in June 2016. It accepts he suffers from [Medical condition 2] and has [symptoms] associated with [this certain condition] however he has told the Tribunal that he has [experienced some improvement with this condition]. His most recent medical evidence suggests his conditions are stable and managed with [medications]. The Tribunal notes that his treating doctors believe he will not receive optimum medical care in China. The delegate however included in her decision record country information indicating that Chinese citizens, when they are old, ill or disabled, have the right to material assistance from the state. That information also indicates that about 90% of emergency and inpatient services are provided by the public system and that the government was in the process of improving the accessibility, quality and efficiency of the health care system. The applicant has not provided country information demonstrating that he will not have access to medical care if he were to return to China because of his particular conditions. The Tribunal accepts that it may be the case that China’s public health care system is not at the same standard as that of Australia. However it is not satisfied that any inadequacy of China’s health care system or difficulty in obtaining medication meets the definition of significant harm. There is nothing in the evidence to indicate that the Chinese Government will arbitrarily refuse him medical treatment or that it has arbitrarily limited treatment for people with his medical conditions, such that it could be said that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to China there is a real risk that he will be arbitrarily deprived of his life. The definitions of 'torture' and 'cruel or inhuman treatment or punishment' in s.5(1) of the Act require that pain or suffering be 'intentionally inflicted' on a person and the definition of 'degrading treatment or punishment' requires that the relevant act or omission be 'intended to cause' extreme humiliation. The Tribunal does not accept on the evidence before it that there is the intention to inflict pain or suffering or to cause extreme humiliation to people suffering from his medical conditions. The Tribunal does not accept on the evidence before it that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm as defined as a result of his medical conditions.

    Lack of support in China

16. The applicant told the Tribunal that he could not return to China because he does not have relatives to support him and he has no money for food or medication. However when asked at other times during the hearing he indicated he continues to be in contact with his elderly mother who lives in Guangdong city. He also stated that his friends in China made contact with his son to let him know about his [medical procedure]. He admitted to the Tribunal that he continues to have contact with his friends in China. The Tribunal notes that he described his relationship status as ‘married’ in his visa application, to a woman who resides in China. His psychologist reports that his marriage broke down before he left China. He told the Tribunal the marriage has ended. The Tribunal is mindful that the applicant has been in Australia for 17 years now and it is satisfied that, if his relationship with his wife had not ended before he left China, it is unlikely that the parties will have maintained a spouse relationship by distance since 2000. His visa application also includes particulars of his [siblings] in China. The Tribunal has concerns that the applicant has not been honest in his oral evidence at the hearing about his contact with relatives and friends in China. It raised its concern about his credibility at various times. It is concerned his evidence that he has no relatives in China to support him is embellished and self-serving. It is satisfied he remains in contact with some relatives and friends in China and that he will not be destitute if he were to return in the foreseeable future. It also notes the applicant has significant support here in Australia including from [Ms A] and if has formed the view that support will continue in some form even if he were returned to China. The Tribunal is not satisfied the applicant will be arbitrarily deprived of his life as a consequence of being removed from Australia to China. The Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm because of a lack of support or financial resources.

1. Having regard to the findings above, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment, or that he will be subjected to degrading treatment or punishment as defined. Accordingly the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm. The Tribunal finds, therefore, that the applicant does not satisfy the criterion set out in s.36(2)(aa).

2. The applicant was emphatic that he will not go back to China. He told the Tribunal that he hopes the Minister sympathises with his situation and allows him to remain in Australia for the rest of his life. [Ms A] told the Tribunal that he was hurt in China and he will be happy to know that he can die in Australia. The Tribunal accepts that he enjoys significant support from [Ms A] and his church community. It accepts that returning to China may be difficult and challenging for the applicant, given he has resided in Australia for the last 17 years and that he has medical conditions the management of which is being facilitated by the support he receives here. The delegate’s decision record states that the applicant has previously approached the Minister, in 2000 and 2012, but his requests for intervention were either not referred or not considered. Since then he has had [Medical condition 1]. The Tribunal notes that the applicant has the support of his church community and it is satisfied that they will assist him with the process if he decides to approach the Minister seeking his intervention. He did not directly ask the Tribunal to do this on his behalf.

3. 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

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

   Denise Connolly

   Member

   ATTACHMENT – RELEVANT LAW

   In accordance with section 65 of the Migration Act 1958 (the Act), the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 (the Regulations) have been satisfied. The criteria for the grant of a Protection (Class XA) visa are set out in section 36 of the Act and Part 866 of Schedule 2 to the Regulations. Subsection 36(2) of the Act provides that:

   ‘(2)  A criterion for a protection visa is that the applicant for the visa is:

   (a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

   (aa)a non citizen in Australia (other than a non citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non citizen being removed from Australia to a receiving country, there is a real risk that the non citizen will suffer significant harm; or

   (b)a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (a); and

   (ii)holds a protection visa; or

   (c)a non citizen in Australia who is a member of the same family unit as a non citizen who:

   (i)is mentioned in paragraph (aa); and

   (ii)holds a protection visa.’

   Complementary protection criterion

   The complementary protection criterion is set out in paragraph 36(2)(aa) of the Act. A person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’.  The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in subsection 5(1) of the Act.