1507105 (Refugee)

[2015] AATA 3341

1507105 (Refugee) [2015] AATA 3341 (25 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1507105

COUNTRY OF REFERENCE:                  China

MEMBER:Susan Pinto

DATE:25 August 2015

PLACE OF DECISION:  Sydney

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

Statement made on 25 August 2015 at 5:07pm

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

BACKGROUND AND APPLICATION FOR REVIEW

1. The applicant is a citizen of China. He is aged in his early [age]. He is married with [children]. His wife and children remain in China. The applicant was granted a Subclass 600 (Visitor) visa [in] January 2014 and arrived in Australia on that visa [in] March 2014. He departed Australia for China [in] March 2014 and returned to Australia [in] July 2014. He departed Australia for [Country 1 in] September 2014, returning [in] September 2014. The applicant was questioned upon his arrival in Australia and he was found not to be a genuine visitor. The applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) under s.116 of the Migration Act 1958 (the Act). The applicant was not immigration cleared. During an interview with an officer of the Department at the airport, the applicant stated that he wished to apply for a Protection visa. His Visitor visa was then cancelled under s.116(1)(g) and r.2.43(l)(j)(i) as a non genuine visitor. He was subsequently detained under s.189(1) of the Act at [an] Immigration Detention Centre. The applicant has remained in detention.

2. The applicant applied to the Department of Immigration for the Protection visa [in] September 2014. The applicant essentially claimed that due to his work as a police officer in China he is aware of confidential information. The applicant claims that the authorities are concerned he will disclose this information and will seek to harm him upon his return to China. The applicant also claims that he fled China because he refused to be involved in suppressing protests by the Uighur people in Xin Xiang province.

3. The delegate of the Minister for Immigration refused to grant the Protection visa [in] May 2015.[1] The delegate accepted that the applicant was employed as a police officer in China, but found that his last position within the Police Force was in [a certain section] and he had resigned from the Police Force in 2012 and since that time had obtained a passport and been able to travel outside of China, where he had returned following his first arrival in Australia in March 2014. The delegate did not accept any of the applicant’s claims to be of interest to the Chinese authorities. 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).

   [1] The delegate found that the recent legislative amendments meant that the applicant’s application was taken not to be a valid application for a Protection visa and considered him against the criteria for a Temporary Protection visa.

4. A summary of the relevant law is set out in an attachment to this decision. The issues in this 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, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to China, there is a real risk that they will suffer significant harm. The Tribunal must consider, therefore, whether the applicant has a well founded fear of persecution. If the Tribunal is not satisfied that the applicant has a well founded fear of persecution, the Tribunal must consider whether there are substantial grounds for believing that as a necessary and foreseeable consequence of them being removed from Australia that there is a real risk that they will suffer significant harm.

   CLAIMS AND EVIDENCE

   Application to the Department

5. The applicant stated on the application form that he is from Guangxi province in China. He provided a copy of his passport to the Department indicating that it was issued in Guangxi in [2010]. He stated that he speaks, reads and writes Mandarin. He referred on the application form to visits to [Country 2 and other countries]. He stated that he attended [a] University between July [year] and July [year]. He stated that he was a police [officer] with the [Police], earning 4,000 yuan per month, prior to his departure from China.

6. In a statutory declaration, dated 17 November 2014, the applicant states that he is from Guangxi in China. He states that he and his wife were married [in] December 2001 and he has a [age] year old [child]. He states that his wife is currently [pregnant]. The applicant states that in [year] he was a student at [a] University. He studied [a certain course]. He graduated in [year] and began working as a policeman in July [year]. During this period, he worked for three different branches of police stations in Guangxi [Province]. His duties were [in a certain] department where he saw all documents which contained information on how the police collected information, monitor suspect people or groups and prevent any activities the Communist’s suspect. They target people especially democrats, petitioners, religious groups, Falun Gong, minority nationalities, overseas returnees, former militaries, ex-convicts, journalists and news reporters. The applicant refers to the different methods the police have of obtaining information. The applicant states that once the police have reported the suspects to the department, they will be arrested and interrogated in order to obtain information.

7. The applicant states that from [year] to he was the head of the Local Police and handled [certain] matters in the police force. The applicant saw people disappear after being arrested by the Security Department. He saw many torture methods and in about 2009 he decided he did not want to be part of them. The government wanted to reclaim land in [a] Country in [a] City and secretly arrested farmers. He showed an unwillingness to participate and his employer was unhappy. He sought a transfer to [a certain section] in 2009. His job was to maintain [safety] and prevent certain people from going into the city. For example, they had to assist police in preventing veterans from returning from wars from paying their respects at memorial services or going toward the border between China and Vietnam. The government feared that the veterans may know how to fight and “show unsatisfactory behaviour” towards the government. On one occasion, the government ordered them to intercept vehicles from Sinkiang. The Sinkiang people were then taken by the other police. They did not allow people from Sinkiang and Tibet to enter the Han areas as they will demand independence and organise activities. The government also often considered the activities of farmers as an act of rebellion and anti riot police were called in. The applicant referred to this occurring in 2010 and 2011. The applicant also referred to migrant workers who came out of their village to work in [that] city and were not paid, and later presented a petition. The workers were shot with plastic bullets and some were injured and a number were arrested. The applicant states that he is a marksman in the Public Security Bureau. Although he did not ever shoot people he had to hold a gun except when he was working in [that] section.

8. [In] July 2014, the applicant’s employer told him he intended to send him to Sinkiang to suppress Uighur uprisings. They were told to shoot and kill all the disobedient Uighurs. He told them his wife was pregnant and wanted to stay and look after her. They said that this was a matter of disloyalty. The applicant did not want to be involved and left China secretly. He left a resignation letter with his wife which stated that he had been a policeman for [number] years. He made no mistakes and had been a loyal officer. He was tired of those positions and felt he could no longer be part of it. As a member of the Communist Party he felt a lot of political pressure and he also resigned from the Party. His wife handed his letter into the head of the Department [in] August 2014. The police then sent [a departmental head] to question his wife three times. The Head of the Department told the applicant’s wife that his resignation was not accepted and he should return to China as soon as possible “otherwise they will send [name deleted] for a Disciplinary Session” if he did not return. They also asked his wife whether he had taken any confidential material out of China and because they had tracked his immigration records they asked where he was in Australia. The applicant’s wife was told that he would be charged with defecting from China and put on a wanted list. They charge people with defecting when a person who is a member of the Communist party leaves China without permission and seeks another country’s protection. The applicant is now wanted by the local police in Guangxi because the government thinks he is a “betrayer”. If he was deported back to China he would be immediately arrested at the airport and would face severe punishment. The applicant would also be denied legal representation and tortured until he confesses. The applicant will also be accused of being a political traitor.

9. The applicant states that as a former policeman he is worried that false cases will be levied against him, for example for bribery. The applicant knows that he will be placed into custody with prisoners whom he has arrested in the past which will place him in great danger. The local police are stalking his wife and have bugged his family’s telephone calls, internet, chatting software and e-mails. He knows that the police has searched his family’s home and installed listening devices. After he resigned, his [brother] was put on an internal wanted list and so were his wife’s [cousins]. His wife is an only child and is close to her [cousins]. Her young cousin was arrested by police and framed for corruption in August 2014. He remains in interrogation and does not have a lawyer to assist him with his case. The applicant’s brother went to [Country 3] and heard that he was on a wanted list and has not returned to China. His assets have been frozen in China. The applicant is a shareholder in [a] business which belongs to his wife’s cousin. They are both in hiding from the police and no-one is running the business. He is worried that the police will try to interfere with their business interests. The applicant believes that they are intimidating and arresting his family because he knows a lot of secrets and they want to use him as an example to warn others. He states that the information he has provided shows the methods regularly used by the Public Security Bureau in China. The applciant states that he has no criminal record and he has not committed crimes against humanity. He left the PSB before he was sent to Sinkian. He is on an Internal Wanted list.

10. The applicant provided several documents to the Department, including articles in Chinese characters, one of which he states is an article from a [Country 3] newspaper detailing police interrogation and brutality and an official who was “interrogated to death”. The applicant also provided other articles in relation to incidents of police brutality. The applicant’s representative advised the Department that the documents could not be translated due to the cost but that they relate to a [Chinese] official dying after being brutally interrogated; a sentencing parade being held in Hunan Province; a young man wrongly charged with rape who later died; and an article stating that lawyers should have allegiance to the CCP.

11. The applicant’s representative subsequently provided a document received [in] November 2014 “purporting to be a Notice published by the Public Security Bureau” in respect of the applicant; and a translated copy of a document “which we understand to be an arrest warrant in relation to a member of [the applicant]’s family in which falsified charges are levelled.

12. The report by the PSB “notice on Assistance to Contact Comrade [applicant name]” states that the applicant, [from] [a certain division] of [the] city’s Public Security Bureau, left his work position without authorisation [in August] and the division has tried all means to contact him without success. It is “hereby announced that your assistance is requested to contact Comrade [applicant name] to ask him to report to the political work Department before [date] September 2014. The document is dated [in] September 2014. A further document, titled “Information System of the Wanted People” refers to [a certain person] and states that he paid [police from a certain section] [amount] yuan to bribe [them].

13. Copies of the applicant’s marriage certificate and identity documents relating to his wife were also provided to the Department.

14. The applicant’s representative also provided the United States Department of State Report on China for 2013, and refers the delegate to particular pages of the report. Also provided were copies of decisions by the Refugee Review Tribunal (RRT) and it is submitted that the applicant’s concerns appear to be “objectively corroborated in Western sources”. The representative refers to the two decisions of the RRT, one of which discusses the monitoring of overseas dissidents and the other which refers to a Falun Gong practitioner. The representative also provided the Amnesty International Annual Report on China for 2013; and an article relating to the detention of an ex-police officer for protesting at the trial of an activist. The report states that this is an example of how whistle blowers can be treated and how “swiftly people who never contemplated challenging authority can find themselves on the other side of the system”.

15. The applicant was interviewed by an officer of the Department [in] December 2014. The Tribunal has listened to the CD Rom recording of the interview and is satisfied that the summary as set out in the decision record is accurate.

16. Following the Department interview, the applicant’s representative provided a submission, dated 20 December 2014. The representative submits that during a lengthy interview, which lasted from 10.00am until 4.15pm, the applicant was fundamentally consistent with his written statement of claim his statutory declaration of 17 November 2014 and this was the case “notwithstanding the frequent and robust questioning by the case officer”. The applicant showed a “forensic knowledge” of the police force, his positions within it, the oath he was required to take in connection with his service; weapons; police intelligence systems, mechanisms for monitoring citizens, and other issues synonymous with employment as a police officer. The applicant has also provided copies of his police identity cards for the periods between [year] and [year] and between [year] and [year].

    Application for review

17. When lodging the application to the Tribunal, the representative provided a copy of the delegate’s decision record.

18. The applicant appeared before the Tribunal on 23 July 2015 and 13 August 2015 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by his registered migration agent. The representative provided submissions at the conclusion of the hearing on 13 August 2015. The applicant’s evidence and the submissions are discussed in further detail below. 

19. At the request of the Tribunal, the representative provided copies of the documentation provided to the Department (unavailable at that time), and provided additional material relating to the National Security Law passed by China’s National legislature on 1 July 2015. This includes an article on “China Adopts Sweeping National Security law”; “The implications of China’s New Security Law” and “China’s New Security Law hints at Communist Party fears”. The reports indicate that the legislation is aimed at tackling “perceived threats from sources as diverse as the Internet, culture, education and “outer space”. The reports also indicate that the legislation empowers the State to “take all necessary measures” to protect its sovereignty and calls for vigilance and defence against “bad cultural influences” malignant groups and criminal activities under the guise of religion and warns of interference of foreign powers in internal affairs. It also calls for tougher management of the Internet, including measures to prevent the spread of illegal or harmful information.

20. Additional documentation provided to the Tribunal included a May 2015 report by the Edmund Rice Centre which discusses concern by refugee groups about increasing numbers of Chinese nationals who have failed the refugee determination process in Australia and the treatment of those persons upon their return. The report refers to the treatment of “Mr Zhang” and “Mr S” who were mistreated after seeing asylum in Australia. The report indicates that Mr S and his family later disappeared. Other reports on the Chinese Communist Party, the “610 Office”; a Human Rights Commission report on Violence during demonstrations in the Tibet Autonomous Region; ‘Chinese Police Shoot Protesting Construction Workers”; China” Riot Against Land Acquisition in Guangxi. Reports by the Chinese Human Rights Defenders from 2008; news articles on Torture claims by a Chinese politician who launched an attack on organised crime; policemen to face trial for alleged torture under the organised crime crackdown; and 2009 reports on Asylum Seekers interrogated by Chinse Officials in May 2005; and reports on the Chinse spy network in Australia, including claims made by a high profile defector, Chen Yonglin, a diploma in Sydney who sought asylum in 2005 who has claimed that Beijing has more than 1,000 agents in Australia alone who kidnapped some people and repatriated them for political reasons. The reports also discuss the case of a second Chinese defector, Mr Hao Feng Jun.

21. Additional documents provided at the hearing included decisions of the RRT and Federal Court of Australia.

    ASSESSMENT OF CLAIMS AND EVIDENCE

    Does the applicant have a well founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention?

22. As stated above, the Tribunal must consider whether the applicant has a well founded fear of persecution in China for one or more of the five Convention reasons. In this matter, it has been claimed that the applicant is imputed with a political opinion and will be harmed as a result of his resignation as a police officer and his knowledge of information relating to abuses conducted by the police.  It has been submitted that he is regarded as a “betrayer” and that the provisions of the Criminal Law can be levelled against him for defection and because he is regarded as a traitor who has endangered China’s public security.

23. Having considered all of the evidence, the Tribunal does not accept that the applicant is a truthful witness. The Tribunal has had regard to the numerous submissions and documents provided to the Department and the Tribunal. The Tribunal accepts the applicant was previously employed as a police officer and as such that he was privy to the methods used by the Chinese police and State to torture, interrogate and obtain information, and that he is aware of the considerable human rights abuses undertaken by the Chinese state to suppress persons whom it considers dissidents. The Tribunal considers that much of this information is well known, as evidenced by the discussion of it in the numerous documents provided to the Tribunal, as well as in the sources regularly consulted by the Tribunal regarding the People’s Republic of China,[2] particularly those in relation to the mistreatment of Uighurs and those involved in protests regarding land confiscation.[3] The Tribunal accepts that when he was employed in other divisions of the police force, prior to his deployment to [a certain] section, that he had access to sensitive information. The Tribunal does not accept that the applicant has continued to have access to “secretive information” or that he has disclosed any secretive information or that there are any concerns by the Chinese government that he has done so. The Tribunal considers that the only aspect of the applicant’s claims that is truthful is that he was once employed as a policeman in China. The Tribunal considers that the applicant has attempted to manufacture a set of claims for protection around his employment as a police officer in China, employment which ceased in 2012, which was some two years before he arrived in Australia. The Tribunal does not accept that the applicant genuinely fears harm in China for the reasons he has claimed and considers that he has fabricated the entirety of his claims to have resigned in 2014 due to his refusal to be involved in suppressing the Uighur population and his claims that he and family members have subsequently been interrogated and threatened and false charges laid against his family member. The Tribunal’s consideration of the evidence and its reasons for reaching these conclusions follows.

    The applicant’s employment

    [2] The Department of Foreign Affairs and Trade 2015, Country Report: China, 3 March discusses the human rights framework in China and states that although the Chinese Constitution provides for freedom of the press, assembly, association, religious beliefs and preserves and respects human rights in practice these freedoms are “significantly curtailed”.

    [3] The Department of Foreign Affairs and Trade 2015, Country Report: China, 3 March, p,8 and p.11.

1. The Tribunal firstly considers that the evidence indicating that the applicant had ceased his employment as a police officer some two years before he was interviewed in September 2014 at [an Australian] airport casts considerable doubt on the entirety of his claims. As indicated above, the applicant was questioned at [the Australian] airport upon his return from [Country 1] in September 2014. The delegate’s decision record also indicates that the applicant had documentation with him which showed he was employed in a full time capacity as [an occupation] of [a] company. When asked about this issue at the hearing, and asked why he had told the authorities when he arrived at [the] airport that he had not worked as a policeman for two years, the applicant stated that when he was asked that question he was extremely scared “inside and deep in my heart”. The applicant though his identity as a police officer had been revealed and he would be arrested and deported and he cannot return to China. The Tribunal advised the applicant that his claims for protection are based on his employment as a police officer and queried why he would have said he had ceased his employment as a police officer two years earlier. The applicant stated that he was “thinking” to restore his visitor visa to avoid making a Protection visa application so as not to “provoke” the Chinese government. He was also worried that his identity as a police officer had been revealed so he was so worried about providing any details of this employment. When again advised that he had made claims for protection based on being a police officer and it is difficult to understand why he would not have wished to disclose this information, the applicant stated that he did not want to provoke the Chinese government. The applicant stated that to make an application for protection is to declare “war” on the Chinese government. When advised that the process of applying for protection is confidential and the Chinese government is well aware that thousands of Chinese citizens apply for protection, the applicant stated that his situation is “different” and for him the death penalty can apply. The applicant stated that this is because he participated in “secret agent” activities in the police force. According to the criminal law he can be punished under the name of treason and for leaking national secrets, even though he has not in fact leaked any information. The applicant has also claimed that he was very scared that the Australian authorities would cancel his Visitor visa and deport him.

2. When asked by the Tribunal about his capacity in the [company], the applicant stated that it was a “part time” position company and he was a [occupation]. He had no fixed working hours as it was a family business. When asked if he had advised the Police Force in China that he was the [occupation] of the company, the applicant confirmed that he had not, although he had been [occupation] since 2012. When asked why he had not resigned from the police force at an earlier time if he had the position as [occupation] in the family company, the applicant stated that even though he did not like it he needed to maintain a stable job to sustain his life because in China “to do business” there is always a risk and during the financial crisis many businesses were bankrupted. The applicant stated that “to be a public servant is a stable position” and when he applied for a Visitor visa he stated on the application form that he was full time because he could not apply for a visa based on his position as a police officer. When asked why he could not do so, given that the police force would have known he was travelling in and out of China, the applicant stated that they did not know and if they did not carry out a specific investigation on him they did not know he had travelled and they only knew he had leave from work. In response to the comments that he had obtained a passport in 2010 which indicates they were not concerned about him travelling in and out of China, and there is no evidence that police officers are unable to travel in and out of China, the applicant stated that the destination country would be “very sensitive” to providing visas for police officers. The police station will not permit people to leave China and the tour group will ask for permission.

3. The representative submitted that the applicant had travelled previously to different countries using his status with the [company] because he did not wish to show that he was a police officer as he wished to conceal this information. It was submitted that if the applicant’s fears were not genuine he could have travelled to Australia as a police officer, rather than concealing this information.

4. The Tribunal does not accept the applicant’s explanation for why he told the officers at [the Australian] airport in September 2014 that he had resigned from the police force two years earlier. As discussed during the hearing, the applicant’s claims for protection are based on his employment as a police officer. The Tribunal considers that the applicant’s explanation for why he would advise officers at the airport that he had not been a police officer for two years is not credible and indicative of the fact that the explanation has been manufactured in an attempt to establish that he was a police officer until the time of his departure. The Tribunal also does not accept the submission that the applicant’s fears are genuine as established by the fact that he did not travel using his status as a police officer. The Tribunal considers that the applicant did not declare his employment as a police officer when travelling to Australia because he was not in fact a police officer at that time. The Tribunal does not accept that the applicant travelled using his status as [occupation] because he wanted to conceal his status as a police officer or because he would have restrictions on his ability to obtain a visa. The Tribunal considers that the applicant travelled as [occupation] of a company because he was in fact employed in that capacity and had been since 2012. The Tribunal does not accept that the applicant was working both for the [company] and the Police Force. The Tribunal does not accept the applicant’s explanation for why he considered that he could not obtain a visa as a police officer, a government employee who would have superannuation, insurance and other entitlements attached to that employment. The applicant obtained a passport to travel outside of China in 2010 and he had since that time travelled to various different countries. The Tribunal considers that this is indicative of the fact that the applicant was free to travel outside of China and he did so without restrictions.

5. The Tribunal accepts that the applicant was recruited to the police force because he was an “exemplary student” and he worked for different police stations, and finally as a supervisor with [a certain] Department in [a certain] section. The Tribunal also accepts that the police identification document is genuine. However, although one of the identity documents was issued in [year] and valid until [year] the Tribunal does not accept that this establishes he was employed beyond 2012. Thus, although the Tribunal accepts that the applicant exhibited a good understanding of the police force when he was interviewed, the Tribunal considers that this is because he was previously employed as a police officer, but ceased this employment in 2012.

   The credibility of the applicant’s claims

6. The Tribunal considers that in addition to the above, that various other aspects of the applicant’s claims lack credibility. Firstly, the Tribunal considers it not credible that the applicant, who had been a [police] officer in a different province since 2009, would be issued with a directive to travel to Sinkiang in 2014, which he told the Tribunal is about 5 to 6 hours by plane from his own province. When this issue was discussed during the hearing, the applicant stated that China is “centralised” and in order to suppress the Uighurs they sent people from everywhere because “some of the job could not be done by local police”. The applicant told the Tribunal that in Xinjiang it is very difficult for the local policemen to shoot the people because their families know each other, and he had been to Xinjiang in 2001 or 2002 and was familiar with the situation, and part of his role would be to direct people away from the area and control the [situation] whilst suppressing the Uighurs. During a lengthy oral submission during the hearing, the representative referred to the applicant’s previous travel to the Uighur province and submitted that it is not unusual in Australia for officials to be transferred to different places. For example, officials of the Department travel throughout Australia and Australian Federal Police are often seconded to different parts of the country. The representative also submitted that in China the police force is centralised and police officers in one province can be deployed to other provinces.

7. The Tribunal has had regard to the applicant’s claims as to why a [policeman from a certain section] would be sent to Xinjiang, some 5 to 6 hours away from his home region. The Tribunal accepts that China is a centralised government and the police force differs from that in Australia. However, the Tribunal does not accept that the Chinese authorities would consider it necessary to send a [policeman] who had been a supervisor in that section since 2009 to suppress Uighurs. The Tribunal does not accept that the police in China, which is notorious for human rights abuses against the Uighur population,[4] would decide to not involve police from Xinjiang because they may know the families of those involved. The Tribunal considers that this is not credible, and whilst the Tribunal accepts that it is not unusual for persons to be required to travel to various places for employment purposes, the Tribunal does not accept the applicant’s explanation for why he would have been required to undergo training to be deployed to an entirely different province to be involved in the suppression of Uighurs. The Tribunal considers, in conjunction with his initial evidence during the Airport interview, indicating he was not a policeman in 2014, and further concerns discussed below, that the applicant was not asked to go to Xinjiang to suppress Uighurs and this claim has been fabricated in order to establish claims for protection in Australia.

   [4] The Department of Foreign Affairs and Trade 2015, Country Report: China, 3 March, p,8 to 9.

8. In addition to the above, the Tribunal considers that the applicant’s abrupt departure from China, leaving his pregnant wife to deal with his resignation which he suspected would infuriate the authorities, is not credible. The applicant’s evidence during the hearing was that [in] July 2014 he was asked to go to Xinjiang and decided that he should leave China. He was able to do so such a short time later, such that he had arrived in Australia [some days later in] July 2014. When asked at the hearing why he was able to do so in such a short space of time, the applicant told the Tribunal that he was able to organise his travel so quickly because he held a Visitor visa for Australia and he simply went to the airport and bought his ticket. When asked whether he attempted to make any other plans for avoiding travelling to Xin Xiang, the applicant indicated that he did not as the decision had been made. The applicant stated that his employer told him he would be travelling to Xin Xiang for his employment and people should prepare for training [in] August 2014. When advised that it appeared to have been at its preliminary planning stages at that time and queried why he left immediately, leaving his pregnant wife to deal with his resignation and departure, the applicant stated that he had to leave as soon as possible, otherwise he was frightened his name would be put on a black list. The applicant also did not realise there would be the significant ramifications for his family. The applicant stated that he held on to the “illusion” that nobody would be harmed and it was an “ordinary resignation”.  The representative subsequently submitted that although the Tribunal expressed concerns that he would leave his pregnant wife and leave China so soon after being asked to travel to Jin Xiang, the applicant had “crippling choices” and felt that he had no choice but to leave his wife to tender his resignation. The applicant has claimed that the choice was between his “hand” or his “head” and his evidence shows that he was strongly opposed to his involvement in the oppression of Uighurs.

9. The Tribunal does not accept the applicant’s explanation for why left China some three to four days after he was purportedly asked to go to Xinjiang to suppress Uighurs. The applicant’s evidence to the Tribunal was that at that time he had only been told to participate in training [in] August 2014 and, as discussed during the hearing, this indicates that the preparations for persons to be deployed to Xinjiang were in their preliminary stages. The Tribunal does not accept that the situation would at that time have been such that it necessitated the applicant almost immediately making a decision to flee China and going to the airport to purchase a ticket to leave China. The Tribunal further considers that the applicant’s evidence does not indicate that he made any other plans or attempts to avoid going to Xinjiang and that he immediately decided that the only way of dealing with the situation was to flee China, leaving his pregnant wife to tender his resignation. The Tribunal accepts the applicant’s evidence that the police force in China operates significantly more rigidly than in Australia, but does not accept that he would have had no other options for at least attempting to avoid deployment to Xinjiang, apart from relying on his wife’s pregnancy. Additionally, although the applicant claimed that he did not consider there were would be such serious ramifications, his evidence was that he had to leave urgently to avoid being placed on a watch list. The Tribunal considers it not credible that the applicant would leave his pregnant wife to tender his resignation and flee China for Australia because he had to avoid being placed on a watch list, but at the same time consider that this would not have serious ramifications for his family. The Tribunal considers that the applicant’s evidence in relation to this issue is confused and inconsistent and indicative of the fact that it has been fabricated.   

10. In addition to the above, the Tribunal considers that the evidence indicates that the applicant was exploring options for leaving China from March 2014, some months before he claims to have been required to suppress Uighurs in Xinjiang, and that rather than fleeing China for Australia in July 2014 that he had planned to return to Australia at that time. The applicant confirmed during the hearing that he first visited Australia in March 2014 to visit friends and he was also considering options for his [child]’s study in Australia or [Country 1]. The applicant confirmed that he returned to Australia in July [2014] and in September he travelled to [Country 1] to consider schools for his [child] as he had been advised that [his child] was too young to obtain a Student visa for Australia. When asked why he had not applied for protection during those [days], the applicant stated that he wanted to have a “peaceful life” and be joined in Australia by his family so he thought he could obtain a Student Guardian visa which would mean he would not have to return to China. The Tribunal commented that a Student Guardian visa is a temporary visa and queried why he would have considered such an application. The applicant stated that his [child] was too young to study in Australia, but he found out that [his child] could study in [Country 1]. He had also contacted a lawyer who dealt with Protection visas, but he considered that this was a “last resort”. When advised that the agent would have told him the Student Guardian visa is a temporary visa which would not allow him to stay in Australia permanently, the applicant stated that he understood, but if his [child] was able to study for 10 years he could later make the “next step”. The applicant referred to a person who obtained protection in Australia but his wife and [child] were stopped coming and could no longer have a promising future. The applicant stated that political asylum is a “dead end” because it means a declaration of “war” against the Chinese communist party and this will bring “disaster” to me and “I dare not provoke them”.  The applicant also referred to the leaks by the Australian authorities in relation to people who had applied for protection and allowed the Chinese Embassy officials into the Detention Centre. The applicant also claimed that his confidence with the Australian government is “not strong”. When asked why he would come to Australia if he did not have confidence with the Australian government, the applicant stated he had thought about it but [in] July “something urgent” happened and he was only able to obtain an Australian visa. When the customs officers decided to cancel his visitor visa he immediately applied for protection. When asked why he waited until his visa was cancelled before he made the claim, the applicant again referred to not provoking the Chinese government otherwise he would lose the opportunity for family reunion.

11. The representative subsequently submitted that although the applicant delayed lodging his Protection visa application as he had previously been in Australia for [number] days this delay is not “inordinate” and he has provided a credible explanation for why he delayed the lodgement of the application due to his reluctance to apply for a Protection visa which he has described it as a “one way street” and a “dead end”. The representative submitted that the applicant’s concerns are not “academic” as due to his experience as a police officer he is only too aware of the serious actions that can be taken by the State in relation to persons who oppose them. The applicant was also concerned about the trade relationships between Australia and China and the willingness of the Chinese government to exert influence on the Australians. The representative referred to the case of the former Chinese diplomat whose family had been excluded from leaving China after he defected whilst in Australia, and the criticisms made of the handling of that matter by a Senate inquiry. The representative further submitted that Chinese embassy staff were granted access to speak with political dissidents at [a detention centre] and although the applicant concedes that he was planning on going to [Country 4] he was doing so only because it has a “stronger” system of protection.

12. The representative further submitted that the Tribunal had commented that the “side trip” he made to [Country 1] was not indicative of someone fearing harm in their own country. However, it is indicative of the fact that the applicant considered applying for protection as a “last resort” and this is consistent with the explanation he gave that he contacted a migration agent in Australia and explored his options for lodging a Protection visa application. On the day he returned to [Australia] from [Country 1] he realised he had no other option but to seek Australia’s protection because he felt that he was being followed in [Country 1]. The representative referred to the applicant’s previous travel, but submitted that prior to August 2014 he did not have the need to leave China and it was only because of the incidents in July 2013 that he had to use his Visitor visa to return to Australia. The representative also submitted that the case officer expressed surprise during the interview that the applicant had not put on the record at the earliest opportunity when interviewed at [the] Airport [in] September 2014 that he was seeking protection. The representative submits that the applicant put on record [in] September 2014 that he was seeking protection and he referred to the birth of his second child and his wife would have [a procedure]. The representative submits that far from not mentioning his concerns relating to his protection visa application that these “loomed large” during his Airport Screening Interview and are consistent with his statutory declaration of 17 November 2014 and his oral interview [in] December 2014. The applicant has also explained that he had reservations about seeking asylum in Australia because of the trade relationship between China and Australia and because Chinese officials were permitted in 2005 to interview political dissidents at [a] Detention Centre. It is further submitted that the fact he mentioned [Country 4] during his interview shows “his desperation to get out of China” and he was concerned about applying for protection as it is a “one way street”. The applicant was also upset at various times during the interview and the decision maker was forced to suspend the interview. It is submitted that “these expressions of emotion were heartfelt and emblematic of an applicant with serious concerns as to their safety and welfare”.

1. The Tribunal accepts that the applicant was exploring options for remaining in Australia by other means and that he considered lodging an application for protection was a “last resort”. The Tribunal also accepts that he would have preferred to have been granted a Student Guardian visa which would have enabled him to remain in Australia for a lengthy period whilst his [child] pursued high school studies. The Tribunal accepts that the applicant may have considered a Protection visa to be a “dead end” and it would have resulted in an inability to enable his family to join him in Australia. The Tribunal does not accept that this in any way establishes the truthfulness of the applicant’s claims regarding his experiences in China and his reasons for leaving China. The Tribunal considers it establishes only that the applicant was considering options for remaining in Australia by various means. The Tribunal considers that the evidence indicates that the applicant had come to Australia in March 2014 with the aim of considering different options for himself and possibly his family to come to Australia and he then went to [Country 1] to explore different options having realised that the Student Guardian visa would not be an option for him at that time. The Tribunal does not accept that the applicant felt that he was being followed in [Country 1] and for that reason he left after only a day. The Tribunal considers he stayed a day because he had made some inquiries as to visas. The Tribunal considers that having already considered the option of delaying or remaining in Australia by fabricating claims for protection that when his visa was subject to cancellation at [an Australian] airport [in] September 2014 he decided that his only option for obtaining residence in Australia was to lodge an application for protection.  The Tribunal considers that having considered it was his only option for remaining in Australia he has fabricated a set of claims attached to his application for protection, based on the fact that he was previously employed as a policeman in China who refused to undertake specific tasks and purportedly has knowledge and secretive information and will be considered as a defector.  

2. The Tribunal accepts the submission that the applicant has been relatively consistent in relation to many aspects of his claims and he has been upset and emotional at times. The Tribunal does not accept that these factors establish that the applicant’s claims are truthful. Having considered all of the evidence, the Tribunal does not accept any of the applicant’s claims to fear harm in China. The Tribunal does not accept the notices which are purportedly from the PSB in relation to his apprehension and the “false charges” against a family member for bribing police officers [are] genuine documents. The Tribunal has had regard to the representative’s submission that the fact that China has fraudulent documentation which is readily available does not “convert to the proposition” that the applicant has provided fraudulent documents and the applicant should be given the benefit of the doubt. The Tribunal has also had regard to the submission that the documents have not been analysed by the Document Examination Unit of the Department and found to be false and it would have been a different matter if the delegate had found, for example, that the arrest warrant was not consistent with other such documents. The Tribunal accepts the submission that the availability of false documentation in China does not necessary equate to a finding that the documentation provided by the applicant is false. However, as advised during the hearing, if the Tribunal does not accept the truthfulness of the applicant’s claims this would inevitably lead to a finding that the documentation is false. Having not accepted the applicant’s claims, the Tribunal has reached this conclusion.[5] The Tribunal considers it unnecessary to undertake further inquiries in relation to the documentation provided by the applicant. The Tribunal has not accepted the applicant’s claims and have found that they have been fabricated. The Tribunal is satisfied that the documentation has also been fabricated in an attempt to substantiate the applicant’s claims for protection in Australia.

   [5] The Department of Foreign Affairs and Trade 2015, Country Report: China, 3 March, states that DFAT is aware of fraudulent documents being provided in support of visa applications and they are relatively easy to produce. DFAT has also been advised of the existence of sophisticated syndicates that service call centres set up specifically to provide targeted background stories in support of fraudulent documents – p. 21.

3. The Tribunal finds, therefore, that the applicant did not leave China because he was required to go to Sinkiang to suppress Uighurs. Although the Tribunal is prepared to accept that the applicant sought a deployment to [a certain] section after working in other areas for many years, the Tribunal does not accept he had previously opposed the orders of his supervisors or that he was of any adverse interest to the police force or the authorities more generally when he left China. The Tribunal does not accept that the applicant left China “secretly” and also does not accept that he left his wife to submit his resignation. The Tribunal is prepared to accept that the applicant resigned from the Communist Party at some time, but does not accept that he did so in 2014 when he left China for the second time. The Tribunal does not accept that there were any ramifications for the applicant in resigning from the Communist party, given that he had ceased to be a public servant by 2012. The Tribunal does not accept that the applicant was considered to have “defected” from China by leaving in July 2014 given that he had resigned from the police force two years earlier and was no longer a public servant at the time of his departure from China. The Tribunal also does not accept that he has been considered as a “betrayer” or that he is considered to have access to any secretive information arising from his former employment as a police officer. The Tribunal also does not accept that his wife has been questioned about the applicant’s departure from China or asked whether he has taken material out of China or that the authorities have “tracked” his immigration records and know he is in Australia. Nor does the Tribunal accept that the police stalked his wife and bugged his family’s home or installed listening devices, or put his family members on a wanted list. Nor does the Tribunal accept that his wife’s [relative] or any other family members were arrested by the police and framed for corruption or that his brother went to [Country 3] or that his assets have been frozen or that his [cousin] has escaped to overseas. The Tribunal does not accept that the applicant or his family are the subject of any adverse interest or attention from the Chinese authorities and does not accept any of the applicant’s family are on Internal Wanted Lists. The Tribunal finds that the applicant left China because he wished to obtain residence in Australia, or [Country 4], and that he was considering options for how he would do so. The Tribunal has accepted that lodging an application for protection was not his most desired option and he preferred to remain in Australia by other means. However, the applicant was unable to access other means of staying in Australia and to that extent when his Visitor visa was cancelled at [the] airport he has attempted to remain in Australia by lodging a Protection visa.

   The applicant’s return to China

4. The Tribunal has not accepted that the applicant was of any adverse interest to the authorities when he left China in July 2013 or that he or his family have subsequently come to the adverse interest of the applicant. However, the Tribunal has accepted that the applicant was previously employed as a police officer and has resigned from this position and from the Chinese Communist Party. The Tribunal has considered the applicant’s claims that he will be “treated cruelly” by the Chinese Communist Party because he has resigned from the police force and the Communist Party according to Chinese law he will be accused of treason. The applicant’s representative has submitted that the applicant’s resignation from the police force shows a “clear expression of his political opinion” as opposed to the authorities because the police in China are “inextricably linked” to the Chinese Communist Party. It has been submitted that the application for protection is considered an “act of war” against the Chinese authorities and as a result of this, combined with his work as a police officer, the authorities will consider that he is a traitor. His resignation from the Chinese Police Force must be seen as an expression of political opinion. This political opinion has manifested in a variety of ways, not least of which has been his opposition to the corrupt practises of the government, as well as the surveillance, suppression and persecution of groups such as farmers and minorities. The applicant’s resignation from the police force in defiance of orders to shoot and kill Uighurs is an example of his views which are contrary to the interests of the State and he is now seen as a “betrayer”. It is submitted that the applicant’s political opinion will be the essential and significant reason for the applicant’s persecution should he return to China.

5. The representative further submitted that it is “instructive” that the applicant’s family members have also been questioned and interrogated and have been the subject of surveillance, interference and harassment. The representative further submits that the applicant has described how he was an exemplary student and citizen in his youth and early years in the workforce and he has since been labelled a betrayer by the government and faces potential charges of defection. The applicant has explained in his statutory declaration and during the interview the specific legislative provisions and individuals charged with these types of offences face the harshest forms of punishment.[6] The applicant has submitted a “wanted” notice published by the police in his local province and instructs that he would be arrested immediately if he returned to China.

   [6] The representative refers in a footnote to Articles 108 and 109 of the Criminal Law of the People’s Republic of China. Article 108 refers to a defector and traitor and the terms of sentence. Article 109 refers to a state organ personnel, during the time of performing his public functions leaves his post without authorisation and defects from his country, thereby endangering the PRC’s national security, he is to be sentenced to not more than five years of imprisonment, but if the circumstances are serious he is to be sentenced to not less than five years and not more than 10 years of imprisonment.

6. As indicated above, the applicant has also claimed that he has access to sensitive and secretive information. When asked about this during the Department interview, the applicant stated that he had access to personal files that recorded the mistreatment experienced by pro democracy activists and he was assigned [a certain role] when he joined the police. He stated that although he did not keep a copy of these documents he had access to them prior to leaving China. The applicant also referred during the interview to access he had to records regarding peoples household registration and the monitoring of people who were considered to be potentially “anti-government” and these people were “heavy people” which is a term not commonly known. The applicant also stated that he has witnessed people disappearing and being tortured and although he previously had access to secret files his security classification was lowered when he went to [that] section and it was then that he was permitted to have a passport. The representative refers to the applicant’s other claims made during the initial interview [in] September 2014 that he has information about how police force people to make statements and prisoners who were tortured in April 2013 in [location]. It is the applicant’s belief that the knowledge of these activities, together with his renunciation of his role as a police officer and his Communist Party membership, makes him particularly vulnerable to persecution, The representative also refers to the applicant’s claims that his position within the police force involved access to sensitive records and files; knowledge of how police collect information; and the suppression of activities contrary to the interests of the Communist Party. It has been further submitted that the applicant has shown an opposition to the practices of the police force not only by resigning but also through expressing opposition to police practices. The applicant was previously working in [a certain] division but prior to that time he had access to sensitive information and it is his knowledge of information which is contrary to the interests of the State which makes him particularly vulnerable to persecution from the Chinese authorities.

7. The Tribunal has accepted that the applicant has resigned from the police force, but has not accepted that he did so in August 2014 as he has claimed. The Tribunal has also not accepted that the applicant has “defected” from China or that his resignation from the Police Force in 2012 has been viewed as a defection. The Tribunal does not accept that persons are unable to resign their employment from the police force in order to undertake other careers, and has not accepted that his resignation at some time from the Chinese Communist Party caused any concern or any apprehension that the applicant was somehow opposed to the interests of the Chinese state.[7] The Tribunal does not accept that the provisions of the Criminal Law of the People’s Republic of China will be used against the applicant or that he will be considered a defector or a “betrayer”. The Tribunal does not accept that his resignation from either the police force or the Communist party have been viewed as an act of political opposition and does not accept that the applicant has been imputed with an adverse political opinion due to his resignation from the police force in 2012 or as a result of his resignation from the Chinese Communist Party at some time.

   [7] Information cited by the delegate indicates that although there were difficulties at one time for persons who resigned from the Chinese Communist Party, this is no longer the case.

8. The Tribunal has found above that the applicant was involved in [details deleted] prior to his resignation from the police force in 2012, and his own evidence indicates that he had been a supervisor in this section since 2009. The Tribunal accepts that the applicant’s security clearance was higher when he was employed in other parts of the police force and it was lower when he was transferred to [a certain] section as a supervisor. The Tribunal is prepared to accept that the applicant may have had access to information regarding the mistreatment of individuals or groups and torture methods whilst he was a police officer in other sections prior to his deployment to [that] section. However, as discussed during the hearing, much of the information he provided relating to police mistreatment, torture, and the Chinese government’s unwillingness to permit any form of dissent is well known and publicly available and a brief search of the Internet will locate numerous articles on the human rights abuses and torture methods employed by not only Chinese police forces but various other police and security agencies worldwide. The Tribunal does not accept that this establishes that he had access to secretive information which the authorities may consider he will disclose or that he has disclosed any secretive information or information which is considered to be adverse to the Chinese authorities. The Tribunal considers that the provision of a passport in 2010; the applicant’s previous travel history to various places [overseas] for two weeks in 2013 for a holiday with his wife and child; and an earlier trip to [Country 2], indicates that he was able to leave China freely and his employment as a police officer was not considered to be a barrier to travel. As stated above many of the documents provided by the applicant to the Department and the Tribunal which discuss the human rights abuses and methods employed by the Chinese government against those who are considered to be opposed to the Chinese government is evidence that such information is freely available. The applicant’s own evidence also indicates that he has not released any secretive information. The Tribunal does not accept that he intends to do so or that he has publicly expressed opposition to police practices or that he has any knowledge that “makes him particularly vulnerable to persecution from the Chinese authorities”.  As also stated above, the Tribunal does not accept that the applicant would have been granted a passport in 2010 and been permitted to travel on that passport in and out of China on a number of occasions if the authorities had any concern that he has access to secretive information which he can or will release. This is supported by information cited by the delegate indicating that persons who are deemed a threat to national security would not be allowed to depart China and would have severe restrictions placed on travel.[8]

   [8] National Congress of the PRC, PRC Exit-entry Administrative Law,1 July 2013. See also the Department of Foreign Affairs and Trade 2015, Country Report: China, 3 March, which discusses the extensive security measures at airports, at p.20.

9. The Tribunal has also considered the applicant’s claims that he has applied for protection which is an “act of war” on the Chinese government. The Tribunal has also considered the documentation provided to the Department and the Tribunal in relation to Chinese “spies” in Australia and the leaking of information regarding applicants for protection in Australia, and concerns expressed by human rights groups in relation to these issues. The Tribunal has also had regard to the RRT decisions, the Federal Court case and the report by the Edmund Rice Centre regarding the presence of spies in Australia who monitor the movements of Chinese nationals and the case of two persons who were reportedly mistreated and disappeared upon their return to China after seeking Australia’s protection. The Tribunal has also had regard to the reports relating to the high profile Chinese diplomat who was considered to have defected from China and the case of the second Chinese defector.

10. The Tribunal firstly accepts that there is evidence that there is some monitoring of Chinese nationals in Australia and there have been some leaks of information regarding persons who have sought Australia’s protection. The Tribunal considers that in the context of significant immigration from China, and evidence as discussed in the report by the Edmund Rice Centre of large numbers of Chinese nationals seeking Australia’s protection, that such reports are not significant and do not establish that there is a real chance that persons who have applied for protection in Australia, even if it is known, will be subject to mistreatment. As discussed during the hearing, there have been limited reports of mistreatment of persons returning from Australia to China after spending lengthy periods of time in Australia both unlawfully and whilst applying for protection.[9] As also discussed during the hearing, the process of applying for protection is confidential. The Tribunal has also not accepted that the applicant is a “defector” or a “betrayer” as it has not accepted that he defected and has instead found that he resigned his employment from the police force two years earlier. The Tribunal accepts that if the China is deported from Australia rather than leaving voluntarily that it may be known he has applied for Australia’s protection. However, even if the authorities are aware of the applicant’s application for protection in Australia, the Tribunal is not satisfied that he has been at any time, or will be upon his return to China, of any adverse attention to the authorities due to this application and his employment as a police officer some years earlier. The Tribunal is not satisfied that this application for Australia’s protection will result in him suffering harm upon his return to China. As discussed during the hearing, the evidence indicates that the authorities are well aware that numerous persons claim Australia’s protection and they do so for various reasons, and there is very limited evidence of such persons being mistreated, unless they are considered to have been involved in public dissent, high profile activism, Falun Gong or other such illegal activities.[10] The Tribunal does not accept that the applicant will be considered to be such a person or to have been considered to have been involved in such activities. The Tribunal also does not accept that the applicant’s previous employment as a police officer, his resignation in 2012 from the police force and resignation at some time from the Communist Party is such that there is an increased chance he will suffer harm if it is known he has applied for protection in Australia. The Tribunal has not accepted that the applicant has access to or knowledge of secretive information which he has disclosed or will disclose at any time, and has found that his freedom to travel to both Europe, Australia and [Country 2] is indicative of the fact that he is of no interest to the authorities or considered to be a risk to police or national security interests in China. The Tribunal does not accept the applicant’s claims that he will be arrested at the airport and face severe punishment or denied legal representation, tortured until he confesses or accused of being a political traitor.

    [9] The most recent DFAT report does not refer to returnees or persons who have sought Australia’s protection as being a group which is at risk of harm upon their return to China.

    [10] In February 2013, DFAT advised that they could not comment on the treatment of failed asylum seekers but in June 2012 DFAT at the post in Beijing advised that they were aware that some failed asylum seekers who were returned from Australia ‘only had short interviews with authorities upon return’ primarily about why they returned to China on an entry permit rather than on an ordinary passport. The information indicates that the treatment varies but it is primarily those who have been involved in Falun Gong; were political dissidents or high profile activists and publicly criticised the regime and its leadership. The evidence indicates that “extreme circumstances a person could face criminal prosecution under Article 105 of the Criminal Law.

1. Accordingly, the Tribunal is also not satisfied that the applicant will be imputed with a political opinion as opposed to the authorities or the Chinese state. The Tribunal is, therefore, also not satisfied that there is a real chance that the applicant will come to the attention of the Chinese authorities upon his return to China because he was previously a police officer who has applied for Australia’s protection or that there is any other reason that the applicant will attract the adverse attention of the authorities upon his return to China. The applicant has not pursued his claims relating to his wife’s tubal ligation which were raised at the airport, but in any event the Tribunal is not satisfied that there is any evidence he will suffer serious harm for this reason. The Tribunal finds that there is not a real chance that the applicant will suffer serious harm for any Convention reason in China. The Tribunal finds, therefore, that the applicant does not have a well founded fear of persecution if he returns to China now or in the reasonably foreseeable future.

   Are 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 that he will suffer significant harm?

2. The Tribunal has also considered the applicant’s claims having regard to the Complementary Protection provisions. The Tribunal has not accepted that the applicant will be imputed with an adverse political opinion upon his return to China or that he previously had any adverse political profile in China. The Tribunal has also not accepted that there is a real chance he will suffer serious harm because he has applied for protection in Australia, even accepting that he was once employed as a police officer in China and has resigned from this position and from the Chinese communist party. Nor has the Tribunal accepted that there is a real chance he will suffer serious harm for any other reasons. For the same reasons as set out above, having regard to the Complementary Protection provisions, the Tribunal is not satisfied that there are substantial grounds for believing 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 in China.

3. Therefore, the Tribunal is not satisfied 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 the applicant will suffer ‘significant harm’ such that he will be arbitrarily deprived of his life, suffer the death penalty or will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’. 

   CONCLUSIONS

4. 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).

5. 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).

6. 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

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

   Susan Pinto
   Member

   
   

   ATTACHMENT - RELEVANT LAW

8. 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 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 of the same class as that applied for by the applicant; 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 of the same class as that applied for by the applicant.’

   Refugee criterion

9. Subsection 5(1) of the Act defines the ‘Refugees Convention’ for the purposes of the Act as ‘the Convention relating to the Status of Refugees done at Geneva on 28 July 1951’ and the ‘Refugees Protocol’ as ‘the Protocol relating to the Status of Refugees done at New York on 31 January 1967’.  Australia is a party to the Convention and the Protocol and therefore generally speaking has protection obligations to persons defined as refugees for the purposes of those international instruments.

10. Article 1A(2) of the Convention as amended by the Protocol relevantly defines a ‘refugee’ as a person who:

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

11. The definition contains four key elements.  First, the applicant must be outside his or her country of nationality.  Secondly, the applicant must fear ‘persecution’.  Subsection 91R(1) of the Act states that, in order to come within the definition in Article 1A(2), the persecution which a person fears must involve ‘serious harm’ to the person and ‘systematic and discriminatory conduct’.  Subsection 91R(2) states that ‘serious harm’ includes a reference to any of the following:

    (a)a threat to the person’s life or liberty;

    (b)significant physical harassment of the person;

    (c)significant physical ill-treatment of the person;

    (d)significant economic hardship that threatens the person’s capacity to subsist;

    (e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    Complementary protection criterion

12. An applicant for a protection visa who does not meet the refugee criterion in paragraph 36(2)(a) of the Act may nevertheless meet the complementary protection criterion in paragraph 36(2)(aa) of the Act, set out above.  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.

    Ministerial direction

13. In accordance with Ministerial Direction No. 56, made under section 499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration and Citizenship - ‘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.