1516430 (Refugee)

[2018] AATA 3666

1516430 (Refugee) [2018] AATA 3666 (12 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1516430

COUNTRY OF REFERENCE:                  China

MEMBER:David McCulloch

DATE:12 July 2018

PLACE OF DECISION:  Sydney

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

Statement made on 12 July 2018 at 10:42am

CATCHWORDS

Refugee – Protection visa – China – Harassment by Police – Threats and Intimidation – Mental Health Issues – False Claims – Decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES

MIEA v Guo & Anor (1997) 191 CLR 559
Yao-Jing Li v MIMA (1997) 74 FCR 275
Prasad v MIEA (1985) 6 FCR 155
Luu & Anor v Renevier (1989) 91 ALR 39
Randhawa v MILGEA (1994) 52 FCR 437

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicants who claim to be citizens of China applied for the visas on 15 December 2014 and the delegate refused to grant the visas on 5 November 2015.

3. The second named applicant, the wife of the first named applicant (‘the applicant’), appeared before the Tribunal on 6 June 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The issue of the capacity of the applicant to give evidence in a hearing of the Tribunal is discussed below.

5. The applicants were represented in relation to the review by their registered migration agent, who attended the hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

7. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

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

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

9. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

10. Subsections 36(2)(b) and (c) provide, as an alternative criterion, that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include spouse.

11. The applicant claims to be married to the second named applicant. No evidence has been provided of this. However, for the purpose of this decision the Tribunal accepts that the second applicant is married to the applicant and is therefore a member of the same family unit as the applicant.

12. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines, and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it DFAT Country Information Report – China, 3 March 2015.

13. The issue in this case is the credibility of the applicants and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background and claims

14. The applicants provided a copy of the decision of the delegate to the Tribunal, which indicates as follows in relation to the applicant’s migration history. The applicant applied for a [temporary] visa on 23 August 2011 which was refused on 29 August 2011. The applicant arrived in Australia on 7 December 2014 on [another visa] which had been applied for on 25 November 2014 and granted on 1 December 2014. That visa was valid until 21 December 2014. The applicant travelled to [Country 1] from [December] 2014 to [December] 2014. He had visited [another country] from [October] 2014 to [October] 2014.

15. The application for the protection visa was made on 15 December 2014.

16. The application forms for the protection visa indicate the following in relation to the applicant. The applicant was born on [date] in Dazhou, Sichuan Province, China. The applicant is married (in 1992). The applicant lists one address lived at in [Town 1], Sichuan Province from December 2004 until December 2014. The applicant attended [number] years of schooling ending in [year] at [level]. The applicant was [an Occupation 1] from July 2011 until November 2014. The applicant lists a daughter born in China on [date]. He lists a brother living in Australia, and [siblings] in China. He lists both parents living in China.

17. In addition to less detailed claims in the application form, the applicant provided a Statutory Declaration dated 16 October 2015, which sets out his claims, which provides as follows (not corrected for spelling or grammar):

    On 7 December 2014, my wife [the second named applicant] and I arrived in Australia together with a tour group. In China, I have suffered from inhuman treatments by the police of the Public Security Bureau (PSB), the government officials as well as the gangsters of the Black Society. We have to leave China (PRC) in order to escape from persecution.

    [I] was born in [Town 1], Dazhou City, Sichuan Province, China. Both of my parents were [in a certain line of work]. I had [siblings]. My [brother] is now an Australian citizen.

    I studied at the school for totally [number] years, including [number] years at [Town 1] Primary School and [number] years at [Town 1] Middle School.

    After I graduated from [Town 1] Middle [School], I worked with [a person], [an Occupation 1], for over 20 years. We got a lot of customers [at] those villages in [Town 1].

    In 1992, I got married with my vote [the second named applicant]. Our daughter [was] born on [date].

    In August 2007, [someone] died of an illness. After then, I employed [a] young man, to work as my assistant, and continually worked as [Occupation 1].

    In 2011, I heard that some stalls [in] [Town 1], were ready for lease. I thought that it was a good opportunity to make more [money]. So, I decided to rent a [stall].

    In July 2011, my [stall] was formally [opened]. By then, I had worked as [Occupation 1] and travel around many villages in [Town 1] for totally 24 years. I got a lot of regular [customers]. I knew very well where I could collect [supplies] at good prices. Therefore, my business quickly became very successful.

    In October 2014, [Company 1], extended its business to [another town]. [The] Legal Representative of [Company 1], as well as her [husband], had powerful official backgrounds, because many of their families or relatives were officials at some government agencies or police at PSB. [Company 1] took advantage of the official backgrounds to force me as well as other [people] to get [supplies] only from [Company 1], but the prices of its [products] were extremely unreasonable. Likewise, [Company 1] forced owners of [businesses] in [Town 1] to have to sell [products] to [Company 1].

    With my personal influence in the [industry] in [Town 1], I widely contacted those owners of [businesses], and called them upon resisting against [Company 1]. I encouraged them neither to get supplies from nor to provide [products] to [Company 1]. Meanwhile, together with some good friends, I visited the township government and the police station in [Town 1], requesting the government and police to protect our basic human rights.

    [Company 1] was immediately annoyed by my activities. They called gangsters of "Black Society" to beat me up in the street, smash my [stall], threaten my wife and daughter, and made troubles at my home. Although reported to the police. I could not get any helps. Some of other small businessmen, who had responded to my call, were also assaulted by the gangsters of "Black Society".

    In November 2014, I organized three assemblies in front of the township government in [Town 1] for three days in a row. There were only around 30 protesters in our first assembly but more 100 people attended our last rally. [In] November 2014, at our last rally, the township government promised to investigate [Company 1] and protect our basic human rights. However, I was unexpectedly arrested by the police at night of [date] November 2014. I was alleged to organize "illegal" assemblies to seriously harm social security. I then detained at a dirty and dark room at the police station in [Town 1] for 9 days. During my detention, I was subjected to inhuman treatments by the police and the officials. I was also forced to drink dirty water and eat dirty food. In the end, I was seriously ill and suffered from high fever.

    [In] November 2014, I was released on bail for medical treatment. But, I was required to report to the police station in [Town 1] every Friday. After that, I had to remain in the hospital. My wife found chances to bribe a doctor as well as a security guard who watched on me at the hospital. Furthermore, with helps of my friends. I finally left China together with my wife from [Guangzhou] on 3 December 2014.

    I have not only been alleged to organize "illegal" assemblies to seriously harm social security, but also regarded as a "dangerous person" with serious anti-Communist ideologies. If I return to China, I will be arrested by the PSB and imprisoned by the PRC authorities; I will be subjected to significant harm by the police or government officials or the gangsters of the Black Society; I will even be arbitrarily deprived of my life.

    Since my wife and I left China in December 2014, my parents, my brother, as well as many of my friends have been questioned, warned, threatened and harassed by the police, the officials or the gangsters of "Black Society". It is really impossible for them to have any normal livings at all.

    Based on all the above-mentioned reasons, my wife and I have to seek protection in Australia,

18. In the Tribunal hearing held on 6 June 2018, the second named applicant indicated that she herself fears harm in returning to China on the same basis as that articulated by the applicant. The second named applicant indicates that she was threatened by members of the ‘black society’ while in China.

    Capacity of applicant to give evidence

19. In response to the invitation to attend the Tribunal hearing on 6 June 2018, the applicant’s migration agent provided a letter from [Ms A], a registered psychologist, dated [May] 2018. It indicates that [Ms A] has seen the applicant on four occasions, firstly [in] March 2016 and then [in] April 2016, [July] 2016 and [May] 2018. In his early presentations the applicant only spoke minimally and did not speak even when asked questions. In the second and third sessions he was able to engage in some therapy and reported slight improvement and spoke a bit more at home. He was taking homeopathy for post-traumatic stress disorder (PTSD), depression, anxiety and insomnia. The applicant had been advised to see a psychiatrist.

20. She indicates that in the presentation [in] May 2018, which the applicant attended with the second named applicant, the applicant declined to engage fully and responded to questions relating to symptoms only with his fingers. He indicated that he has nightmares three times a week, visual hallucinations four times a week and audio hallucinations three times a week to harm himself or that someone is going to harm him. The second named applicant reported that at home the applicant would just sit and rock himself sometimes. She indicated that the applicant has no appetite and has lost weight. The second named applicant reported that the applicant had been assaulted by gangsters and police as indicated in his written claims. The psychologist assesses that the applicant is suffering PTSD with some psychotic features, depression and selective mutism. It is recommended that he see a psychiatrist.

21. The Tribunal discussed with the second named applicant in the Tribunal hearing held on 6 June 2018 the condition of her husband. The Tribunal indicated the desirability of the applicant giving evidence to the Tribunal, and requested a medical opinion as to the prognosis for the applicant and whether it is likely he will be fit to give evidence in the reasonably foreseeable future. The applicant’s migration agent indicated in the hearing that he understood this request.

22. In response, a further letter was provided to the Tribunal by [Ms A], the registered psychologist, dated [June] 2018, referring to an additional consultation with the applicant on that date. It reported, again, as to the inability of the applicant to speak in response to questions and only to be able to provide responses by indicating simple responses with his fingers. The assessment is that the applicant is suffering from PTSD with some psychotic features, depression and selective mutism. There is a recommendation the applicant see a psychiatrist. The psychologist offers the opinion that the applicant needs long-term regular therapy for at least 12 months.

23. At the end of the hearing, the Tribunal indicated to the second named applicant that it would be writing to both applicants putting certain information. The provision of that information in writing would allow both applicants, in consultation with their migration agent, to respond in a considered matter. The second applicant referred to the difficulty in having the applicant engage with such a request. The Tribunal indicated that, if that were the case, the second named applicant would have to respond on behalf of both of them in light of her being involved together with the applicant in the issues in question. The Tribunal highlighted in particular that it had concerns with the applicant not being able to continue to recount his written claims at a certain point in the interview with the delegate of the Minister and with no mention in that interview being made by either the applicant, the second named applicant or the applicant’s migration agent, who attended the interview, that the applicant was suffering any mental health condition. The second named applicant responded that her husband had indicated that he had developed a headache during the interview causing his inability to respond further. The Tribunal indicated that it would be writing to both applicants in relation to this issue to enable a more considered response.

24. The various responses are referred to further below.

25. On the basis of the evidence from the psychologist, the Tribunal finds that the applicant has been diagnosed with conditions that prevent him giving evidence to the Tribunal in the reasonably foreseeable future. The Tribunal therefore proceeds to make a decision based on the evidence provided, including the applicants’ evidence in the interview with the delegate and the evidence of the second named applicant in the Tribunal hearing, noting that the second named applicant was part of the family unit during the events claimed to have occurred in China forming the basis of the applicants’ claims for protection.

    Interview, hearing, credibility, findings and assessment

26. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is "well-founded" or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.

27. In considering overall the credibility of the applicant the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for … [but this should not lead to] … an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.

28. The Tribunal is satisfied that the applicants are citizens of China, and accordingly their claims will be assessed against China.

29. The Tribunal has a number of concerns with the evidence of the applicants. The fundamental concern is as a result of the applicant, at a certain point in the interview with the delegate, being unable to provide any further details as to what happened to him in China, consistent with his written claims, despite multiple opportunities given to provide details.

1. As foreshadowed in the hearing, following the hearing, the Tribunal wrote to the applicants pursuant to the procedural requirements of s.424A of the Act putting the following information:

   The information

   The information is evidence given by [the applicant] during the interview with the delegate of the Minister. The interview is approximately 37 minutes long. In the substantive part of the interview, [the applicant] answers many questions, without significant hesitancy or equivocation, concerning obtaining his business license, the number of other [businesses] in his area, the approach from [Company 1] to buy [products] only from them, which he did until they put their price up, and organising for himself and other [product] sellers to approach the government. [The applicant] refers to threes visits or protests to the Government.

   The delegate then asked [the applicant] what happened after the third visit. [The applicant] indicated that he contacted 100 people and then went to the Government again. The delegate asked if he was saying that there was a fourth visit. [The applicant] said ‘no’. He said that this was the third visit. The delegate asked, what was the next step? [The applicant] indicated that he did not understand what the delegate was saying. The delegate asked, again, what was the next step? [The applicant] indicated, again, that he did not understand the delegate.

   The delegate asked, again, what was the next step? [The applicant] paused for a significant period and then repeated that they visited the Government three times. The delegate indicated that [the applicant] had been asked on several occasions, what was the next step and that [the applicant] had not answered. The delegate indicated that [the applicant] needed to answer or he was going to conclude that [the applicant] did not know his own claims. At that point it appears from comments of the delegate that [the second named applicant] whispered in [the applicant]’s

   ear. The delegate asked [the second named applicant] to leave the room. The delegate asked [the applicant], again, what happened next, and then asked if [the applicant] had anything more to say. [The applicant] said that he did have something to say. The delegate asked [the applicant] what he had to say. There was a long pause. The delegate asked [the applicant] if there was any reason why he could not repeat his own claims. There was no response. The delegate asked if there was anything else. [The applicant] said that there was. The delegate asked what he

   wanted to say. There was a pause and [the applicant] said ‘I’m sorry’. He indicated that he was very nervous. [The applicant] said that he had something to say but then was not able to say anything. The delegate indicated that he concluded that [the applicant] did not know his own claims, and ended the hearing.

   The information is also the fact that, in the interview with the delegate, attended by

   both applicants (until [the second named applicant] was ejected for whispering to [the applicant]) and the applicants’ registered migration agent, there was no indication by anyone present that [the applicant] was suffering from any medical impairment, in particular a mental health condition. The only indication by the applicant was that he was very nervous. The information is also the fact that the only medical evidence of [the applicant] suffering a mental health condition was obtained after the interview with the delegate.

   Relevance of information

   This information is relevant because [the applicant] had failed, when asked on multiple occasions, to provide details as to substantive aspects of his written claims, including being arrested and detained for nine days, during which time he claims to have been subject to inhuman treatment. [The applicant] failed to provide any details of his stall being smashed, being beaten by the Black Society, or [the second named applicant] and their child being threatened at home. [The applicant] failed to provide details of being released for medical treatment, bribing a doctor and a security guard, and fleeing China for the reasons claimed.

   The information concerning the failure of either applicant or their registered migration

   agent in attendance in the interview to make any mention of [the applicant] suffering medical or mental health issues affecting his ability to give evidence, and the absence of any prior or contemporaneous evidence of such, could cause the Tribunal to consider that the failure of [the applicant] to provide key information in the interview consistent with his written claims, when asked, is not as a product of mental health issues. The fact of [the applicant] being able to answer initial questions concerning his claims in the interview, and not being able to respond further at the end of the interview, could suggest the inability to respond was not as a product of ongoing mental health issues. The Tribunal could conclude that [the applicant] had rehearsed his claims which he had forgotten in the interview.

   Consequence of relying on information

   The consequence of relying on this information could be to conclude that the

   applicant’s claims are not genuine, that [the applicant] had rehearsed untrue claims which he was not able to fully repeat in the interview, and that [the applicant] does not face a real chance of serious or significant harm for the reasons claimed

2. The second named applicant provided a Statutory Declaration in response. She indicates that she remembers the interview very well. She indicates that she was shocked and worried for her husband because she could tell that he was no longer himself and there was something seriously affecting him. She indicates that the applicant indicated to her that he suddenly felt it extremely difficult to think or speak and struggled to gather his thoughts. It was decided after the interview to seek a doctor to find a cause for the applicant’s mental breakdown. The second named applicant indicates that the reason for the applicant’s sudden mutness was due to a mental health condition he suffered. It is claimed that a doctor has diagnosed PTSD with some psychotic features, depression and selective mutism. It is claimed that the doctor suggests that this must have originated from some harrowing experiences in the past with his past mistreatment by Chinese authorities being the most likely cause. She claims that the doctor explained that it is most likely that the applicant carried the PTSD ever since he was mistreated by the Chinese authorities and it was triggered during the interview by the intense questioning about specific encounters with the Chinese government.

3. It is indicated that neither applicant mentioned this health condition in the interview because, at that point, they had no idea that the applicant suffered from PTSD. The second named applicant pleads for the Tribunal to take this into account when reviewing the interview before the Department.

4. The Tribunal notes that no diagnosis has been provided by a doctor. Instead, it is a psychologist who has diagnosed the various conditions suffered by the applicant. The Tribunal notes that none of the reports provided by the psychologist provides any opinion as to the cause of the various conditions that the applicant is diagnosed with. There is only a reference to the second named applicant recounting claimed events in China. Further, the psychologist provides no opinion that would support the proposition that traumatic events that occurred approximately a year and a half prior would suddenly cause the applicant extreme and ongoing mental health issues in a single moment, as a result of being questioned by the delegate about the events that had previously occurred. The Tribunal notes that no evidence was provided that the applicant had suffered any mental health conditions in the period following what is claimed to have occurred in China including travelling to [Country 1] and Australia and seeking to settle in Australia for about a year and a half. The Tribunal is not prepared to accept, on the word of the second named applicant, and in the absence of medical opinion, that a moment of questioning by the delegate would have suddenly triggered what the second named applicant claims.

5. The Tribunal is reinforced in this view by the fact that, in discussion in the Tribunal hearing with the second named applicant as to the process to respond to adverse information, the second named applicant said that, after the interview with the delegate, the applicant had indicated that he had developed a headache during the interview causing his inability to respond further. The Tribunal finds it telling that, at this point in the hearing (and prior to the s.424A letter being sent) the second named applicant made no mention of the fact that this line of questioning cause the sudden and extreme ongoing mental health conditions that are now claimed to have been caused by this event. The Tribunal is not persuaded that had the questioning in the interview caused the applicant to suddenly develop serious and ongoing mental health conditions as a result of issues a significant period in the past that the second named applicant would not have referred to this fact in the Tribunal hearing.

6. Considering all of the evidence, and taking into account the diagnosis of the psychologist, the Tribunal considers that the failure of the applicant to be able to continue to recount his claims in the interview with the delegate reflects a forgetting of rehearsed claims, rather than the sudden onset of serious mental health conditions.

7. This is considerably undermining as to the credibility of the claims. However, the Tribunal does not rely solely on this issue in making credibility findings. The Tribunal’s concerns in relation to this issue are reinforced by the following additional matters.

8. The Tribunal accepts that neither applicant, nor their representative, knew during the course of the interview with the delegate that the applicant had PSTD, because he had not been diagnosed with PTSD at that point. However, for the reasons indicated, the Tribunal is not satisfied that the sudden onset of PSTD was suddenly triggered during the course of the interview with the delegate, explaining the applicant’s inability to provide further details of his claims.

9. The following credibility concern was put to the applicants following the hearing in writing pursuant to the procedural requirements of s.424A of the Act:

   The information

   The information is evidence given by [the applicant] in the interview with the delegate.

   Towards the beginning of the interview, [the applicant] indicated that it was in 2011 that [Company 1] started doing business in his town and that, after a couple of days of doing business, they put up prices leading to the various difficulties claimed. The applicant confirmed with the delegate evidence he gave that the company started business in the applicant’s town in 2011, 10 years after the applicant himself had started his [business]. Later, the applicant was gave evidence that [Company 1] were threatening at this time that if [the applicant] did not buy [product] from them, then the company would take steps to ensure that the quarantine department deemed the applicant to be selling unhygienic [products]. The delegate confirmed again with the applicant that this occurred in 2011, which the applicant agreed was the case.

   [The second named applicant] then interjected that these events occurred in 2014. The applicant then agreed that these events happened in 2014. The delegate asked the applicant why he initially said that the events occurred in 2011. The applicant indicated that he misheard. The delegate indicated that there was nothing to miss here as it was the applicant who referred to 2011.

   Relevance of information

   The relevance of the information is that the applicant provided, on multiple occasions,
   the wrong year, by several years, of the threats by [Company 1], until corrected by Mr [name deleted] [mistake – should refer to [the second named applicant] as clear above]

   The consequence of relying on this information

   If the Tribunal were to rely on this information it could conclude that the incorrect
   information by the applicant in the interview on a key issue on multiple occasions is
   undermining of the truth of his claims, and undermining of claims both applicants that
   they face a real chance of serious or significant harm on return to China.

10. The second named applicant responded in a Statutory Declaration by indicating that the applicant was struggling mentally during the interview and could not gather his thoughts properly. He was easily confused. It is submitted that it is unreasonable to expect perfect responses.

11. The Tribunal from its listening to the recording of the interview is not persuaded that the applicant was significantly struggling at the point of the interview referred to. He was answering questions reasonably readily and otherwise cogently. The applicant indicated on two occasions that [Company 1] started business in 2011 without significant hesitancy or equivocation. The applicant himself did not say in response to the inconsistency being pointed out that he was suffering any significant difficulties or confusion. He instead provided the response that he had misheard, which is not the case because the applicant himself was the one who mentioned 2011 without prompting.

12. The inconsistency on this issue buttresses concerns in relation to the failure by the applicant to be able to recount core claims in the interview.

13. The following credibility concern was put to the applicants following the hearing in writing pursuant to the procedural requirements of s.424A of the Act:

    The information

    The information is evidence given by [the second named applicant] in the Tribunal hearing held on 6 June 2018. The evidence of [the second named applicant] is that, her husband, [the applicant], was released after nine days of police detention, for the purpose of being treated in hospital for [a medical condition]. The evidence of [the second named applicant] is that the applicant was accompanied by a security person who had been hired by the local police. The evidence of [the second named applicant] was that the intention was that the applicant would return to detention after his hospitalisation.

    Relevance of information

    This information is relevant because the fact of the applicant being released from
    police detention for the purpose of hospitalisation, together with a security guard, and
    being required to return to detention following hospitalisation, is not consistent with the written claims of the applicant that he was required to report to the police station in [Town 1] every Friday.

    The Tribunal sees no basis on which this would have been necessary if the applicant
    was attended by a security guard from the police while in hospital and the intention
    was that he would be returned to detention following hospitalisation.

    The consequence of relying on this information

    If the Tribunal were to rely on this information it could question the credibility of the
    claims by both applicants of the claimed detention of [the applicant] and the circumstances of release from detention, and the claimed issues leading up to detention.

14. In the Statutory Declaration provided by the second named applicant in response she indicates that there was a security guard but he was not affiliated with the police in any way prior to his hiring. The security guard actually worked with the hospital and his responsibilities were only with the hospital. The police only extended those responsibilities to include the constant surveillance of the applicant during his stay in hospital. This is why the applicant was still required to report because they did not want to rely on the word of the security guard and wanted to see the applicant for themselves.

15. The Tribunal acknowledges that this is a tangential and relatively minor issue. Nevertheless, the evidence in the hearing was that the security guard had been hired by the police. Notwithstanding any relationship the guard had with the hospital, if he was hired by the police he would have a contractual obligation to the police. The Tribunal does not find it plausible that an individual who was released from police detention for the purpose of hospitalisation would be required to temporarily discharge from hospital to report to the police when a security guard had been hired by the police to guard the applicant.

16. Before considering these credibility concerns, the Tribunal notes the following in relation to the evidence given by the second named applicant in the Tribunal hearing.

17. In the Tribunal hearing that was held on 6 June 2018 the second named applicant was able to provide details and answer questions mostly consistent with the written claims. She indicated in the hearing that she worked at her husband’s [stall]. She provided evidence consistent with the written claims of [Company 1] requesting that the applicant purchase [products] solely from them, which he objected to when the price was raised. She referred to her husband being a leader amongst other stall owners and organising resistance and protests to the government. She referred to two members of the ‘black society’ coming to her home when her husband was not there and threatening her and her daughter. She referred to her husband being beaten by members of the black society and members throwing [products] from his stall. She referred to her husband being released from detention for hospitalisation together with a security person hired by the police. She indicated that the intention was that the applicant would return to detention after treatment in hospital.

18. Notwithstanding that consistency, given the credibility issues referred to, the Tribunal is not satisfied with the truth of the applicants’ claims. The Tribunal is of the view that the applicants have rehearsed their written claims, apparent initially from the failure of the applicant in the interview with the delegate to be able to continue to articulate key claims at a certain point in the hearing. Although the Tribunal accepts the diagnosis of the applicant by a psychologist, the Tribunal is not satisfied that the applicant suffered a sudden breakdown in the interview with the delegate as claimed by the second named applicant.

19. The Tribunal is not satisfied that the applicant and other [stall] owners were intimidated by a company to only purchase products from that company for their [stalls]. The Tribunal is not satisfied that the applicant organised other stall holders to participate in a protest to authorities. The Tribunal is not satisfied that the applicants or their family were threatened and attacked by representatives of the company or underworld figures engaged at the behest of the company. The Tribunal is not satisfied that the applicant’s [stall] was smashed by gangsters or that they threw [products] from stall. The Tribunal is not satisfied that the applicant was arrested by authorities for facilitating an illegal assembly. The Tribunal is not satisfied that the applicant is regarded by authorities as a dangerous person including with serious anti-Communist ideologies. The Tribunal is not satisfied that the applicant was released from detention for medical treatment and that the second named applicant facilitated bribing an escape of the applicant from hospital. The Tribunal is not satisfied that the applicants fled China for these reasons and due to a fear of harm from authorities or from the company or associated underworld gangsters. The Tribunal is not satisfied that the applicants’ family and colleagues in China have been questioned by authorities or threatened by gangsters associated with the company as a result of these issues.

20. In light of those findings, the Tribunal is not satisfied that the applicants face a real chance of serious or significant harm for any of the reasons claimed.

21. In summary, the Tribunal is not satisfied that the applicants have a well-founded fear of persecution for a Convention reason for any of the reasons claimed.

1. In summary, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that the applicants face significant harm.

2. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

   DECISION

3. The Tribunal affirms the decision not to grant the applicants protection visas.

   David McCulloch
   Member