1608491 (Refugee)

[2017] AATA 1347

1608491 (Refugee) [2017] AATA 1347 (1 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1608491

COUNTRY OF REFERENCE:                   China

MEMBER:Peter Vlahos

DATE:1 August 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 01 August 2017 at 2:30pm

CATCHWORDS

Refugee – Protection visa – China – Unlawful citizen – Tax evasion and money laundering – Credibility issues

LEGISLATION

Migration Act 1958, ss 5(1), 36, 65, 91R, 91S, 499
Migration Regulations 1994, Schedule 2

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant, who claims to be a citizen of China, applied for the visa [in] June 2014 and the delegate refused to grant the visa [in] May 2016.

3. The applicant appeared before the Tribunal on 10 February 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

   RELEVANT LAW

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

   Refugee criterion

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

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

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

8. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

9. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

10. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

11. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

12. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

13. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

14. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

15. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

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

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

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

    Section 499 Ministerial Direction

19. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Country of Nationality and Identity

20. Based on copies of the passports of the applicant, which were provided to the Department of Immigration and Border Protection (the ‘Department’), (see, Department File, CLF[number], folio 35-36) the applicant’s oral and written evidence, and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of Peoples’ Republic of China (‘China’) and assessed his claims against that country in relation to ss.36(2)(a) and 36(2)(aa) of the Migration Act (Cth, as amended). On the basis of the above-mentioned evidence, the Tribunal further accepts his identity as claimed.

21. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to material referred to in the delegate’s decision. The applicant provided a copy of the departmental record of decision to the Tribunal with the review application.

22. The issue in this case is whether Australia has protection obligations in respect of the [applicant].

23. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background

24. The applicant is a Chinese national born in Fujian province, China. The applicant claims that he was granted a permanent residency in [Country 1] for employment purposes however his residency rights have since elapsed with the expiration of his [Country 1] Passport (Department file, folio [35]-[36]). [In] August 2005, the applicant travelled to Australia and was granted a three-month [temporary visa]. [In] September 2005, the applicant travelled to Australia and departed Australia [in] September 2005.  [In] November 2005, the applicant was granted a [temporary] visa. [In] March 2006, the applicant travelled to Australia departing [in] March 2006. [In] April 2006 the applicant was granted [a temporary] visa. The applicant travelled on this visa to Australia [in] June 2006. The applicant became an unlawful citizen in Australia in September 2006. Department records note that the applicant had not departed from Australia since his arrival [in] June 2006. [In] June 2014 the applicant lodged a Protection visa (subclass 866).

    Applicant’s evidence at the scheduled Hearing

    The applicant’s claims for protection

25. The applicant’s claims for protection can be summarised as follows:

    §  The applicant claimed that the Chinese Government framed his [relative] with tax evasion and money laundering. The applicant’s [relative] did not acknowledge the charges he was accused of but was still sentence to jail.

    §  The applicant is afraid to call his [relative] to find out the details of the case against him and his [relative] is currently in prison serving a sentence for taxation avoidance.

    §  The applicant claimed that the authorities in China are looking for him because he co-owned the business which was under investigation with his [relative] for taxation avoidance.

    §  The applicant claimed that although he and his [relative] had legally paid their taxes to the government, the government accused them of money laundering and taxation avoidance.

    §  The applicant claimed that he and his [relative] were accused of not paying their share of tax for a four year period and the government had been investigating them in 2004 or 2005.

    §  The applicant claimed that he [relative] had been arrested in [a certain] Province between 2012 and 2013.

    §  The applicant also claimed that he had been in Australia for almost ten years and had been under immense pressures. The applicant had also brought a small [business] in Australia and he is owed AUD [amount] and AUD [amount] in two separate businesses and has commenced legal proceedings to recovered this money which are pending.

    §  The applicant claims protection for political reasons.

26. The Tribunal asked the applicant whether he wished to add, vary or change his claims as submitted in his application and later elaborated on to the Department at his interview which was held [in] May 2016 and the Tribunal was told he had no further claims to make

27. The Tribunal was told that the applicant lived in Fujian province China for most of his life until he left to live in [Country 1] in 2006. He lived in [Country 1] for one to two years and then left for Australia. As noted in the applicant’s background (at paragraph [24]) the applicant made a number of [visits] to Australia in the period 2005 to 2006 and has remained in Australia since June 2006.

    The applicant and his business interest in China and problems

28. While in China, the applicant run ‘[a store]’ which supplied [goods] to local businesses. This business was co-owned with his [relative]. The [business] was established in 1998 and through the years provided the applicant and his [relative] with a reasonable income. The Tribunal was told that while the business operated sufficiently well, it was plagued by an alleged tax dispute with the Chinese authorities who claimed that the applicant’s business had not paid any taxes between the years 1998-2006 because no tax returns were lodged.

29. According to the applicant both he and his [relative] did make payments of tax when required but the ‘authorities’ had deemed it “insufficient”. In 2006, the Tribunal was told that his [relative] was arrested by the authorities and sentenced to jail for tax evasion. The Tribunal was told by the applicant that at first his [relative] was sentenced to life imprisonment or to fifteen (15) years imprisonment – the applicant was ‘not sure’ but he was sure that his [relative] was currently in prison serving a sentence for tax evasion. The Tribunal was also told that he had also been charged as the other “legal person” involved in the business and the authorities “had tried to arrest” the applicant.

30. The applicant was asked when the authorities attempted to arrest him. The applicant told the Tribunal that it was in 2006 when (according to the applicant) his [relative] was sentenced to a term in prison. The applicant then told the Tribunal that the authorities tried to arrest him in ‘2007’. The Tribunal sought from the applicant a clarification of his statement. From the documentation before the Tribunal, in particular, the Department’s decision record refusing the applicant’s application for protection visa, it noted that the applicant had been in Australia (illegally) since June 2006, how was it possible to be arrested in 2007 when the applicant was outside Chinese territory. The applicant then told the Tribunal that in 2007, he found out about his warrant of arrest.

31. The Tribunal asked the applicant did he receive any documents from the Chinese authorities concerning the allegations of tax evasion. The applicant responded by telling the Tribunal that there were documents concerning this issue but they were in China and he told the Tribunal that he could get them. The Tribunal requested from the applicant a copy of these documents and in particular, the documents concerning his [relative] sentencing to term in jail. The applicant agreed to do so provided the Tribunal allowed for time for these documents to be obtained.

32. The Tribunal was also told that the business was no longer in operation because it had been “sealed” by the Chinese government for non-payment of state taxes.

33. The Tribunal asked the applicant what was the amount that was owed in unpaid taxation to the Chinese state by the business. The applicant told the Tribunal first, that the “tax owed” was “RMB[amount]” and then he qualified his response by saying “[I] do not know, the exact amount…could be around RMB[amount]…” The Tribunal asked the applicant had any efforts been made to repay any tax owed to the Chinese authorities. The applicant’s response was that he “…wanted to… [But] because they tried to arrest me… [I] did not…”

34. Again, the Tribunal asked the applicant are there any documents proving this money is owed to the Chinese Taxation Office. The applicant told the Tribunal that “…I think it appeared in the sentencing document…” which was still (according to the applicant) at the applicant’s home in China.

35. The Tribunal asked the applicant to clarify at what period of time did he lived in [Country 1]. His response was that he left Fujian to live in [Country 1] in “…in 2006” and he lived there for one to two years. Then, the applicant told the Tribunal “…I do not think it was 2006 … it was 2003…”  

36. The Tribunal asked the applicant why was it that his [relative] was jailed and not the applicant at that time. The applicant explained his situation as at the time of his [relative]’s trial and imprisonment as “…I was in [Country 1] when my [relative] was arrested…”’ According to the applicant, he had “…fled” to [Country 1]. [Details deleted].

    Contacts with family and his [relative] in China since his arrival in Australia

37. The applicant has no contact with his [relative] but has been in touch (at various times) with his parents. His parents have been ‘questioned’ by the authorities on the “whereabouts” of the applicant but no other questions.

    Explanation for the applicant’s previous visits to Australia

38. The applicant confirmed for the Tribunal that he had made four visits to Australia as noted in paragraph [22] and his reason for this was that on each occasion he was stopping over in Australia in order to continue to travel to [another country] where his [sibling] is currently living.

    Reasons for the delay in applying for protection visa

39. The Tribunal noted that the applicant arrived in Australia in June 2006 and since that date had not left Australia and applied for protection only [in] June 2014 – a lapse of a period of nine years. The explanation of the applicant for this delay was twofold. First, he told the Tribunal, that when he arrived in Australia he understood “very little English” and he “…had no money” and since his arrival in 2006, “‘he has been working” and then made application for protection.

    What is the applicant doing currently in Australia?

40. Currently the applicant runs his own [business]. The business has been an ongoing concern for him since 2007 and employs 4-5 persons and makes a clear profit (according to the applicant) of AUD$[amount] to AUD$[amount] a week. This business operates on an ongoing basis six days a week. The applicant told the Tribunal that the business is currently doing well. That being so, the applicant’s business has also considerable debts because certain contractors had gone bankrupt without settling their accounts which were owed to the applicant’s business. According to the applicant’s calculations his business debts totalled AUD$[amount] to AUD$[amount] and currently the applicant has commenced legal proceedings at [government agency] to recover some of those debts in the amounting to $AUD[amount].

    The applicant’s fears if returned to China

1. The applicant fears that if he returns to China in the reasonably foreseeable future, he will be imprisoned for un-declared taxes and because the Chinese authorities believe that he too, like his [relative] is liable to pay an outstanding tax liability which is approximately RMB[amount]. The Tribunal asked the applicant why the Department’s delegate noted in the decision record

   “I asked the applicant how much tax the Chinese government alleged was unpaid by him and his [relative]. The applicant again appeared confused before saying it was in the vicinity of [amount] Yuan…”

   (see Department’s Decision record, Tribunal’s file, folio [10])

   The applicant’s response to this information put to him by the Tribunal was that ‘…I do not think this was the figure…if it was… [I] would not have fled for that amount…’ The applicant then told the Tribunal if he did return to China, he feared he would spend time in jail and that was something he wanted to avoid.

2. The Tribunal noted that the applicant was earning for a considerable period of time money here in Australia with his business – why didn’t he make arrangements to provide some payments towards paying off or reducing his taxation liability owed to the Chinese Taxation Office. The applicant admitted for the past seven years he has been working very hard as a [occupation] and has made money and that he could have paid off some of his taxation debt but his first obligation was to pay the taxes owed to the Australian government. He also was working ‘hard’ to pay-off some outstanding debts owed to his employees in wages. The applicant also told the Tribunal that his work here in Australia had also experienced its own setbacks with certain [contractors] not paying him his money and defaulting which has caused him much difficulty and has led him to pursue these individuals in the courts in order to be paid what is owed to him.

3. The applicant was provided with time to make further submissions and to provide further documents concerning his liability in tax to the Chinese Taxation Office.

   Post-Hearing submissions by the applicant

   § Copy of Wanted Warrant issued by the Chinese Authorities in the name of the applicant dated May [2016].

   §  Copy of [town] Intermediate People’s Court Criminal Judgement dated [August] 2007 naming the applicant on suspicion of the crime of evading taxes and sentencing the applicant to life imprisonment.

   §  Copy Business License of Enterprise Legal person dated  [March] 2012.

   §  Copy of Deed of Settlement dated [November] 2016, [government agency] [in] the amount of $AUD[amount] and witness statement associated with the  [government agency]  case.

   §  Copy letter from liquidators for [a company] stating that the applicant is owed AUD$[amount].

   Further Hearing held by the Tribunal on 29 May 2017

4. The Tribunal reconvened a further hearing to ask the applicant about the origins of Court documents he had provided to the Tribunal with his post-Hearing submission.

5. The applicant told the Tribunal that the documents originated from China. They had been kept in safe-keeping by his family. He also told the Tribunal that these documents had not been previously provided to the Department because he did not think that they were of importance to the Department.

6. The applicant confirmed for the Tribunal that his tax liability currently (in land tax) is approximately [amount] Chinese Yuan.

7. The Tribunal was also told that for this tax liability owed to the Chinese state, the applicant now could face the “death penalty”. However, the Tribunal noted that the applicant had not been sentenced to “death” but had originally been sentenced to a term of imprisonment. The applicant was asked why the death penalty had not been originally applied to him. The applicant explained to the Tribunal that such a harsh penalty (of death) had not been originally applied to him was because even though he had been a director of the company with his [relative] (who was in jail) he did not play a major role in the company’s administration of its day to day affairs.

8. Finally, the applicant told the Tribunal that he had been in Australia for ten years and did not want to go back to China because he could face the death penalty for evasion and non-payment of tax. If he stayed here he could continue to work as a [occupation] and he could adequately maintain his livelihood. Also, he had a considerable amount of money owed to him by certain companies which he wished to finalise payment but was still outstanding and the subject to litigation.

   FINDINGS AND REASONS

   Credibility

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

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

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

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

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

12. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

13. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)

14. The Tribunal raised the issue of the applicant’s overall credibility for the following reasons:

15. First, the applicant claimed that he fled China because he had a political dispute with the authorities (together with his [relative]) which concerned the singling out of their business for the non-payment of taxes owed to the Chinese government. According to the applicant’s evidence, his [relative] is currently serving a prison sentence for this. On the other hand, the applicant was fortunate enough to have escaped imprisonment due to the fact he left for Australia via [Country 1] in 2006. What raised the Tribunal’s concerns from the outset was the applicant’s apparent confusion with the most important fact – how much money was owed by the business in unpaid taxes. The Tribunal noted at paragraph [33] that the applicant when asked what was owed or what was being alleged the business owed in taxes, the Tribunal was told ‘RMB[amount]’. The applicant then qualified his answer telling the Tribunal that the figure was ‘RMB[amount]’. Later, at paragraph [41] the Tribunal reminded the applicant that he had told the Department’s delegate that the figure owed by the business was ’[amount] Yuan’ and the applicant ‘did not think that was the figure’ because ‘…if it was…’ he would not have fled China ‘…for that amount…’ Furthermore, in documents provided to the Tribunal post-hearing from the [town] Intermediate People’s Court (dated August, [2007]) the claim made against the applicant and his [relative] is for ‘land tax’ which has been claimed for the period 1998-2006 in the amount ‘[amount] RMB.’ The Tribunal considers it entirely implausible that the applicant an individual involved in the business could not tell the Tribunal with accuracy his business’ taxation liability and the Tribunal does not accept the applicant’s claim that he had a taxation liability owing to the Chinese government as credible. 

16. Second, the applicant claimed that while he was in China, his [relative] was convicted, tried and sentenced to a jail term for tax avoidance. The Tribunal asked him why he did not suffer a similar fate. In response, the applicant provided a confused and disjointed explanation of the events which allowed him to come to Australia. First, the applicant said that he lived in [Country 1] “…in 2006”. He then qualified his answer to say “I do not think it was 2006 …it was 2003…” The Tribunal understands that at times, memory can be clouded by the passage of years, but in this instance, the applicant should have been able to recall without prompt when and where he was prior to leaving China. The Tribunal notes that the applicant did not claim to have suffered any mental stress that may have impugned his recollection of events. Second, the applicant explained that his escape from China via [Country 1] on “…his understanding…” (at that time) in 2006 when he was able to elude the authorities was because:… there was not a connected network …computer systems and matters took time…” to be processed. The Tribunal does not accept this explanation of events as credible. Moreover, the applicant’s travel history out of [Country 1] between 2005 until June 2006 (see paragraph [24]) does not present a Chinese citizen in flight from the Chinese authorities for tax evasion. In January 2003 the Australian Department of Foreign Affairs and Trade advised that a person who had come to the adverse attention of the Government of the People’s Republic of China would experience difficulty in obtaining a legal passport. It advised that checks with the Public Security Bureau in the applicant’s place of registered residence would reveal any adverse records held by the public security organs on the applicant.[1] The Tribunal does not consider it credible that, if the applicant had been charged as he and his [relative] were as the applicant claimed - for tax evasion and that his [relative] had been convicted, tried and sentenced while the applicant was still in China, he would have been able to obtain a legal passport and visa to travel between September 2005 and June 2006.  

    [1] DFAT Country Information Report No.12/03, dated 15 January 2003, CX72393.

17. Third, the applicant claimed at second hearing that if he was to return to China he could suffer the death penalty for his tax evasion. The Department of Foreign Affairs and Trade (DFAT) Country Report – People’s Republic of China[2] does state that China retains the use of the death penalty for 55 crimes, including a number of economic and non-violent crimes. Capital crimes include: “endangering public security” (such as arson, hijacking or the selling or producing of fake medicines); “smuggling” (including drugs, weapons or nuclear material); “disrupting the order of financial administration” (including counterfeiting currencies) and “infringing upon citizens’ right of the person and democratic rights” (including homicide, rape and trafficking).[3]

    [2] Department of Foreign Affairs and Trade (DFAT) – Country Report – People’s Republic of China, 3 March 2015, at p.16 Also see ‘China Says Tax Fraud No Longer Punishable by Death’

    [3] Ibid at p.16

18. However, the same DFAT report goes on to state:

    4.4 Courts can decide between a death sentence (without reprieve) and a death sentence with a two-year suspension of execution. According to China’s Law, this latter punishment can be commuted to life imprisonment at the end of the two-year suspension period if no other intentional crimes have been committed during the period of suspension. If a person demonstrates “meritorious service” during their suspension period, they may be granted a reduction of sentence to 15 to 20 years’ imprisonment.

19. Moreover, according to Article 15 of the Provisional Regulations on Authorised Methods for Corporate Income Tax Collection GSF[200] No.38[4] it states as follows:

    Article 15

    “If taxpayers have disputes over the identification of the methods for corporate income tax collections or over the authorised payable tax or taxable income rations, they may apply to the higher tax authorities for accommodation with the prescribed time. Limit. If they refuse to accept the result of the recommendation, they may apply to the Courts.”

    [4]

20. Again, the Tribunal considers it entirely implausible and lacking in credibility that the applicant faces such dire penalties for taxation evasion if he is to return to China in the reasonably foreseeable future. As noted previously by the Tribunal, the applicant faced no hindrances when he chose to leave China and departed China on a legally obtained Chinese passport. If the applicant was evading the Chinese authorities for any crime he had committed which could have included economic crimes, he would not have been able to leave the Chinese mainland to come to Australia. Therefore, the Tribunal finds that even if the applicant was to be returned to China there is no possibility from the evidence before the Tribunal that the applicant’s life would be jeopardy because of the death penalty being imposed on him for an alleged tax debt owed to the Chinese State.

21. For all these reasons, the Tribunal has formed the view that the applicant has been entirely lacking in credibility with regards to his claim for protection. The Tribunal does not accept the applicant’s claims. The Tribunal does not accept that the applicant is required to pay an outstanding tax liability owed to the Chinese government. The Tribunal does not accept that the applicant had fled China via [Country 1] in order avoid the payment of this alleged taxation debt or to avoid imprisonment or any other serious form of capital punishment. The Tribunal does not accept that the applicant if he returns to China could face as he claimed the death penalty for the non-payment of his alleged unpaid taxation liability owed to the Chinese government. The Tribunal rejects the entirety of the applicant’s claims and finds the applicant had embellished his claims for the purpose of his protection visa.

22. Having rejected the entirety of the applicant’s claims, the Tribunal finds that there is no real chance that the applicant will be persecuted for any Convention reason, or a combination of reasons, if he returns to China now or in the reasonably foreseeable future.

23. Having considered all the applicants claims singularly and cumulatively, the Tribunal finds that there is no real chance that the applicant will be persecuted for any Convention reason or reasons if he were to return to China now or in the reasonably foreseeable future. The Tribunal finds that the applicant does not have a well-founded fear of persecution for a Convention reason. He does not meet the refugee criterion in s.36(2)(a) of the Act.

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

24. The Tribunal also finds that the applicant is not entitled to complementary protection. The Tribunal has rejected the entirety of the applicant’s evidence in relation to events in China as the Tribunal has formed the view that such claims lack credibility. The Tribunal does not consider there is a real risk the applicant will suffer significant harm as a result of events he claims to have taken place in China.

25. The Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country (China), there is a real risk that he will suffer significant harm. The Tribunal finds that the applicant does not meet the complementary protection criterion in s.36(2) (aa) of the Act.

    Conclusion

26. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion in s.36(2)(a) of the Act.

27. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

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

    DECISION

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

    Peter Vlahos
    Member