1517168 (Refugee)

[2020] AATA 5166

1517168 (Refugee) [2020] AATA 5166 (12 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBERS:  1517168
1517170

COUNTRY OF REFERENCE:                   China

MEMBER:Mireya Hyland

DATE:12 November 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Protection visas.

Statement made on 12 November 2020 at 6:35pm

CATCHWORDS
REFUGEE – protection visa – China – mother’s and son’s separate claims on same grounds heard together – not dependent members of family unit for purposes of regulations – land resumed by government for development project – protests and attempts to claim compensation – detention, harassment and threats – mother’s two stays in another country, son’s guarantee and penalty bond – city government’s plan to demolish apartment building – applicants’ fear of imprisonment, abuse, forced labour or death penalty – credibility – implausible and inconsistent claims and evidence – some claims made for first time at hearing – many minor inconsistencies and omissions collectively given some weight – no harm to husband/father remaining in home country – no response to tribunal’s post-hearing invitation to comment or provide evidence of mother’s mental health – decisions under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA, 36(2), 65, 424(2), 424A
Migration Regulations 1994 (Cth), rr 1.05A, 1.12(1)(b), (e)(i)

CASES
Aporo v MIAC [2009] FCAFC 123; (2009) 113 ALD 46
Applicant M164/2002 v MIMIA [2006] FCAFC 16
BEL16 v MHA [2019] FCA 1678
Dranichnikov v MIMA [2003] HCA 26; (2003) 77 ALJR 1088
Kopalapillai v MIMA (1998) 86 FCR 547
Machmud v MIMA [2001] FCA 1041
MIAC v SZNSP (2010) 184 FCR 485
MIAC v SZQRB [2013] FCAFC 33
MIAC v SZRKT [2013] FCA 317
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
MZYWL v MIMA [2013] FCA 895
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
SAAG v MIMIA [2002] FCA 547
Selvadurai v MIEA (1994) 34 ALD 347
Sun v MIBP [2016] FCAFC 52
Sundararaj v MIMA [1999] FCA 76
SZLUN v MIAC [2009] FMCA 1013
SZLVZ v MIAC [2008] FCA 1816
W148/00A v MIMA (2002) 185 ALR 703

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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. These are applications for review of decisions made by a delegate of the Minister for Immigration on 20 November 2015 to refuse to grant the applicants, [the first applicant] and her son, [the second applicant], protection visas under s.65 of the Migration Act 1958 (the Act).

2. [The first applicant] and [the second applicant] applied separately for the visas on 3 November 2014. The delegate refused to grant the visas on the basis that she was not satisfied that either [the first applicant] or [the second applicant] have a real chance of persecution or a real risk of significant harm in the foreseeable future. [The first applicant] and [the second applicant] lodged separate applications for review on 13 December 2015. Because they have made the same claims the Tribunal offered them a joint hearing of their matters. Both [the first applicant] and [the second applicant] agreed to having their reviews heard together.

3. The issues in this case are whether [the first applicant] and [the second applicant] are credible witnesses and whether the claims they have made are true. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CRITERIA FOR A PROTECTION VISA

4. At the time of application, the criteria for a protection visa were set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). 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.

5. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant 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 Convention’). If a person is found not to meet the criteria for a refugee, he or she may nevertheless meet the criteria for complementary protection in s.36(2)(aa) of the Act. The applicant must be 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.

   Member of the Same Family Unit

6. Subsections 36(2)(b) and (c) provide an alternative for a non-citizen in Australia who is a member of the same family unit as a person mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act states 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 stipulates that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition.

7. At the time of application, the expression ‘member of the family unit’ was defined in r.1.12 of the Regulations to include a spouse, dependent child, and dependent single relative in the household. The Tribunal notes that on his own evidence [the second applicant] is not the ‘dependent child’ of his mother because he is over the age of 18 and does not meet the definition of ‘dependent’ in r.1.05A since he is not reliant on her for financial, psychological or physical support. Therefore, he is not a member of [the first applicant]’s family unit. Nor is [the first applicant] a member of [the second applicant]’s family unit. While she is ‘dependent’ on [the second applicant] and usually resident in his household, she has a spouse, [Mr A], so does not meet r.1.12(1)(e)(i) of the Regulations.

8. There is no indication that both [the first applicant] and [the second applicant] are members of the family unit of a third person. While [the second applicant] is the child of [the first applicant]’s spouse, he does not meet the definition of [Mr A]’s ‘dependent child’ in r.1.12(1)(b) because it is clear from both [the first applicant]’s and [the second applicant]’s evidence about [Mr A]’s circumstances that [the second applicant] does not receive any of the relevant support from his father: r.1.05A. There is no claim that [the first applicant] and [the second applicant] are a member of anyone else’s family unit. The Tribunal finds that on the evidence provided by them, although they are mother and son, [the first applicant] and [the second applicant] are not members of the same family unit as defined in the Act and Regulations.

   Mandatory Considerations

9. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (DHA), and the country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, Country Information Report – China dated 3 October 2019, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. [The first applicant] and [the second applicant] made their claims for protection in their Protection visa application forms Part B and Part C (the PVAs), their Personal Particulars for Assessment Form 80s (the Form 80s), and their written statements accompanying Part C of their PVAs (the Statements). [The first applicant] and [the second applicant] were interviewed about those claims by the delegate on 22 October 2015 (the Interviews). They attended a joint hearing with the Tribunal on 22 March 2018 that was adjourned and a resumed hearing on 30 August 2018 to give evidence and present arguments (the Hearing). They were assisted at the Interviews and Hearing by interpreters in the Chinese (Mandarin) and English languages.

11. The Tribunal has reviewed the audio of the Interviews as well as the Hearing. Where relevant that evidence appears in this decision. It does not necessarily appear in the order in which it was given. On 28 October 2020, after reviewing all the material before it including the Interviews and Hearing, the Tribunal sent [the first applicant] and [the second applicant] invitations in accordance with s.424A of the Act, giving them an opportunity to comment on or respond to information that may be the reason or part of the reason for the Tribunal to affirm the decisions under review. It also sent them invitations to provide any additional information that they would like the Tribunal to consider in its review of their matters pursuant to s.424(2) of the Act. In line with the legislation, the Tribunal informed [the first applicant] and [the second applicant] that they had until 11 November 2020 to respond to its correspondence or to request an extension of time in which to respond. As at the date of this decision neither [the first applicant] nor [the second applicant] have responded to the Tribunal’s letters or requested an extension of time in which to respond.

    Background

12. According to her PVA and Form 80, [the first applicant] was born on [Date] in Heilongjiang province, China and is [Age] years of age. She attended and completed [Primary School ] from [Year] to [Year] and [Middle School] from [Year] to [Year] and she speaks, reads, and writes Chinese. She then worked in [Workplace 1] from 1977 until 2002. [The first applicant] married [Mr A] in 1981 and there is one child of the marriage, [the second applicant] born on [Date]. From 2002 until 2012 she was the manager of [Company 1] and from 2012 to 2014 she was Chairman of [Company 2], a [Business 1] in Fengtai district, Beijing.

13. According to his PVA and Form 80, [the second applicant] was born on [Date] in Heilongjiang province, China and is [Age] years of age. He attended and completed [Primary School] from [Year] to [Year] and [Middle School] from [Year] to [Year] and he speaks, reads, and writes Chinese. He then worked in [Workplace 2] from 2002 to 2006 and for [Workplace 3] as a manager from 2006 to 2009. [The second applicant] was the General Manager of [Company 2], a [Business 1] in Fengtai district, Beijing, from 2009 until August 2014. He had a de facto partner, [Ms B] born [Date], until the beginning of 2014 and there is a son of that relationship, [Master C] born on [Date]. [Ms B] and [Master C] used to live in Beijing but now live in Heilongjiang province with [Ms B]’s parents. [The second applicant] claims to have no contact with them.

14. According to the Statements, [the first applicant] and [Mr A] were farmers in  [Village], [Town] in Heilongjiang province until their farm (the [Village] land) was resumed by the government for a [development project], although this was not included as employment in [the first applicant]’s PVA or Form 80. In her evidence she claimed that they made a lot of money as farmers and were very well off. In 1992, [the first applicant] and [Mr A] bought a [unit] at [Location 1] on [a] Street in [a] district of Hailin City, Heilongjiang province (the Hailin City unit) and moved there with [the second applicant], who was around [age] years old. According to evidence at the Hearing, in Hailin City, [Mr A], who had also sold [products] when he was a farmer in [Village], opened a [Business 2] which he ran until he had a brain haemorrhage (stroke) in about 2007. From March 2010 (when he was [age]) until August 2014, [the second applicant] also lived at [Location 2] in the Chaoyang district of Beijing. In his evidence he claimed he used to own a home in Beijing but sold it before coming to Australia. [The first applicant] moved from the Hailin City unit to [Location 2], Chaoyang district, Beijing ([the second applicant]’s Beijing home) in March 2014 and lived there until leaving China in August 2014.

15. [The first applicant] has previously travelled to [Country 1] from [May] to [June] 2011 and [February] to [September] 2012. [The second applicant] has previously travelled to [Country 2], [Country 3], and [Country 4] on a two-week holiday [in] March 2013. [The first applicant] and [the second applicant] arrived in Australia [in] August 2014 as the holders of [Tourist] visas granted on 17 July 2014 in Beijing. They lodged their Protection visa applications on 3 November 2014 and an associated Bridging A Class WA Subclass 010 visa came into effect when their Tourist visas ceased on 6 November 2014. [Mr A] remains in China living in the Hailin City unit.

    Nationality

16. On the basis of the evidence before it the Tribunal finds that [the first applicant] and [the second applicant] are citizens of China, that they are outside their country of nationality, and that China is their receiving country for the purposes of the complementary protection criterion. There is no evidence before the Tribunal to suggest that either [the first applicant] or [the second applicant] have the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

    [The first applicant]’s and [The second applicant]’s Claims for Protection

17. The Statements set out the reasons why [the first applicant] and [the second applicant] believe that they will suffer serious and/or significant harm in the foreseeable future. The Statements are identical in substance and almost word for word the same. They include claims about the 1992 loss of the [Village] land, [the first applicant]’s attempts to get compensation and the harm she suffered from the Chinese government as a result, her efforts to avoid further harm and [the second applicant]’s various undertakings to the government to help his mother, and claims about a government plan to demolish the Hailin City unit in 2014. The claims for protection are as follows.

18. In 1992, the local government (presumably [Town], the town in Hailin City where [Village] is located) planned to build a [development project] in [the first applicant]’s home village of [Village]. The government decided to tear down the buildings in the area including the family’s home. They had a large block of land, almost [number] sq. ft., and the government took almost [number] sq. ft. of the [Village] land. The local government promised that there would be compensation for the land and ‘land premiums’ after they relocated. However, six years later, by 1998, none of the affected families, including [the first applicant]’s family, had received any compensation. [The first applicant] and [Mr A] visited the Hailin City government (a county-level city) ‘so many times’ and asked for a resolution to the compensation issue, but the Hailin City government ‘had been delayed their promise.’ According to the Statements, some of the families had a good relationship with the local government or knew people with a good relationship and they received compensation by sending gifts or inviting the local government officials out to dinner.

19. Because [the first applicant]’s family were farmers they could not live without their land so they decided to appeal to the ‘upper government’ with other families. In early 2011, 19 years after the [Village] land had been expropriated, [the first applicant] went to Beijing and tried to appeal to the Beijing government. However, the Beijing government said that her action was ‘a leapfrog appeal,’ (she did not petition the prefecture-level Mudanjiang City and/or provincial-level Heilongjiang governments). They said she was making trouble out of nothing. [The first applicant] was sent straight to a detention centre where she was detained for 15 days. A ‘few days later’, Beijing called the Hailin City government and [the first applicant] was escorted home by the Hailin City police. She was told to stay at home and not to go anywhere.

20. At this point, [the second applicant] became ‘afraid’ that the police would treat his mother ‘like [her] husband did’ and so persuaded her to go abroad ‘to avoid the punishment’. [In] May 2011, [the first applicant] went to [Country 1] ([detail deleted]). She told the Tribunal that she went to [Country 1] by [modes of transport]. When the ‘local police’ (given her residence in 2011, presumably the Hailin City police) found out that she had left China they went to her home and ‘gave a lot of pressure bullying to’ [Mr A]. They asked that she return to China as soon as possible. [In] June 2011, [the first applicant] returned home ‘under [her] son’s company and his personal reputation guarantee.’ The local police went to her home as soon as she returned and warned her not to leave again without letting them know.

21. [The second applicant] had a friend who is a solicitor and was very sympathetic when he heard about the ‘local government’ (presumably the Hailin City government) ‘bullying and persecution’ of [the first applicant]. With his help [the first applicant] and [the second applicant] found a journalist from Central China Television (CCTV). After they told the CCTV journalist their situation, he promised that he would get them ‘justice’. [The first applicant] and [the second applicant] never expected that the journalist would, instead, report them to the Hailin City government. The CCTV journalist said that he did not want to get into trouble. A few days later the local police again turned up at the Hailin City unit looking for [the first applicant], but she was staying at [the second applicant]’s Beijing home and only [Mr A] was at the unit. The police did not arrest [Mr A] ‘according to his body condition’.

22. [Mr A] rang [the second applicant] and told him what had happened, and [the second applicant] asked [the first applicant] to leave China again ‘to avoid the persecution’. [In] February 2012, [the first applicant] went back to [Country 1]. However, the conditions in [Country 1] were ‘horrible’; the weather was ‘very bad and cold’, aggravating a problem she has with her back. [The second applicant] ‘had not intention to run his business after he knew [the first applicant’s] situation in [Country 1]’. He was so worried about her that he looked for help from friends who had a relationship with the Hailin City government. They said that if he wrote ‘a guarantee letter’ and guaranteed [the first applicant] would not report to the ‘upper government’ again then it would be safe for her to return home. [The second applicant] wrote the letter and paid RMB[Amount] ‘penalty bond’. [The first applicant] returned home [in] September 2012.

23. [In] February 2014, the neighbourhood committee came to the Hailin City unit and told [the first applicant] and [Mr A] that the building was to be demolished due to a road extension. This made them feel ‘disappointed and helpless’ because they did not want to move again, and so [the first applicant] did not sign any of the documents (the unit documents). Instead she went and stayed at [the second applicant]’s Beijing home. [The second applicant] asked a friend to look after [Mr A]. When the Hailin City government found out that [the first applicant] had gone to [the second applicant]’s Beijing home they reported it to the Beijing Chaoyang district government. The Chaoyang district government went to [the second applicant]’s company and asked for [the first applicant]. When he refused to give the authorities his mother they ‘bully’ him by ‘obstructed’ his business’ daily operations. As a result, [the second applicant] lost a lot of business because people did not want to get into trouble once they knew about the situation. The Chaoyang district government threatened that they would do everything they could to make him lose the business if he let [the first applicant] stay at his Beijing home.

1. After consulting with [Mr A] and [the second applicant], [the first applicant] found that there was no way for them to live in China and avoid persecution from the ‘community party’. To defend their ‘freedom’ they had to go abroad. [The second applicant] asked a lot of friends to help them obtain overseas visas and after he paid a large sum of money his friends helped them obtain visas to Australian. [The first applicant] had to leave [Mr A] at home because of his health and asked [the second applicant]’s friend to looking after him.

2. Once [the first applicant] and [the second applicant] arrived in Australia, [the first applicant] rang [Mr A] in China. He told her that an officer had come to the Hailin City unit and searched for them because ‘we were dismissed’. He told them that they had been ‘treating as damage the peaceful society’s development.’ After serious consideration [the first applicant] and [the second applicant] decided that they cannot go back to China because if they do they will suffer ‘relentless abuse in prison, forced labour camps or even the death penalty.’

3. At the Interview, [the first applicant] said that she fears that the police will make her sign the unit documents and she will not get the replacement housing or compensation that she wants. [The second applicant] told the delegate that if returned to China [the first applicant] will be harassed and detained in relation to the Hailin City unit. He fears he will suffer the same harm because he and his company ‘sponsored’ [the first applicant] when she returned to China from [Country 1]. He also claimed that he cannot run a business in China anymore because of the difficulties he and his business experienced when he provided the guarantee for [the first applicant] and her subsequent refusal to sign the unit documents.

4. [The first applicant] and [the second applicant] also claim in the Statements that they are afraid to go back to China. [The first applicant] ‘was feeling the darkest under the leadership of the communist party’ and [the second applicant] ‘was feeling the darkest under the leadership of the “Community Party” from my childhood.’

5. At the Interview, [the first applicant] told the delegate that if she goes back to China she fears that the police will make her sign the unit documents. She also fears she will feel scared walking the streets. When asked why, she said it was because she got scared before, she has a fear of the police, a fear they will catch her.

   Credibility

6. In determining whether an applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal is also mindful that if it makes an adverse finding in relation to a material claim made by the applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[1]

   [1] MIMA v Rajalingam (1999) 93 FCR 220.

7. However, the Tribunal is not required to uncritically accept all, or any, of the claims made by an applicant[2] or have rebutting evidence available to it before it can find that a particular fact asserted by an applicant has not been made out.[3] The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either ‘well-founded’ or for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[4]

   [2] SZLVZ v MIAC [2008] FCA 1816 at [24] per Middleton J (SZLVZ v MIAC) at [25].

   [3] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

   [4] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70

8. Although the concept of an ‘onus or burden of proof’ is one that is buried in the practice and procedure of superior courts of law[5] and, as a general proposition, has no application to administrative decision-making,[6] there is no burden upon the Tribunal to make out a case that an applicant has failed to adequately advance.[7] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.

   [5] Sun v MIBP [2016] FCAFC 52 (Sun v MIBP) at [63] per Flick and Rangiah JJ.

   [6] Sun v MIBP at [6] per Logan J and [65] per Flick and Rangiah JJ; SZLVZ v MIAC at [24] per Middleton J citing Yao-Jing v MIMA (1997) 74 FCR 275 at 288.

   [7] Sun v MIBP at [69] per Flick and Rangiah JJ; SZLVZ v MIAC citing Prasad v MIEA (1985) 6 FCR 155 at 170.

9. While it is inappropriate for the Tribunal to require particular evidence as a precondition for accepting that an applicant’s claims are true,[8] it is a generally-expressed and recognised principle that it is for an applicant to provide his or her evidence and arguments in sufficient detail to enable the Tribunal to establish the relevant facts.[9] As Kirby J observed in Dranichnikov v MIMA:[10]

   The Tribunal acts in a generally inquisitorial way. This does not mean that a party before it can simply present the facts and leave it to the Tribunal to search out, and find, any available basis which theoretically the Act provides for relief. [The High Court] has rejected that approach to the Tribunal's duties. The function of the Tribunal … is to respond to the case that the applicant advances …[11]

   Much of the material advanced by [the first applicant] and [the second applicant] in support of their case includes inconsistencies and omissions, is implausible, or remains insufficient and inadequate to enable the Tribunal to establish the relevant facts.

   [8] Machmud v MIMA [2001] FCA 1041.

   [9] Aporo v MIAC (2009) 113 ALD 46; [2009] FCAFC 123 Spender, Moore and Foster JJ and Sun v MIBP at [69] per Flick and Rangiah JJ; SZLVZ v MIAC citing MIMIA v Lat (2006) 151 FCR 214.

   [10] [2003] HCA 26 at [78], (2003) 77 ALJR 1088 at 1100.

   [11] As cited in Sun v MIBP at [69] per Flick and Rangiah JJ.

10. The Tribunal acknowledges that a small number of the adverse details referred to below, while relevant, relate to more minor issues. It does not generally consider that minor or trivial matters of fact should, on their own, undermine a witness’ credibility.[12] But, when all the problematic evidence set out below is considered together, the Tribunal has found things that might otherwise appear inconsequential, collectively take on more significance.[13] Therefore, those less substantial inconsistencies have been given some weight. While each may, itself, be minor, as a whole they provide a picture of witnesses who have made small mistakes about supposedly unimportant details because they are not telling a story from their personal experience.

    [12] BEL16 v MHA [2019] FCA 1678 at [20] and [108] per Beach J.

    [13] MIAC v SZRKT [2013] FCA 317 at [78] and Sundararaj v MIMA (1999) FCA76; MIAC v SZNSP (2010) 184 FCR 485 per Katzmann J at [49], SZLUN v MIAC [2009] FMCA 1013.

11. There are also some claims that, when viewed together, appear implausible to the Tribunal. The Tribunal does not generally place weight on its mere opinion of whether a claim seems probable, particularly if there might be any other explanation regardless of how unlikely.[14] However, when the sheer number of concerns below are viewed in conjunction with these implausibilities, the Tribunal has factored them into its decision about [the first applicant]’s and [the second applicant]’s overall credibility. It has not taken implausibility into account as part of its reasoning in its findings on any particular claim.

    [14] W148/00A v MIMA (2002) 185 ALR 703 at 717 per Tamberlin and Nicholson JJ and MZYWL v MIMA [2013] FCA 895, Applicant M164/2002 v MIMIA [2006] FCAFC 16, SAAG v MIMIA [2002] FCA 547.

12. While [the first applicant] and [the second applicant] lodged separate visa applications, they have claimed they both experienced the same series of events and as a result they will both suffer serious or significant harm in China. However, their evidence about those events was not consistent. The inconsistent information provided by [the second applicant] is adverse to [the first applicant]’s case because, having made the same claims, it is reasonable to expect that the information provided by [the second applicant] would be consistent with, and so corroborate, the information that [the first applicant] provided. The same reasoning applies to inconsistencies in [the first applicant]’s evidence in relation to [the second applicant]’s case. Also, as well as the discrepancies in their evidence, [the first applicant] and [the second applicant] gave internally inconsistent information further undermining their credibility as witnesses in each other’s case and the credibility of their claims generally.

13. During the Hearing [the first applicant] told the Tribunal that she had ‘a psychological problem at the moment.’ When asked what she meant, she said that she had depression. She was diagnosed in China. She said because she has depression if she is asked something now and asked a few days later she gives different answers. The Tribunal asked if she had any evidence of the diagnosis and she said that when she left China she was too scared to bring the paperwork with her to Australia. She was unclear about why. [The first applicant] was given an opportunity to provide medical evidence about her mental health issues and the impact she claims they have on her memory. No such evidence was provided. The Tribunal does not accept that [the first applicant]’s explanation can account for the many major changes in her claims and evidence set out below, some of which involve two entirely different set of facts. Given this, and the overwhelming number of concerns set out below, the Tribunal is unwilling to accept [the first applicant]’s explanation at all without independent corroboration of her claim.  

14. Often [the first applicant]’s and [the second applicant]’s evidence was evasive, either not answering the questions or falling back on the Statements even where not relevant to the question. But much of the problem with their evidence was the inconsistencies and omissions between the Statements, Interviews, and Hearing. At the Hearing [the second applicant] claimed that it had been such a long time since the events that it was not surprising that he could not remember small details. The Tribunal does not accept that its concerns are small details. Rather, for the most part, they relate to major events and claims of critical harm that if true it is reasonable to expect would have remained consistent over time. And it does not accept that this explanation can rationalise all the problems with the evidence. For instance, many of the problems involve earlier omissions in the Statements and Interviews or significant changes to basic claims and/or entirely new claims that directly contradict earlier evidence. This type of problem cannot be explained by the length of time between the events and when the claims were made.

15. Further, the Tribunal does not consider that the time between 2011 when the initial harm occurred and 2014 when the Statements were made is a long time to accurately remember claims of harm so severe that it reaches a level that would attract Australia’s protection. Nor does it agree that the time between the Statements in 2014, Interviews, and Hearing in 2018, constitutes a long time, particularly given the nature of the claims. Finally, the period between the events in 2011 and the Hearing in 2018 does not account for the significant changes in certain claims set out below, like where [the first applicant] was detained and how often, when the RMB[Amount] was paid and for what, or when and why [the first applicant] went into hiding. The Tribunal rejects [the second applicant]’s explanation for the problems in the evidence.

16. One of the Tribunal’s biggest concerns about [the first applicant]’s and [the second applicant]’s evidence is that there were a large number of important claims of serious and significant harm directly related to their reasons for claiming protection that did not come to light until the Hearing. These additional claims did not appear in the Statements and, often, were not raised at the Interviews. They include, but are not limited to, such substantial and critical claims as a long history of persecution for petitioning before the events set out in the Statements, police abuse including bribery and the risk of illegal detention in 2011, further petitioning done in 2012 that resulted in arrest and further police abuse, having to hide from the authorities between 2012 and 2014, and a fear of harm if returned to China for absconding.

17. While the Tribunal accepts that lodging a review is intended to give applicants an opportunity to provide additional evidence and make further arguments in support of their case, it is reasonable to expect that key events and related instances of critical harm that run central to an applicant’s claims of past persecution would be made at the earliest opportunity, or at the very least at some point (for instance at the delegate’s interview or in an early submission) before the Tribunal hearing. When considering all [the first applicant]’s and [the second applicant]’s evidence, the Tribunal found that the sheer number of late claims made about so many notable events undermines its faith in the veracity of those claims and [the first applicant]’s and [the second applicant]’s credibility generally. In this regard, the Tribunal notes that at the Interviews [the first applicant] and [the second applicant] were asked if they had any further claims that they wished to put forward in their case and they told the delegate that they had no further claims.

    Claims Related to the [Village] Land

18. In the Statements, [the first applicant] and [the second applicant] claim that in 1992 the [Village] land was resumed by the government and the family moved to Hailin City. They never received any compensation for the land. They petitioned the county-level government in Hailin City for the promised compensation until 2011 when [the first applicant] went to Beijing. She was detained in Beijing for 15 days then returned to Hailin City where [the second applicant] became concerned about possible police harassment and sent her to [Country 1]. After he and his company gave a personal guarantee [the first applicant] returned to China, but she then spoke to a CCTV journalist who reported them to the government. So, in 2012 [the second applicant] sent [the first applicant] back to [Country 1] for her protection. After he signed a letter of guarantee and paid RMB[Amount] she was able to safely return to China.

    Before 2011 – Harm Suffered, [Mr A]’s Activities and Health, and the [Business 2]

19. The Statements claim that [the first applicant] and [Mr A] visited the Hailin City government ‘so many times’ to ask for a resolution to the compensation issue, but the Hailin City government ‘had been delayed their promise.’

20. First, there is no claim that [the first applicant] or [Mr A] suffered any harm before 2011 in the Statements. [The second applicant] also confirmed at the Hearing that his parents did not suffer any harm prior to [the first applicant] going to Beijing in 2011. However, at the Hearing [the first applicant] made significant new claims of harm suffered before 2011, claims that if true it would be reasonable to expect would have been made at the earliest opportunity and included, at the least as background, in the Statements. It is also significant that evidence that this harm caused [Mr A] to have a stroke and become incapacitated was omitted from the Statements and Interviews. It is reasonable to expect that this level of harm to a loved one because of actions by the government related to petitioning for compensation would have been claimed at the earliest opportunity as it is an integral part of the story of their pursuit of compensation, particularly since [the first applicant] claims [Mr A] was an organiser. Instead, no claims were made about any of his activities until the Hearing when claims about what occurred before 2011 escalated considerably. [The first applicant] also gave contradictory evidence about the harm suffered before 2011, as well as [Mr A]’s [Business 2] and his health.

21. Second, at the Hearing [the first applicant] said that when they moved to Hailin City in 1993 ‘we had to go to reporting all the time’. She said that this was why [Mr A] got so sick that he could not maintain his [Business 2] and had to sell the business. This claim does not appear in the Statements and neither [the first applicant] nor [the second applicant] made the claim at the Interviews. Also, it is inconsistent with [the second applicant]’s evidence at the Hearing that nothing happened to his family before [the first applicant] went to Beijing and petitioned in 2011.

22. Third, at the Hearing [the first applicant] said that because the government did not give them any money or a house in compensation for the [Village] land as promised, they had to keep complaining to higher authorities. She said that on the way to the bureau office police would arrest them. [Mr A] was ‘sad and worried’ about this and that is why he became ill in 2006 or 2007. [The first applicant] confirmed to the Tribunal that it was the arrests he suffered that led to his stroke and forced him to sell his [Business 2], saying they complained as a group and once you complained you are arrested by the police. This claim does not appear in the Statements and [the first applicant] did not make the claim at her Interview. Also, it is inconsistent with [the second applicant]’s evidence that nothing happened when his family petitioned before 2011.

23. Fourth, at the Hearing [the first applicant] said that it was [Mr A] who went to the Hailin City government to complain in the 1990s and 2000s. He was one of the organisers and he went constantly with a large group of people five or six years after the [Village] land was taken, but eventually the Hailin City government would not see them anymore. She made clear to the Tribunal that she did not petition, only [Mr A], and at that point in the Hearing, when asked what happened to [Mr A] when he petitioned, said nothing about being required to report or there being arrests. In this version of [the first applicant]’s story, it was the stress of trying to get the compensation, not having to report or being arrested, that led to [Mr A] having a brain haemorrhage in 2007 and selling the [Business 2]. This claim does not appear in the Statements and neither [the first applicant] nor [the second applicant] made the claim at the Interviews. In fact, in the Statements it is claimed that [the first applicant] visited the Hailin City government with [Mr A] ‘so many times’. Also, it is inconsistent with [the second applicant]’s evidence that [the first applicant] petitioned the Hailin City and Mudanjiang City governments before going to Beijing.

24. Fifth, at the Hearing [the second applicant] said that [the first applicant] lodged a complaint with the Hailin City government in 2000. He said the government did nothing in response. [The first applicant] then lodged a higher-level complaint with the Mudanjiang City government. [The first applicant] did not lodge a complaint with the provincial government. The Mudanjiang City government would not receive the petition. This occurred sometime between 2000 and 2007 because [the second applicant] said that this happened after he left school which was in October 2000. He also said the Hailin City government did not know about the Mudanjiang City petition, so they did not retaliate against the [Business 2], which [the first applicant] said closed in 2007. This is inconsistent with [the first applicant]’s evidence that only [Mr A] petitioned for compensation in the 1990s and 2000s. It is also inconsistent with the evidence that they had to report regularly and that she and/or [Mr A] were arrested on the way to petitioning before he became ill in 2007.

1. Sixth, according to [the second applicant] at his Interview, [the first applicant] was detained twice, once in Beijing in 2011 and once ‘a long time ago’. [The second applicant] could not remember when [the first applicant] was first detained, but it was in relation to the removal of the [Village] land. This claim does not appear in the Statements and [the first applicant] did not make the claim at her Interview. It is also inconsistent with [the first applicant]’s evidence that only [Mr A] petitioned in the 1990s and 2000s and [the second applicant]’s evidence at the Hearing that nothing happened to [the first applicant] when she petitioned Hailin City and Mudanjiang City governments or at all before 2011. The Tribunal considers this to be a significant inconsistency and it has viewed it particularly adversely in its assessment of [the second applicant]’s credibility. That he forgot to raise such substantial harm as detention with the Tribunal when asked about the harm suffered before 2011 indicates that it was a recent invention made up at the Interview in order to make the harm appear more serious. It suggests to the Tribunal that [the second applicant] is willing to change his evidence and generally be untruthful in order to achieve his desired migration outcome.

2. Seventh, [the first applicant] told the Tribunal that she petitioned to both the Mudanjiang City and Heilongjiang province governments about the [Village] land. This claim does not appear in the Statements and was not made by either [the first applicant] or [the second applicant] at the Interviews. It is inconsistent with [the first applicant]’s evidence that only [Mr A] petitioned the local government and [the second applicant]’s evidence that [the first applicant] did not petition the provincial-level government. It is also inconsistent with the claim in the Statements and [the second applicant]’s evidence at the Hearing that [the first applicant] was detained for 15 days for not petitioning the Mudanjiang City and/or the Heilongjiang province government and instead making a ‘leap-frog appeal’ directly to the Beijing government.

3. Eighth, all the above information is of concern because if [Mr A] was a petition organiser and it was his constant petitioning, arrests, and/or need to report that led to an illness so debilitating that he had to sell his business and became an invalid, the Tribunal would expect that these claims would have been consistent and made at the earliest opportunity in the Statements or at the Interviews. The omissions, constantly changing, contradictory evidence, and the fact that many of the claims were not raised until the Tribunal began questioning the seriousness of the claimed harm at the Hearing undermine [the first applicant]’s and [the second applicant]’s credibility in relation to these claims and generally.

4. Ninth, [the first applicant] claimed that from the early 1990s [Mr A] ran a small [Business 2] consisting of a stall with tables selling [products] that closed in the early 2000s due to his ill health caused by the stress of petitioning for compensation. [The first applicant] then changed her evidence and said the [Business 2] did not start until 1997 or 1998 and it closed in 2006 or 2007. [The second applicant] told the Tribunal that [Mr A] always sold [products] even when farming in [Village] before 1993 and he continued to do so in a [Business 2] when they moved to the city in 1993. He initially said that [Mr A] sold the business after [the first applicant] went to Beijing in 2011, but then changed his evidence and said that it was before 2010. Also, at first [the first applicant] said that the [Business 2] was a small business ‘not a proper job’, but later when it suited her narrative better, said that it made the family a lot of money.

5. [The first applicant] told the Tribunal that the family are farmers and if they do not have a plot of land to plant how can they survive. However, she also told the Tribunal that her family was very well-off. She said they made a lot of money from farming, from the [Business 2], and from [the second applicant]’s [Business 3] in Beijing so that they had sufficient financial means that she and [Mr A] did not have to work after he had his stroke in 2007 and sold the [Business 2].

6. The fact that [the first applicant]’s and [the second applicant]’s evidence about the timing and nature of the family’s financial circumstances before 2011 is changing and contradictory undermines their claims about events occurring before 2011 and their credibility generally. Both [the first applicant] and [the second applicant] were willing to change their evidence about the timing of events and the family’s circumstances to match the concerns raised by the Tribunal. This indicates to the Tribunal that they are willing to be untruthful in order to achieve their desired migration outcome. It also means that if they are willing to tailor the evidence about such basic things as their means of financial support and circumstances when they feel it will benefit their case, how is the Tribunal to believe their evidence on other matters.

   February and March 2011 – The Trip to Beijing, [The first applicant]’s Detention, and the RMB[Amount]

7. The Statements claim that when [the first applicant] petitioned the Beijing government she was ‘immediately’ sent to detention for 15 days because it was a ‘leap-frog appeal’. Beijing then called the Hailin City government and the Hailin City police took [the first applicant] home.

8. First, at the Hearing [the first applicant] said that she went to Beijing with around 100 people from Heilongjiang province to petition for the compensation she had been promised, but the Beijing office would not see them. This was in mid-February 2011 around Chinese New Year. Sometime later the Heilongjiang province police arrested [the first applicant] for no reason, and she was detained for 15 days. [The first applicant] confirmed to the Tribunal that it was the provincial police that took her back to Hailin City where she was detained for 15 days. She confirmed that she was released around March 2011. This is inconsistent with the Statements and [the second applicant]’s evidence at the Hearing that [the first applicant] was detained in Beijing because she did not petition the Heilongjiang province government before going to Beijing and she was then returned home by the Hailin City, not the Heilongjiang, police. These are significant changes in [the first applicant]’s evidence and the Tribunal has put considerable adverse weight on these inconsistencies when assessing her credibility as a witness.

9. Second, [the first applicant]’s passport was issued in [2011]. When asked at the Hearing why it was not cancelled if she was detained in February 2011, [the first applicant] said it was because she had not been detained for 15 days so she does not have a record. This is inconsistent with the Statements and [the second applicant]’s evidence at the Hearing that [the first applicant] was detained in Beijing for 15 days. It is also inconsistent with [the first applicant]’s evidence at her Interview, and her evidence at the Hearing, that she was detained in Hailin City for 15 days. This evidence indicates that [the first applicant] was willing to change her evidence as the Hearing progressed in order to address what she perceived as issues the Tribunal had with her evidence. It significantly undermines her credibility as a witness.

10. Third, [the second applicant] told the Tribunal that [the first applicant] was detained for 15 days in Beijing. She was arrested because she appealed directly to Beijing and did not first petition the provincial-level government. He said that with her detention she was in Beijing for less than a month. This is inconsistent with the evidence that [the first applicant] gave at the Hearing both that she was detained in Hailin City for 15 days and that she was not detained for 15 days at all.

11. Fourth, [the second applicant] told the Tribunal that he paid a bribe of RMB[Amount] in January or February 2011 to the Hailin City police to keep [the first applicant] out of detention and confirmed that if he had not paid the money she would have been illegally detained ‘continuously’ because she had offended them and they did not want to give her an ‘easy way to go’. This is inconsistent with the evidence in the Statements that the RMB[Amount] was a bond paid to secure [the first applicant]’s return to China after her 2012 trip to [Country 1]. It is also inconsistent with [the first applicant]’s evidence at her Interview and to the Tribunal that the RMB[Amount] was paid to a ‘notoritory’ office as a guarantee to secure her return to China after her 2011 trip to [Country 1].

12. Fifth, the timing of [the first applicant]’s trip to Beijing, her detention, and [the second applicant]’s bribe are problematic since both [the first applicant] and [the second applicant] claimed that she went to Beijing at Chinese New Year. [The second applicant] told the Tribunal both that [the first applicant] was detained in Beijing for 15 days and that she was returned to Hailin City in less than a month. [The first applicant] told the Tribunal that she went to Beijing in mid-February and she returned to Hailin City in March 2011 where she was then detained for 15 days. Chinese New Year in 2011 was on 3 February 2011 not the middle of February. If, as the Statements claim, [the first applicant] was ‘immediately’ detained for 15 days and then returned to Hailin City she certainly would have been in Beijing for less than a month. If, as [the first applicant] claimed at the Hearing, she was detained in Hailin City, not Beijing, that would have meant even less time in Beijing. But either scenario would have returned [the first applicant] to Hailin City in February not in March as she claimed.

13. Further, [the second applicant] told the Tribunal that after she was returned to Hailin City he paid a bribe to keep her out of detention. But he said he paid the bribe in January or February 2011. January would have been before Chinese New Year when [the first applicant] went to Beijing. While he might have paid the bribe in February if the Statements or his evidence were true, [the first applicant] told the Tribunal she was not returned to Hailin City by the provincial police and detained until March. If her evidence is true a bribe in February would have been paid before there was even a problem with the Hailin City police.

    March to May 2011 – Harassment and Harm from Police in Hailin City

14. The Statements claim that when the Hailin City police returned [the first applicant] back to the Hailin City unit from Beijing, they told her not to go anywhere. [The second applicant] became afraid that the police might harm [the first applicant], so he arranged for her to go to [Country 1] [in] May 2011.

15. First, [the first applicant] told the Tribunal that she was scared after going to Beijing because the police kept arresting her and she is uneducated. This is what led [the second applicant] to get [the first applicant] a visa for [Country 1]. This claim does not appear in the Statements and neither [the first applicant] nor [the second applicant] made the claim at the Interviews. In fact, at the Interview [the second applicant] said that [the first applicant] was only detained twice, once before 2011 and for the 15 days in Beijing. It also appears inconsistent with [the second applicant]’s evidence that he paid a RMB[Amount] bribe to the Hailin City police not to detain [the first applicant] after her return from Beijing.

16. Second, at the Hearing [the first applicant] said that after she was released from detention the government summoned her ‘anytime’ and came to see her every week. She said that they made her ‘study’ every week to stop her from petitioning again because it affected the reputation of the country. [The first applicant] confirmed that she had to go to the police station every week for re-education. These are not insignificant claims of harm and yet they do not appear in the Statements and [the first applicant] did not make these claims at her Interview.

17. Third, at her Interview [the first applicant] said that when she returned to Hailin City from Beijing the police told her that she could be summoned at any time and she was afraid that they would go to her home and ‘catch’ her. This is inconsistent with the evidence at the Hearing that they did go to [the first applicant]’s house weekly.

18. Fourth, [the second applicant] told the Tribunal that [the first applicant] was required to report to the police weekly. This appears inconsistent with [the first applicant]’s evidence that she was told she could be summoned anytime. This claim did not appear in the Statements and [the second applicant] did not make the claim at his Interview. He did not mention at the Hearing any of [the first applicant]’s claims that she was regularly arrested, that police came to the Hailin City unit weekly to check on her, or that [the first applicant] underwent re-education.

19. Fifth, at the Hearing [the first applicant] said that she had no difficulty leaving China to go to [Country 1] in 2011 because ‘at that state it was not a severe matter’. This appears inconsistent with the evidence set out above about [the first applicant]’s treatment by the Hailin City police given by both her and [the second applicant]. Some of the harm they claim [the first applicant] suffered, for instance regular arrests and re-education, appear to the Tribunal to be a very ‘severe matter’.

20. Sixth, regular arrests, weekly or random reporting requirements and house checks, and re-education would be serious and significant harm resulting from [the first applicant]’s petition in Beijing so it is reasonable to expect that [the first applicant] and [the second applicant] would have made these claims at the earliest opportunity in the Statements or at the Interviews. The Statements claim that [the second applicant] was concerned that the police might harm [the first applicant] indicating that [the first applicant] was not, in fact, harmed between her release from detention and her 2011 trip to [Country 1]. The lateness of these claims and the inconsistent evidence with the Statements and from [the second applicant] undermines the credibility of the claims, and [the first applicant] and [the second applicant] generally.

    Compensation

21. The Statements claim that [the first applicant] did not receive any compensation for the [Village] land.

22. First, [the first applicant] has continually said, at her Interview and at the Hearing, that her family never received any money in compensation for the [Village] land. However, at the Hearing [the second applicant] told the Tribunal that the government took the [Village] land in 1992 and the [development project] started [in] 1997. [The first applicant]’s family was given a migration certificate and a bank account for the purposes of compensation. He showed the Tribunal images of an account and a bank book which he said were from the government for the payment of compensation. He said that as a result of [the first applicant]’s petition in Beijing, in 2013 the government paid [the first applicant]’s family RMB[Amount] per person per year for two years. This is a significant inconsistency in [the first applicant]’s evidence and it has been viewed particularly adversely by the Tribunal when assessing her credibility as a witness.

23. Second, [the second applicant]’s evidence that [the first applicant] was successful in her petition to Beijing in February 2011 and that the government did pay compensation for the [Village] land undermines [the first applicant]’s claims that she was persecuted because she petitioned for compensation. The inconsistency, which goes to the centre of the claims that she suffered harm while in China, undermines all [the first applicant]’s and [the second applicant]’s claims of harm relating to the [Village] land.

    May to June 2011 – [The first applicant]’s 2011 Trip to [Country 1]

24. The Statements claim that [the second applicant] was ‘afraid’ that the police would treat [the first applicant] ‘like [her] husband did’ and so persuaded her to go abroad ‘to avoid the punishment’. [In] May 2011, [the first applicant] visited [Country 1] for three weeks. When the local police found out she had left China, they went to the Hailin City unit and bullied [Mr A]. They asked that [the first applicant] return home as soon as possible.

25. First, at her Interview [the first applicant] said that the reason that [the second applicant] wanted her to go to [Country 1] in May 2011 was because the police had told her that she could be summoned at any time, she was afraid that they would come to the Hailin City unit and ‘catch’ her, and she was in poor physical condition because of her detention. These claims were not made in the Statements. While it is not entirely clear what is meant in the Statements by the words the police would treat [the first applicant] ‘like [her] husband did’, it is clearly not the same as being summoned or picked up by police at any time.

26. Second, at the Hearing [the first applicant] said that the reason that [the second applicant] wanted her to go to [Country 1] in 2011 was because his friend had said that she was not ‘mentally good’ so it was better for her to hide somewhere, stay in a quiet place, and have a rest because she had too much stress. This was not the reason given in the Statements or by [the first applicant] and [the second applicant] at the Interviews. Also, when asked why [the first applicant] went to [Country 1] in 2011, she did not mention in her reasons any of the harm she claimed she suffered after being returned to Hailin City from Beijing. The Tribunal finds this omission to be of particularly concern. The fact that [the first applicant] would claim significant harm when queried about what she suffered after returning from Beijing in March 2011, but then not mention that same harm as a reason for fleeing to [Country 1] in May 2011 indicates that those claims were recent inventions made in order to make the claimed harm appear more serious. It suggests to the Tribunal that [the first applicant] is willing to change her evidence and generally be untruthful in order to achieve her desired migration outcome.  

27. Third, [the second applicant] told the Tribunal that he sent [the first applicant] to [Country 1] because after returning from Beijing she had to report to police weekly which made her scared of police and gave her psychological problems. This claim was not made in the Statements and was not made by [the first applicant] or [the second applicant] at the Interviews. It is also inconsistent with [the first applicant]’s evidence at her Interview and at the Hearing set out above.

28. Fourth, [the first applicant] and [the second applicant] made various claims (set out above) in the Interviews and at the Hearing about the harm [the first applicant] suffered, or that [the first applicant] and [the second applicant] feared [the first applicant] would suffer, in Hailin City before going to [Country 1]. [The second applicant] claims he was ‘afraid’ enough to arrange for [the first applicant] to leave China. These are significant claims of harm and appear inconsistent with [the first applicant]’s evidence at the Hearing that she had no difficulty leaving China when she went to [Country 1] in 2011 because ‘at that state it was not a severe matter’.

29. Fifth, neither [the first applicant] nor [the second applicant] mentioned at the Interviews or at the Hearing that the police pressured and bullied [Mr A] when they found out [the first applicant] had left China. In 2011, [Mr A] was an invalid who could not work and required [the second applicant]’s friend to care for him because of his stroke in 2007. Therefore, it is reasonable to expect that if [the first applicant]’s departure from China was responsible for the bullying of such a vulnerable loved one that claim would have been repeated at the Interviews or Hearing as part of the evidence about what happened when [the first applicant] went to [Country 1].

1. Sixth, the Statements claim that after being returned to Hailin City [the first applicant] was told by police not to go anywhere, [The second applicant] sent her to [Country 1] anyway to avoid harm from police, and in doing so [Mr A] ended up being bullied by police. This is a serious ramification given [Mr A]’s claimed vulnerabilities and so should have planted squarely in [the first applicant]’s and [the second applicant]’s minds what led them to take an action with such a harmful result for a person as close to them as [Mr A]. Therefore, it is reasonable to expect that [the first applicant] and [the second applicant] would give consistent evidence about exactly what prompted [the second applicant] to send [the first applicant] to [Country 1]. The fact that they were unable to give consistent answers and that [the first applicant]’s answers changed over time undermines the claim that the 2011 trip to [Country 1] was to avoid harm in China. It also undermines [the first applicant]’s and [the second applicant]’s credibility as witnesses generally.

2. Seventh, neither [the first applicant] nor [the second applicant] mentioned at the Interviews or at the Hearing that the police told [the first applicant] not to go anywhere. The fact that [the first applicant] was instructed not to go anywhere directly led to [Mr A] being bullied and [the second applicant] and his company having to give a personal guarantee about [the first applicant]’s future conduct. [The second applicant] also claimed at the Hearing that the guarantee led to the harassment and eventual closure of his business. Therefore, if it were true, it is reasonable to expect that such a pivotal claim would have been repeated in the evidence about what happened after [the first applicant] was returned from Beijing to Hailin City and why she then went to [Country 1].

3. Eighth, when asked at the Hearing what happened when the police found that [the first applicant] was not at the Hailin City unit in May 2011, [the second applicant] said only that he told the police that he had sent [the first applicant] on a vacation and the police just had to accept it because [the first applicant] was not there. He failed to mention that the police pressured and bullied [Mr A] and said [the first applicant] should return to China as soon as possible.

   June to December 2011 – [The first applicant]’s 2011 Return to China from [Country 1]

4. The Statements claim that [the second applicant] and his company provided a ‘personal reputation guarantee’ for [the first applicant] so she could return to China and she returned home [in] June 2011.

5. First, at her Interview and at the Hearing [the first applicant] said that [the second applicant] and his company paid a RMB[Amount] bond so she could return to China in June 2011. This is inconsistent with [the second applicant]’s evidence to the Tribunal that he paid the RMB[Amount] as a bribe to the Hailin City police in January or February 2011 so they would not illegally detain [the first applicant]. It is also inconsistent with the claims in the Statements that [the second applicant] and his company only had to sign a guarantee in 2011 and he did not pay the RMB[Amount] bond to secure [the first applicant]’s safe return from [Country 1] until after her second trip in 2012.

6. Second, [the second applicant] told the Tribunal that when [the first applicant] returned to China in June 2011 she had to continue to report to the police weekly and the police came to the Hailin City unit and banged on the door, sometimes after [the first applicant] was asleep or at midnight, to check that she was at home. This response to [the first applicant]’s departure does not appear consistent with [the first applicant]’s evidence that she had no trouble leaving because it was ‘not a severe matter’.

7. Third, [the first applicant] and [the second applicant] claim that they were sufficiently afraid that [the first applicant] would suffer harm (or continue to suffer harm) that she fled to [Country 1] in violation of an instruction to not travel. This resulted in her invalid husband being bullied, and [the second applicant] and his business being harassed (see below) and/or having to provide a personal guarantee about [the first applicant]’s future conduct in China. There is also a claim that her 2011 trip to [Country 1] resulted in [the first applicant] being required to report weekly to police and being harassed by police at home. Because these are not only major claims of harm, but also the only claims of harm in the latter part of 2011, it is reasonable to expect that, if true, [the first applicant] and [the second applicant] would have given consistent evidence about them over time. The inconsistencies and omissions from their evidence undermine that these claims can be believed and bring into question whether they are reliable witnesses generally.

   January 2012 and February 2012 – The CCTV Journalist and [The first applicant]’s 2012 Activities

8. The Statements claim that [the first applicant] went to [Country 1] in 2012 because she spoke to a CCTV journalist who reported her to the Hailin City government and a few days later the ‘local police’ went to the Hailin City unit looking for her. At the time [the first applicant] was staying at [the second applicant]’s Beijing home and only [Mr A] was at home. He rang [the second applicant] to tell him about the situation.

9. First, at her Interview [the first applicant] said that when the CCTV journalist reported her to the government, she saw that the police were looking for her, so she hid herself and then she went to [the second applicant]’s Beijing home to hide. This is inconsistent with the Statements which claim that she was already at [the second applicant]’s Beijing home when the police went to the Hailin City unit looking for her. It is also inconsistent with her evidence at the Hearing set out below.

10. Second, at the Hearing [the first applicant] did not mention anything about the incident with the CCTV journalist, that she was at [the second applicant]’s Beijing home when the Hailin City police came looking for her, or that she went into hiding in Hailin City and then fled to [the second applicant]’s Beijing home when she saw the police were looking for her. [The first applicant] gave a very different accounting of her activities in the beginning of 2012 and a completely different reason for her 2012 trip to [Country 1] (see below). In the Statements and at her Interview the CCTV journalist and the Hailin City police’s pursuit of her were key features of her story about why she had to go to [Country 1] in February 2012. That they were completely missing from her evidence at the Hearing appreciably undermines her credibility.

11. Third, at the Hearing [the first applicant] said that when she returned from [Country 1] in 2011 people still wanted her to petition. Around Chinese New Year, in January 2012, she and other petitioners hired a bus to go to Beijing to petition for compensation for the [Village] land because she was too scared to take the train. The Heilongjiang province police stopped them and escorted the bus back to Hailin City. [The first applicant] said that she was detained for more than 20 hours at a police station. This made her scared so she left for [Country 1] six days later because their surveillance of [the first applicant] might have started at any time. [The first applicant] confirmed to the Tribunal that she needed to leave before surveillance on her started to avoid being summoned again for re-education.

12. This is a completely different story to the one about the CCTV journalist and hiding at [the second applicant]’s Beijing home in the Statements and given at her Interview. There is no claim in the Statements and neither [the first applicant] nor [the second applicant] claimed at the Interviews that this was the reason for [the first applicant]’s trip to [Country 1] in February 2012. Such a staggeringly changed account of her activities in early 2012 cannot help but undermine all these claims and [the first applicant]’s credibility generally, particularly since the idea that she would provide evidence on her reason for going to [Country 1] in her Statement and Interview but somehow forget to include that she had been detained and was fleeing from surveillance is implausible.

13. Fourth, [the first applicant] told the Tribunal that the provincial police knew about the bus because all the people who wanted to petition were on the bus and the local government were watching them all, and also there is a record if a bus is hired. This is inconsistent with [the first applicant]’s evidence at the Hearing that she, as one of those people on the bus, was not under surveillance before she went to [Country 1] and she had to leave Hailin City before any surveillance of her started to avoid re-education.

14. Fifth, at the end of the Hearing [the first applicant] changed her evidence and told the Tribunal that [the second applicant] paid a RMB[Amount] bond when she returned to China after her 2012 trip to [Country 1] so that she would no longer be watched, indicating that before going to [Country 1] in 2012 she was being watched. This is inconsistent with her evidence that she was not under surveillance before going to [Country 1] and needed to get out of China quickly to avoid being watched.

15. Sixth, [the second applicant]’s evidence at his Interview that [the first applicant] was only detained twice, once in the 2000s and once in 2011, is inconsistent with her claim that she was also detained in 2012.

16. Seventh, [the second applicant] confirmed at the Hearing that because he paid RMB[Amount] he would not let [the first applicant] petition anymore after she returned from Beijing in February 2011. This is inconsistent with [the first applicant]’s claim at the Hearing that she petitioned after she got back from her 2011 trip to [Country 1], specifically in January 2012 six days before going back to [Country 1] a second time.

17. Eighth, at the Hearing [the first applicant] said that she was not under surveillance for the six days before she left for [Country 1] on [in] February 2012 and she needed to leave Hailin City before surveillance started to avoid re-education. This is inconsistent with the Statements which claim that in the days just before going to [Country 1] she was in Beijing, not Hailin City. It is also inconsistent with her evidence at her Interview that in the days before her 2012 [Country 1] trip she was in hiding in Hailin City because the police were looking for her, indicating she was being watched, which is why she went to Beijing. Further, her claim that she was avoiding re-education is inconsistent with her evidence that after her first trip to [Country 1] she had to report weekly to police.

18. Nineth, [the second applicant] told the Tribunal that when [the first applicant] returned to China in June 2011 she had to continue to report to the police weekly and the police regularly came to the Hailin City unit and banged on the door, sometimes after [the first applicant] was asleep or at midnight, to check that she was at home. He did not mention any of the claims that [the first applicant] made about petitioning or being detained in January 2012. This evidence also appears inconsistent with [the first applicant]’s claims at the Hearing that she was not under surveillance at the time.

19. Tenth, [the second applicant] told the Tribunal that because the police continued to harass and check up on [the first applicant], she was constantly scared and not in good mental health. That is why he sent her back to [Country 1] in February 2012. He did not mention anything about the incident with the CCTV journalist, the local police looking for [the first applicant], her hiding in Hailin City or being at his home in Beijing either after being in hiding or not. Nor did [the second applicant] make any mention of the story [the first applicant] told the Tribunal about going on a bus with others to petition the Beijing government and then being detained by police. The fact that [the second applicant]’s evidence did not corroborate any of the evidence in the Statements or [the first applicant]’s evidence at her Interview or at the Hearing significantly undermines those claims as well as his and [the first applicant]’s general credibility. It does not give the Tribunal confidence that they are truthful witnesses since the evidence relates to the reason for the major event of sending [the first applicant] out of the country almost nine months for her own safety.

20. Eleventh, [the second applicant] told the Tribunal that when [the first applicant] went to [Country 1] in February 2012 the Hailin City police came to question him and they harassed his business because they could not find [the first applicant]. This claim does not appear in the Statements and was not made by either [the first applicant] or [the second applicant] at the Interviews. [The second applicant] did not make this claim until after the Tribunal questioned whether he personally had suffered any harm because of [the first applicant]’s activities and trips to [Country 1]. It is reasonable to expect that if the claim was true that it would have been made at a considerably earlier time that late in the Hearing. The lateness of the claim and the circumstances in which it was made leads the Tribunal to doubt its veracity and it adds to the Tribunal’s concerns that [the second applicant] is willing to manufacture claims to suit his perception of what will best achieve his preferred migration outcome.

    The RMB[Amount] Bond

21. The Statements claim that [the second applicant] was so worried about [the first applicant] in [Country 1] in 2012 that he went to friends who have a relationship with the Hailin City government for help. They said that if he wrote a letter guaranteeing that [the first applicant] would not petition to the upper-level government she could return to China. [The second applicant] wrote the letter and paid a ‘penalty bond’ of RMB[Amount] so [the first applicant] could return home to the Hailin City unit [in] September 2012. The evidence at the Interviews and at the Hearing about the RMB[Amount] is of particular concern to the Tribunal.

22. First, at her Interview [the first applicant] said that she had no problems returning to China in September 2012. She stated that as a woman she is very skinny so they did not care about her. She did not mention that [the second applicant] had to write a guarantee and pay RMB[Amount] so she could re-enter China. This is inconsistent with the Statements as well as [the first applicant]’s and [the second applicant]’s evidence at the end of the Hearing.

23. Second, at the Interview, when asked about her return from [Country 1] in 2011, [the first applicant] said that ‘my son bailed me out’. It was clear in her evidence that she was referring to the RMB[Amount] bond lodged by [the second applicant] as a guarantee against her future conduct. This is inconsistent with the Statements and [the second applicant]’s evidence at the Hearing set out below.

24. Third, [the first applicant] told the Tribunal that [the second applicant] paid a RMB[Amount] ‘bond’ before her return to China from [Country 1] in 2011. This is inconsistent with the Statements which claim [the second applicant] and his company only made a personal guarantee in 2011. According to the Statements, he provided the RMB[Amount] bond (and a personal written guarantee) so [the first applicant] could return from [Country 1] in 2012.

25. Fourth, at the Hearing, when asked if she had any problems departing or returning to China, [the first applicant] said that [the second applicant] had submitted a document to the ‘notoritory’ office that she would not lodge any further appeals. When asked if he had lodged any money [the first applicant] at first said she did not know. She then changed her evidence and said, ‘that’s the money for bail’. When asked how much [the second applicant] had paid ‘for bail’, [the first applicant] asked, ‘you mean the money which bailed me out?’ She eventually confirmed that [the second applicant] had signed a guarantee and paid RMB[Amount] in the name of his company. [The first applicant]’s evasive and changing evidence undermines her credibility and the likely veracity of the claims. She was also inconsistent with the claims in the Statements and the evidence below given by [the second applicant] at the Hearing.

26. Fifth, at the Hearing neither [the first applicant] nor [the second applicant] claimed that [the second applicant] had to pay RMB[Amount] so [the first applicant] could re-enter China in September 2012 until after the Tribunal pointed out that [the first applicant]’s evidence was that she had had not trouble entering China in 2012 and the RMB[Amount] has been paid in 2011, which is inconsistent with the Statements on these points. After the Tribunal pointed out the discrepancy in [the first applicant]’s evidence both she and [the second applicant] changed their evidence and said that [the second applicant] had paid RMB[Amount] in 2012 so she could re-enter China safely and she would not have been able to return to China if he had not.

27. Sixth, [the second applicant] told a very different story about the RMB[Amount] at the Hearing. He said that he paid RMB[Amount] in 2011 when [the first applicant] was detained in Beijing for 15 days and the Hailin City police brought her back to the Hailin City unit. He said that if he had not paid the money she would have been detained ‘continuously’. It was not a bond to Beijing to get [the first applicant] out of detention; he paid the local government when the police requested it to stop them from illegally detaining [the first applicant] because she had offended them and they did not want to give her an ‘easy way to go’. When asked if this was an official bond or a bribe, he said it was a bribe. He paid the RMB[Amount] to the police station. He did not know how it was distributed. This is inconsistent with the claims in the Statements that the RMB[Amount] was an official ‘penalty’ paid in 2012. It is also inconsistent with [the first applicant]’s evidence at her Interview and at the Hearing that it was paid in June 2011 either to secure her return from [Country 1] or to stop police from watching and summoning her after her return in 2011.

28. Seventh, at the Hearing, as well as saying that [the second applicant] paid the RMB[Amount] as a bond so that she could return to China, [the first applicant] also said that he paid it so the police would not watch or summon her anymore. However, later in the Hearing she said that while she did not have to continue to attend re-education, the police continued to watch and summon her which is inconsistent with reasons she gave for paying the RMB[Amount] bond. [The second applicant] did not claim at his Interview or at the Hearing that he paid the RMB[Amount] so the police would stop watching [the first applicant] and this reason does not appear in the Statements. It is also inconsistent with [the second applicant]’s evidence that [the first applicant] did have to continue to report weekly to police and they did continue to watch her.

29. Eighth, the various claims by [the first applicant] and [the second applicant] that the same RMB[Amount] bond was paid to secure [the first applicant]’s return to China and to protect [the first applicant] from harm by the local police is inconsistent with [the first applicant]’s claim that she had no trouble leaving China to come to Australia because the border authorities are different from the local police and they do not communicate. If this were true one RMB[Amount] bond could not have accomplished both goals which would involve both the border authorities and local police.

30. Ninth, [the first applicant] told the Tribunal that there was no official procedure for payment of the RMB[Amount] bond, ‘they’ just said that if [the second applicant] paid the bond they would not summon [the first applicant] anymore. [The second applicant] claimed that it was not an official bond, but a bribe. This evidence appears inconsistent with what [the first applicant] said at her Interview, that the guarantee and bond were submitted to a ‘notoritory’ office, as well as the claim that it allowed [the first applicant] to move in and out of China without any problems from government border control.

1. Eighth, [the first applicant] did not express any fear of harm because of the events she and [the second applicant] claim occurred in 2011 and 2012 or in relation to the resumption of the [Village] land and/or [the first applicant]’s pursuit of compensation for that land either at her Interview or at the Hearing, although she did claim she would be prevented from petitioning further and required to report in relation to that future conduct. [The second applicant] in his Interview stated only that he fears the government has an issue with him because he ‘sponsored [the first applicant] based on [his] name and [his] company’s name’ and without that ‘sponsorship’ [the first applicant] would not have been able to return from [Country 1].

2. Ninth, at his Interview [the second applicant] said that ‘they’ will treat him the way they will treat [the first applicant] because he provided her with a guarantee. He said that he wanted to protect [the first applicant] and so the government caused trouble for his business. He told the delegate that he fears the government will continue to cause problems for his company, but also said that he does not have a company because he sold it. He did say that he could not ‘do any business now’ but did not explain why or exactly what this means. Late in the Interview [the second applicant] stated that the difficulties caused to his business because of the guarantee means he can no longer operate a business in China. He did not explain why exactly this might constitute harm.

3. Tenth, it was only late in the Hearing that [the second applicant] told the Tribunal that he came to Australia because he could not open another business after his [Business 2] closed in 2013. He confirmed that he decided to come to Australia in January 2014 because he could not open a new business. This is inconsistent with the Statements which claim that [the second applicant] did have a business and that [the first applicant] did not decide to come to Australia until after the Chaoyang district government tried to force [the second applicant]’s company out of business sometime after February 2014. Also, [the second applicant] did not mention anything about the Hailin City unit being demolished or [the first applicant] having to sign, or being harmed for not signing, the unit documents.

   Other Inconsistencies

4. Below are other inconsistencies between [the first applicant]’s and [the second applicant]’s evidence at the Interviews or Hearing and in their PVAs and Form 80s. This information is relevant because although these may be more minor inconsistencies that do not go directly to their claims for protection (although some do), they indicate that [the first applicant] and [the second applicant] have been generally untruthful during the course of their application and have endeavored to mislead DHA and the Tribunal on even basic details about their lives in China. This undermines their credibility as witnesses and brings into doubt whether the Tribunal can believe any of their evidence, including the evidence that directly supports their protection claims. These inconsistencies and the changing evidence create a picture of witnesses who are attempting to keep from DHA and the Tribunal the fact that their applications for protection, including their claims, have been manufactured, possibly by a paid third party. Therefore, the evidence, which is full of information that is not true, but which [the first applicant] and [the second applicant] may believed will give them the best chance of being granted a Protection visa, often does not fit together at the minutia.

5. First, [the second applicant] told the Tribunal that he decided to come to Australia in January 2014. This is inconsistent with the claims that it was the harassment by the Hailin City government and bullying in Beijing by the Chaoyang district government well after the February 2014 visit from the neighbourhood committee that led to the decision to leave China. It is also inconsistent with [the first applicant]’s evidence that she decided to come to Australia in April or May 2014. When this was put to [the first applicant] and [the second applicant] at the Hearing [the second applicant] said that he had already considered leaving China. But this is inconsistent with the reasons he gave for leaving China in his Statement which he told the Tribunal he wrote and is correct.

6. Second, at the Hearing [the second applicant] claimed that he researched the PVA form in China where, he said, there were Chinese pamphlets going around and even information in the newspaper. This is inconsistent with later evidence he gave at the hearing that he did not decide to apply for protection until a month after arriving in Australia and that he did not do any research in China because he could not find anything online. This is also inconsistent with the claims in the Statements that he and [the first applicant] did not consider seeking protection until they arrived in Australia and called [Mr A] who told [the first applicant] that an officer had come to the Hailin City unit looking for them.

7. Third, at the interview, [the second applicant] claimed that he filled in his own PVA using his mobile phone to translate. When asked if he had any help he said some of the employees where he works know English, but when asked for a name he said they do not speak English, they just ‘know A, B, C, D, E’. When the Tribunal put discrepancies between their evidence and the PVAs and Form 80s to [the first applicant] and [the second applicant], [the second applicant] said that he did not think it was necessary to explain because he filled out the form himself and everything on the form is true. This is inconsistent with the PVAs which state that someone named [Mr D] assisted [the first applicant] and [the second applicant] with the PVAs. And at the Hearing [the first applicant] said that [Mr D] assisted with the PVAs. [The second applicant] then changed his evidence and said someone else filled out the PVAs and Form 80s, but he wrote his Statement and [Mr D] translated it.

8. Fourth, [the first applicant] said that she met [Mr D], who is from Melbourne, in Australia through a friend. When the Tribunal pressed [the first applicant] for more details about [Mr D] she then said that she does not really know him. It is [the second applicant] who knows him and she rarely speak to [the second applicant] and does not really know anything. The Tribunal notes that [the first applicant] lives with [the second applicant] and he is her sole source of support. It finds it implausible that they rarely speak. Although [the first applicant] told the Tribunal that [Mr D] did not read the contents of the application back to her, she confirmed that she told him what had happened and the things she said he wrote down. [The first applicant] was adamant at the Hearing that those things are all true. However, much of the information set out above is inconsistent with the PVAs, Form 80s, and the Statements.

9. Fifth, at the Hearing [the second applicant] eventually admitted that he paid [Mr D] to help with the PVAs. [The second applicant] told [Mr D] what to put in the PVAs, Form 80s and the Statements, and [Mr D] wrote it down then read it back to [the second applicant]. He told the Tribunal that he is aware of what is in the PVA, Form 80, and Statement and said their contents is correct. However, much of the information set out above is inconsistent with the PVAs, Form 80s, and the Statements.

10. Sixth, [the second applicant] told the Tribunal that [the first applicant] did not talk to [Mr D]. He went to see [Mr D] by himself. This is inconsistent with what [the first applicant] told the Tribunal. [The second applicant] then changed his evidence and said that [the first applicant] was at the appointment too, but he did most of the talking. This is also inconsistent with [the first applicant]’s evidence that she told [Mr D] what to put in her PVA, Form 80, and Statement.

11. Seventh, at the Hearing [the first applicant] told the Tribunal that she cannot read or write Chinese and did not finish primary or secondary school. [The first applicant] was born in [Year], then in 1966 there was the Cultural Revolution, so she only had [Number] years of study and did not learn much. [The first applicant] also said that she was really scared when she got arrested because she is not educated like other people. This is inconsistent with the PVA and Form 80 which state that [the first applicant] attended and completed [Primary School] from [Year] to [Year] and [Middle School] from [Year] to [Year] and that she speaks, reads, and writes Chinese. It is also inconsistent with [the first applicant]’s claim in the PVA and Form 80 to have been Chairman of [Company 2].

12. Eighth, at the Hearing [the first applicant] said that just before coming to Australia she was not working because she was staying at home with psychological problems that prevented her from doing work. This is inconsistent with the PVA and Form 80 which states that from 2012 to 2014 [the first applicant] was Chairman of [Company 2] in Fengtai district, Beijing. [The second applicant] was the General Manager. When asked about her last job [the first applicant] said it was in [Mr A]’s [Business 2] which was sold in 2007. The Tribunal asked when it was then that she worked for [the second applicant]’s company and she said she could not remember. This is also inconsistent with the PVA and [the first applicant]’s evidence at the Hearing that as the CEO and legal representative of [the second applicant]’s company she had a supervisory role. [The first applicant] then changed her evidence and said that [the second applicant] had taken her identification and got a bank loan. She said the company is legally registered in her name, but she never actually worked for the company. This is not only inconsistent with the claim [the first applicant] had a supervisory role, but also her evidence that she could not remember when she worked for the company, which assumes [the first applicant] did work for the company at some point. It is also inconsistent with [the second applicant]’s evidence that he never had a company in Fengtai district, Beijing.

13. Ninth, at the Hearing [the first applicant] said that before 1993 she was a farmer, but once they moved to Hailin City she did casual jobs like working in a [Workplace 4]. However, they fired her because she was uneducated and that is why they opened the [Business 2]. This is inconsistent with the PVA and Form 80 which states that the only [workplace] [the first applicant] worked for was [Workplace 1] from 1977 until 2002, while she claimed to be a farmer. The PVA and Form 80 state that from 2002 until 2012 [the first applicant] was the manager of a [Business 1] company, [Company 1], before becoming Chairman of [the second applicant]’s company, [Company 2], in 2012. This is also inconsistent with [the second applicant]’s evidence at the Hearing that [Mr A] started the [Business 2] in 1993 when they moved to Hailin City not after a period of [the first applicant] working at casual jobs and being fired from a [Workplace 4].

14. Tenth, at the Hearing [the second applicant] told the Tribunal that he owned and ran a [Business 2] in Hailin City from 2011 to 2013. This is inconsistent with the information in the PVA and Form 80 which state that he was the General Manager of [Company 2] from 2009 until 2014. [The first applicant] never mentioned in her Interview or at the Hearing that [the second applicant] ran a [Business 2] in Hailin City and only claimed that he had a [Business 3] in Beijing. [The second applicant] said he did not run a [Business 3] in Beijing. He was an investor in his friend’s [Business 3] but did not have anything to do with it except on paper.

15. Eleventh, in the Statements it says that the Hailin City unit has one bedroom, but [the first applicant] told the Tribunal that it has two bedrooms.

16. Twelfth, in the PVAs and Statements it says that the [Village] land was taken and they had to move to Hailin City in 1992, but [the first applicant] told the Tribunal that they bought and moved into the Hailin City unit in 1993.

17. Thirteenth, at the Hearing [the second applicant] said that [the first applicant] went to the same place on both her trips to [Country 1] and stayed with a friend. But [the first applicant] gave the Tribunal the names of two different places that she went to in [Country 1] and said she stayed in a motel on her second trip.

    Findings and Reasons

18. The Tribunal has serious concerns about [the first applicant] and [the second applicant] truthfulness and based on all the evidence set out above viewed cumulatively and as a whole it finds that they are not credible witnesses. All the inconsistencies, omissions and contradictory information shows that both [the first applicant] and [the second applicant] have demonstrably attempted to mislead the Tribunal about their circumstances in China. Although there are a large number of discrepancies, like the changing or adding of significant claims, that in themselves undermine [the first applicant]’s and [the second applicant]’s credibility, the sheer level of confusion and shifting nature of the evidence means any reliable evidence is insufficient and inadequate to enable the Tribunal to establish any relevant facts. The Tribunal cannot depend on any of their evidence being truthful.

19. The Tribunal rejects all of [the first applicant]’s and [the second applicant]’s evidence, including that provided in their PVAs and Form 80s, the Statements, Interviews and at the Hearing related to the [Village] land and the pursuit of compensation or the demolition of the Hailin City unit. It rejects all their evidence related to or provided in support of any claims made for protection, including the other more general claims.

20. For these reasons, the Tribunal does not accept that [the second applicant]’s evidence corroborates [the first applicant]’s claims or that [the first applicant]’s evidence corroborates [the second applicant]’s claims. Nor does it accept that [the first applicant]’s evidence supports her claims for protection or that [the second applicant]’s evidence supports his claims for protection.

21. The Tribunal finds that none of the evidence provided in support of [the first applicant]’s claims that she will suffer serious or significant harm in the foreseeable future is true. It further finds that none of the evidence provided in support of [the second applicant]’s claims that he will suffer serious or significant harm in the foreseeable future is true.

    Findings of Fact on Relevant Matters

22. The Tribunal accepts the claim that [the first applicant] is [the second applicant]’s mother and finds that they live in the Hailin City unit together with [Mr A]. The Tribunal does not accept any other claims.

23. After putting its mind to each of [the first applicant]’s and [the second applicant]’s claims, and based on its adverse credibility finding above and its rejection of all their evidence in support of those claims, the Tribunal rejects all other claims. This includes all the other claims made in the Statements and at the Interviews, including the more general claims about fearing the Communist Party and police not pursued by them at the Hearing. It also includes all the claims, including the additional claims, made at the Hearing.

24. In light of its rejection of all their protection claims, the Tribunal finds that [the first applicant] and [the second applicant] will not suffer any harm, let alone serious or significant harm, in China for any reason in the foreseeable future.

    Refugee Criteria

25. Australia is a party to the Convention and has protection obligations in respect of people who are refugees as defined in Article 1. Article 1A(2) 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.

26. The four key elements of the Convention definition are that:

    ·     an applicant must be outside his or her country of nationality.

    ·     an applicant must fear persecution. Persecution involves ‘serious harm’, in the nature of that listed in s.92R(2) of the Act, that is the result of systematic and discriminatory conduct: s.91R(1)(b) and (c) of the Act.

    ·     the persecution must be essentially and significantly for one or more of the reasons in the Convention - race, religion, nationality, membership of a particular social group, or political opinion: s.91R(1)(a) of the Act.

    ·     an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear.

27. A person has a ‘well-founded fear’ of persecution if he or she holds a genuine fear founded upon a ‘real chance’ of suffering serious harm for a Convention reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. However, a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

28. The Tribunal has found that [the first applicant] and [the second applicant] will not suffer any harm if they are returned to China. It, therefore, finds that they do not have a real chance of suffering any harm, let alone serious harm, for any reason in the foreseeable future.

29. Since there is no real chance that either [the first applicant] or [the second applicant] will suffer any serious harm, the Tribunal is not satisfied that they have a well-founded fear of persecution for a Convention reason in the foreseeable future in China.

    Complementary Protection Criteria

30. Section 36(2)(aa) requires an applicant to have a ‘real risk’ of suffering ‘significant harm’ in his or her receiving country. ‘Significant harm’ is exhaustively defined in s.36(2A) and s.5(1) of the Act. Section 36(2B) of the Act sets out certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country.

31. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[15] For the reasons above the Tribunal has found that there is no real chance [the first applicant] and [the second applicant] will suffer any harm, let alone significant harm, if returned to China in the foreseeable future.

    [15] MIAC v SZQRB [2013] FCAFC 33.

32. Therefore, the Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to China, there is a real risk that either [the first applicant] or [the second applicant] will suffer significant harm.

    Conclusions

33. For the reasons given above, the Tribunal is not satisfied that either [the first applicant] or [the second applicant] are people in respect of whom Australia has protection obligations under s.36(2)(a).

34. Having concluded that [the first applicant] and [the second applicant] do 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 they are people in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

35. Therefore, [the first applicant] and [the second applicant] also cannot satisfy 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. In any event, for the reasons given above the Tribunal is not satisfied that they are members of the same family unit and so it follows that they are unable to satisfy the criterion set out in s.36(2)(b) or (c) of the Act.

36. As they do not satisfy the criteria for a protection visa, [the first applicant] and [the second applicant] cannot be granted the visas.

    DECISION

    The Tribunal affirms the decisions not to grant the applicants protection visas.

    Mireya Hyland
    Member