1610313 (Refugee)

1610313 (Refugee) [2019] AATA 5182 (15 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1610313
COUNTRY OF REFERENCE:                  China
MEMBER:Denise Connolly
DATE:15 March 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 March 2019 at 11:08am
CATCHWORDS
REFUGEE – protection visa – China – dispute with local gangster/employer over father’s death in work-related accident – attacks and threats by gangsters – corruption and threats by officials – credibility – departed on genuine, valid passport – inconsistent evidence – delay in applying for protection – no real chance of persecution – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 16 June 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of China, applied for the visa on 26 May 2015. The delegate refused to grant the visa on the basis that she was not satisfied the applicant is a person in respect of whom the Minister is satisfied Australia has protection obligations.
CLAIMS AND EVIDENCE
Evidence to the Department
The applicant has provided to the Tribunal a copy of the delegate’s decision record. The Tribunal has considered it and other information on the Department’s file. The applicant was born on [date] in Fuqing City, Fujian Province. He provided to the Department a copy of his Chinese passport issued [in] 2007. In a written statement he made the following claims. He arrived in Australia [in] April 2008 as the holder of the student visa. He believes he will be persecuted if he is returned to China. He was born in [Village], [Town]. His father was [an Occupation 1]. The government reclaimed land from 2002 and the environment was seriously damaged. It became difficult for his father to make a basic living by [his occupation]. In 2004, [Mr A], the head of local gangsters (a.k.a. “black society”) bought a second hand [vehicle] and employed the applicant’s father as its [Occupation 2]. His father was reluctant to work for Mr [A] but had to feed his family. He was promised RMB[amount] per year so agreed to work [with him]. His father warned Mr [A] that the [vehicle] should be maintained and repaired or it would be in great danger. However Mr [A] did not like to stop the [vehicle] for maintenance and repair and ignored his father’s advice. [In] April 2006 the [vehicle was in an accident]. [A number of staff] survived and 3 were killed, including the applicant’s father. Mr [A] was not [in the vehicle] at the time but received RMB [amount] as compensation from the insurance company. However he paid only RMB[amount] to each of the victims’ families. He gave nothing to the [remaining] survivors.
The applicant was studying at the time but he was the only man left in the family. He believed the compensation was unfair as his father’s employment was a major source of income for the family. His family was subjected to severe financial hardship and he had to terminate his schooling in June 2006. He sought to be paid reasonable compensation by Mr [A]. In August 2006 he met a lawyer, Mr [B], through a friend. Other lawyers had not been willing to accept the case because they were afraid of Mr [A]. Mr [B]’s firm calculated that my father’s total income would have been RMB[amount] had he worked until age 60. He advised that a reasonable compensation therefore should be at least RMB[amount]. He asked Mr [A] for the relevant files but he refused to provide them. He claimed that the documents were kept [in the vehicle] and were lost during the [accident]. The lawyer, the applicant’s mother and sister, and the applicant were threatened by local gangsters who said they would severely punish them if they did not stop chasing compensation. The court refused to accept their application on the basis of insufficient documentation. The police refused to help or protect the applicant’s family claiming they could not show evidence that they had been threatened by Mr [A] and local gangsters.
The applicant claims that from January 2007 to September 2007 the applicant and the lawyer approached the court. The lawyer suspected the officials were being bribed by Mr [A] and advised that they seek help from higher authorities. During this period the lawyer and the applicant were beaten up and abused by local gangsters and the lawyer’s legal firm was smashed up. The police failed to protect the applicant and the lawyer.
The applicant claims that in September 2007 an investigation group organised by the Fuqing Municipal Government arrived in [Town] and interviewed the applicant, his mother and his sister, along with the families of the other victims. The investigation group did not make any genuine attempts to investigate the matter. They enjoyed themselves on feasts and entertainment arranged by Mr [A]. The investigation group concluded that the applicant’s father and the other 2 victims were just part-time [staff] and they had received reasonable compensation. The investigation group warned the lawyer and the victims’ families to not do anything further or there would be big trouble. However the lawyer and the applicant did not give up the struggle. They decided to appeal to the Fujian Provincial Government urging the higher authorities to investigate the corruption. The lawyer thought this could be very dangerous so, with the assistance of his girlfriend, started to plan for the applicant to travel to Australia to study. The applicant’s mother borrowed a lot of money as she was worried about the applicant’s safety.
In April 2008 the lawyer and the applicant visited the Fujian Provisional Court and the Fujian Provisional Anticorruption Bureau. It was requested that they provide relevant certificates from the local government but it was impossible for them to do so. The applicant and the lawyer were interviewed in early April 2008. They were promised that the case would be kept secret. However, shortly after, their activities were discovered by Mr [A] and the local officials. [In mid-]April 2008 the lawyer was suddenly arrested by the Public Security Bureau in Fuqing and accused of spreading rumours, framing officials and harming social security. His legal firm was sealed by the authorities. Fortunately the lawyer’s girlfriend had arranged for the applicant’s student visa and he left China [in late] April 2008. [Three days later] the police raided the applicant’s family home. They searched everywhere looking for illegal anti-government documents. They took his mother and sister to the PSB and questioned them about what the applicant and the lawyer had done and how the applicant was able to leave China as he was regarded as a troublemaker with serious anti-government ideologies. Since the applicant has left China the police and Mr [A] have continued to harass his mother and sister. The lawyer was transferred to a mental hospital in June 2008 and the applicant heard that he committed suicide in the mental hospital in 2010. The applicant believes he will be subjected to harm if you returns to China.
The applicant provided to the Department a translated document entitled Death Reparation Resolution Agreement dated [June] 2006 claiming that [Ms B] (his mother) was paid RMB [amount] by [Company] as compensation for a [vehicle] incident [in] April 2006. The applicant also provided a translated document entitled [details deleted], dated [April] 2006.
The delegate has recorded in the decision record information given by the applicant in his interview on 15 May 2016. The Tribunal has listened to the recording and, while it is not a transcript, considers the information recorded in the decision record reflects that given by the applicant at the interview. Aspects of the information recorded were put to the applicant at the hearing and are discussed in more detail below.
There was however information discussed during that interview which is not recorded in the delegate’s decision record. It concerns information that was provided to the Department in the applicant’s student visa application. The delegate put to the applicant that at the time of the visa application it was recorded that the applicant’s father was still alive. It was recorded that the applicant’s father submitted evidence with the student visa application, and agreement between himself and a bank in China made in March 2008. As recorded below the Tribunal provided this information to the applicant at the hearing and invited him under s.424AA to comment on or respond to the information. The Tribunal also gave the applicant an opportunity to seek additional time to respond however he did not do so.
The delegate was not satisfied the applicant is a witness of truth. She formed the view that he either embellished or entirely fabricated his claims. She found that there was no conclusive documentary evidence to support his claims. She was not satisfied the applicant has a well-founded fear of persecution for the reasons mentioned in the Act. Nor was she satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm.
Evidence provided to the Tribunal
On 12 March 2019 the applicant appeared before the Tribunal to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant’s representative also attended the hearing.
The Tribunal explained to the applicant that the delegate was not satisfied that the applicant had been truthful in his evidence. It explained that it was important that he listen carefully to the Tribunal’s questions and answer the question asked. It explained that if the Tribunal was not satisfied about one aspect of his evidence it may not accept his other claims. The following, while not a transcript, is a summary of information given to the Tribunal by the applicant at the hearing.
The applicant brought to the hearing certificates concerning his father’s qualification as an [Occupation 2]. Two of those documents were for periods prior to the applicant’s father’s alleged death in April 2006. However one of the documents was issued to the applicant’s father [in] January 2007 by the [safety authority]. The Tribunal raised with the applicant its concern that this certificate was issued to the applicant’s father after the date of his alleged death. The Tribunal explained that this may raise doubts about the applicant’s claim that his father died in a [vehicle] accident in April 2006. It explained that if it is not satisfied his father died in that accident it may not be satisfied about his other claims. The applicant asserted that he was 100% sure his father died in the accident in April 2006. He could not provide any explanation as to why the authorities would issue a certificate of qualification to his father after his date of death.
The applicant confirmed that he departed China using a valid genuine passport. When asked who had made the application for the passport issued in [2007], he indicated it was arranged by his lawyer’s girlfriend.
The Tribunal asked the applicant why he came to Australia. He indicated that he had been fighting with the Chinese government. His lawyer’s girlfriend thought that he was in danger so she arranged his visa to Australia. The Tribunal asked if there was any other reason he came to Australia. He indicated he had been persecuted by the Chinese government. The Tribunal asked if the applicant had undertaken any study when he came to Australia. He indicated that he did study for about one month. The Tribunal asked why he undertook that study. He indicated that because of his age it was appropriate for him to be studying. However he did not have the capacity to pursue further study because he kept thinking about his father. He was scared and afraid that the Chinese government had sent someone to Australia to get him back.
The Tribunal asked the applicant why he does not want to return to China. He indicated that he is sure the Chinese government would take him into custody. The Tribunal asked why the Chinese government would do this. He indicated that before he came to Australia he and his solicitor had filed a lawsuit against the bureaucrats and made them angry.
The Tribunal asked the applicant about the circumstances of his father’s death. The applicant indicated that his father’s body was found [in] May 2006 in [Fuzhou]. He claimed that a death certificate had been issued indicating that the cause of death was the [accident]. The Tribunal asked the applicant who had informed him of his father’s death. He indicated that he was at school and his aunt came to see him to tell him. He claimed that a person working in Mr [A]’s office called his mother and his mother and sister rushed to the scene. His mother contacted his aunt and told her to get the applicant so they could go and have a look. His aunt told him that his father’s [vehicle had been in an accident]. He claimed that initially his father had not died as [details deleted]. At first he said that his elder brother, [Mr C], witnessed this. Also his grandfather’s [vehicle] was nearby and they rushed to rescue the applicant’s father.
The Tribunal noted that the applicant’s written submissions indicated he was the only male left in the family. It asked therefore why his elder brother had not pursued the compensation matter. The applicant clarified that [Mr C] was the son of his father’s elder brother, his cousin, an adult at the time of the accident. The Tribunal asked why his father’s elder brother and the applicant’s adult cousin had not pursued the compensation, given that at the time the applicant was only [a certain age]. The applicant indicated they were scared of Mr [A].
Around this time of the hearing the applicant’s representative, Mr [D], [details deleted]. This caused some disturbance. The Tribunal raised its concern with Mr [D] as to why he would do this. He indicated that he was demonstrating [the accident]. The Tribunal requested that if Mr [D] had any concerns during the hearing that he raise those concerns with the member rather than disturb the proceedings.
The Tribunal noted that the applicant had claimed that the municipal government had formed an investigation group. It asked how he knew about the formation of the investigation group. The applicant proceeded to tell the Tribunal about the background to his claim; that he and his lawyer had tried to seek help, that they had contacted the police and the court but Mr [A] was avoiding taking responsibility. The Tribunal repeated its inquiry about how the applicant became aware of the formation of the investigation group. The applicant responded by indicating that after they had seen some people the investigation group came to his place to meet them. He then changed his evidence, indicating that they met at a hotel. The Tribunal noted that the applicant’s oral evidence on this issue was inconsistent. It asked whether they met at his place or a hotel. He indicated that it was the police that had come to his home and that he met the investigation group at a hotel. The Tribunal asked again how the applicant knew about the formation of the investigation group. The applicant commenced telling the Tribunal about the background to his claims. The Tribunal indicated to the applicant that it had explained to him that it was important that he answer the question asked. It noted that it had asked him more than once how he became aware of the formation of the investigation group and that he appeared not to be answering that question. It explained that it may have concerns if he did not answer the questions asked. The applicant indicated that after they had sought assistance from different avenues, the council formed an investigation group. The Tribunal asked the applicant to explain how he became aware that the council had formed the investigation group. He indicated that his lawyer received a notice in September 2007 and there were 2 men in the investigation group. He gave names for both men. He indicated that he met them at a hotel. The Tribunal asked who attended that meeting. He indicated that he attended with his lawyer and there were representatives of the other 2 victim’s families. The Tribunal clarified who was present at the meeting with the investigation group. The applicant then indicated that he met them first on a Monday and then later in the week on Friday. He indicated that both meetings were held at the same place and the same people attended; the applicant, his lawyer and the family members of the 2 other victims.
The Tribunal noted that the applicant’s oral evidence about those present at the meeting with the investigation group was inconsistent with his written statement in which he claims that the investigation group met with the applicant, his lawyer, his mother and his sister and family members of the 2 other victims. The Tribunal noted that this inconsistency may be concerning as in his oral evidence to the Tribunal he did not mention that his mother and his sister were present during that interview. The Tribunal noted that the applicant was able to remember particular aspects such as the days of the week that the meetings were held. The applicant indicated he did not remember because it was a long time ago and he was nervous.
The Tribunal referred to information in the delegate’s decision record provided to it by the applicant. It noted that the applicant had claimed to the delegate that he was in hiding when he came to Australia. It questioned why he would be hiding given that he held a valid student visa. It also noted that after his arrival in Australia he applied for a subsequent student visa which was granted. The applicant indicated he did not know anything about the student visa. He indicated that 2 weeks after he commenced study in Australia he was asked to go to the reception desk. Other classmates told him that he needed to take his passport to the front desk and they would arrange for it to be stamped. The Tribunal asked where the applicant’s passport was stamped with the subsequent student visa. He could not remember where. He merely followed his classmates.
The Tribunal asked the applicant about his employment after arriving in Australia. He confirmed that he secured odd jobs advertised in newspapers. He confirmed that he was able to secure accommodation and a driver’s license in Australia. The Tribunal noted it appeared the applicant was able to attend to his needs independently. It asked why in the circumstances the applicant did not approach the Department to clarify his migration status, particularly after his student visa expired in March 2011. The applicant indicated he was scared of the Australian government. The Tribunal asked if the applicant was scared of the Australian government because he had ceased studying. The applicant indicated he is scared of governments. He thought the Australian government would deport him. The Tribunal asked if he feared this because he was not studying and he confirmed this. He indicated he was scared that he would be arrested while he was studying. When he came to Australia he did not know anything about the Australian government and he had been persecuted in China. The Tribunal asked the applicant what he meant by persecution in China. He indicated he asked for compensation but because the compensation was not reasonable he went to the police. The applicant appeared to be retelling his written statement. The Tribunal asked the applicant to focus on its question and describe to the Tribunal the persecution he suffered in China. He indicated that there were verbal threats by government officials and Mr [A]. The Tribunal asked when this commenced. He indicated it was in September 2006. They came to his house and grabbed him and said that if he says anything nasty he will be hacked to death. They warned him not to spread rumours or they would demolish the house. The government officers also warned his lawyer that they would smash up his office if he spread rumours. The Tribunal asked why the authorities would take such action. He indicated that they thought that he and the lawyer had said something about the government. He believes there were dealings between the government and Mr [A].

The Tribunal asked the applicant why he cannot now return to China. He indicated his case has not concluded. He claimed that whenever there is a festival the police come to his family home and warn his mother. The Tribunal questioned whether the authorities would continue to take these actions 11 years after he had departed China.
The Tribunal asked the applicant how he was able to leave the country using a valid passport if it was the case that he was of adverse interest the authorities. It explained that the country information indicates that he would not have been able to do this. The applicant indicated that his lawyer’s girlfriend made secret arrangements for him to leave. He indicated that an official was bribed. The Tribunal asked about the source of the funds for the bribery. He indicated that there was a settlement between his mother and the company. It asked when that settlement occurred. He thought it should be in June 2006. Initially he indicated that the government paid compensation. He then corrected this and indicated that an individual paid compensation to his mother. The Tribunal questioned why the applicant, who was only [a certain age] at the time, would have pursued compensation with Mr [A] and petitioned the authorities. He indicated that his mother did not have the strength to pursue more compensation. He indicated that the family members were very disappointed about his argument with Mr [A] as he was notorious. As the only boy in the family he had to take responsibility but his mother and sister disapproved.
The Tribunal asked how the applicant paid for the lawyer. The applicant indicated he used funds from his father’s compensation. The Tribunal asked how he had access to his father’s compensation if his mother disapproved of his actions. He indicated he only needed to pay the lawyer a few thousand yuan as the lawyer understood the family situation.
The Tribunal asked the applicant how he was able to be issued with a valid passport [in] 2007 if it was the case that he was already of adverse interest to the authorities. The applicant indicated the lawyer’s girlfriend bribed an official. The Tribunal noted that the applicant’s evidence indicates the lawyer’s girlfriend bribed various officials and asked about the source of those funds. He indicated that she knew about his family’s financial hardship. At the time she only had to pay a few hundred dollars which was not a lot of money. The Tribunal questioned how he had access to the money if his mother did not approve of his actions. He indicated that he had an argument with his mother and he just took the money. He indicated that his mother said “this is your father’s compensation money. What you want to do with it?” He then took the money. She hit him and locked him in the house for 2 days.
The Tribunal asked about the process of the settlement. The applicant indicated that Mr [A] asked family representatives to attend his office. His lawyer was present. Because he decided that the victims were only temporary workers they only received small compensation and they could not get any more. The applicant indicated that he was present at the time that Mr [A] and his mother signed the agreement. He provided the original agreement document and the representative confirmed that it was signed by [Mr A]. The applicant claimed that his mother was paid RMB [amount] in cash on the day.
The Tribunal noted that the delegate’s decision record indicates that the applicant told the delegate that he was on a blacklist. The Tribunal asked the applicant how he knew he was on a blacklist. The applicant indicated that at first he only made representations to the county government. The Tribunal noted that the applicant was not answering the question, that is, how the applicant knew that he was on a blacklist. The applicant indicated that he was with his lawyer and they were reporting the matter to the city and provincial government and they raised arguments with the authorities. The Tribunal noted that, despite being given a fair opportunity, the applicant had not answered the question.
The Tribunal noted the applicant has claimed that the police raided his family home 2 days after he departed from China. It asked how he knew about the raid. The applicant indicated he had telephoned a neighbour and his mother told him on the phone that the authorities had raided the home. He claimed that she said the police were searching for relevant documents. The Tribunal questioned what documentation they were searching for. He indicated court documents. He indicated that they warned her that he should not spread rumours.
The Tribunal asked the applicant how he knew his lawyer had been transferred to a mental hospital and committed suicide in 2010. The applicant indicated that his mother had told him. He indicated that during the Spring Festival he had contacted her. He also indicated that their phone calls have been intercepted. The Tribunal asked the applicant how he knew this. He indicated that his mother was not being straightforward and he had the feeling the calls were being intercepted.
The Tribunal asked the applicant if he had taken any further action since arriving in Australia to seek adequate compensation. He confirmed that no further action has been taken. The Tribunal asked the applicant what he would do if he returned to China. He indicated that he was hoping the Australian government would help him with the compensation matter to get justice. The Tribunal asked the applicant when he was planning to approach the Australian government for this assistance. He indicated that his plan is that if he has the support of the Australian government he will seek their help to approach senior officials about corruption. He trusts the Australian government to do justice for him. The Tribunal asked when the applicant formed this trust in the Australian government. He indicated in 2015 when he told his story to his migration agent. He has not taken any action but he thinks about his matter all day.
The Tribunal asked the applicant what action he would take if he returned to China. He indicated he will disclose the secret dealings to the public. The Tribunal indicated it may not accept that the applicant would take any further action given he has taken none so far from the safety of Australia. He indicated he has to get even because they killed his father. He will tell senior officials in China what happened and go to court. The Tribunal asked which court the applicant intends to approach. He indicated he will go to the civil court in Beijing. The Tribunal noted that there is country information indicating that the statute of limitation, which it explained defines the maximum period after an event in which proceedings can be initiated, is usually 2 years and in some circumstances extends to 3 years.[1] The applicant stated that he is already ‘on the list’.
[1] General Principles of the Civil Law of the Peoples Republic of China, Article 188.
The Tribunal raised with the applicant its concern about the significant delay in his protection visa application. It noted that he arrived in Australia in April 2008 and did not apply for protection until May 2015. The applicant indicated that at first he did not tell anybody about his story. He was frightened.
The Tribunal explained that it had not yet made its findings but country information which indicates that there is widespread document fraud in China[2]. The applicant asserted that all of the documents are genuine. He referred to the media article about the [accident] and questioned whether it would have been published if the event had not been true.
[2] DFAT Country Information Report, People’s Republic of China, 21 December 2017
The Tribunal noted that the delegate put to the applicant that she did not accept that one corrupt official could have power to control and influence an entire police force, the legal system and the authorities in China. She cited country information indicating that Chinese citizens are allowed to present their letters of complaint and visit government bureaus. She did not accept his claims that he would need an approval letter to make a complaint against government officials. The Tribunal asked if the applicant had any comment to make on this concern. The applicant indicated the complaint he made was huge, targeting Mr [A], people in the legal system and people in the government including the police force.
The Tribunal noted that the delegate raised with the applicant during his interview that, at the time of the student visa application, it was recorded that his father was still alive. The delegate also noted that evidence was submitted with the student visa application that his father had formed an agreement with a bank in China in March 2008. The Tribunal explained that this suggests the applicant’s father was still alive in March 2008. The Tribunal explained that the Act requires it to give the applicant an opportunity to comment on or respond to this information. The Tribunal repeated the particulars of the information and it explained its relevance. It explained that if the information was relied on the Tribunal may find that the applicant’s father did not die in an accident in April 2006. It explained that it may find that claim was fabricated. It explained that the consequence of relying on the information would be that the Tribunal would find the applicant had fabricated his claims and that it may also find that he does not fear persecution or harm in China. The Tribunal explained it would then affirm the Department’s decision. The Tribunal explained that the applicant could seek additional time to comment on or respond to the information and if he did so it would consider whether it was reasonable to give him more time.
The applicant chose to respond to the information at the hearing. He indicated that that student visa application was arranged by his lawyer’s girlfriend. He indicated she provided the documentation to the Australian government for the student visa application. He indicated that he only gave her his passport and his ID. He indicated that the incident was reported in the news and questioned how this could be false. The Tribunal noted that the reporting did not mention his father’s name. The applicant asked the Tribunal if it knew what the Chinese government was like. He indicated the corruption never stops. He indicated he left China because his safety was threatened. He claimed that if he returns to China he will be killed. He believes he is the only person who can fight this injustice.
The Tribunal asked the applicant if he had any other evidence to give. The applicant indicated that a person can live without a husband and children but cannot live without a father.
CRITERIA FOR A PROTECTION VISA
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, he or she 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.
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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments 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
Nationality
The Tribunal finds that the applicant is a citizen of China, based on his Chinese passport and his oral evidence, and will assess his claims on this basis. The Tribunal finds that he is outside his country of nationality. There is no evidence before the Tribunal to suggest that he has a right to enter and reside in any country other than his country of nationality.
Does the applicant have a well-founded fear of persecution?
The applicant claims that his father died [in] April 2006 in a [vehicle] accident. He claims that the owner of the company, Mr [A], a head of local gangsters, provided his mother with inadequate compensation. He claims that he engaged a lawyer to pursue adequate compensation but Mr [A] refused to give them the relevant documentation. He claims that he and his family were threatened by gangsters and he and his lawyer approached the court but they refused to accept the application citing insufficient documentation. He claims that the police refused to help or protect his family, claiming there was no evidence of threats by the gangsters. He claims that he and his lawyer suspected corruption and his lawyer advised they go to a higher authority. As a consequence he and his lawyer were harmed and his lawyer’s firm with smashed. He claims that the council then formed an investigation group however they too were corrupt and threatened the applicant. He claims he appealed to the Fijian Provisional Government to investigate corruption. He claims his mother borrowed a lot of money to enable the applicant to leave China. He claims that in April 2008 he and the lawyer visited the Fujian Provisional Court and the Fujian Provisional Anticorruption Bureau but they asked for documentation. He claims that Mr [A] and local officials found out and his lawyer was arrested by the PSB. He claims his family home was raided 2 days after he left China for Australia. He claims his mother and sister continue to be questioned by the PSB about how the applicant was able to leave China given his serious anti-government ideologies. He claims that his lawyer was admitted to a mental hospital and committed suicide in 2010. He claims to fear returning to China because he will be persecuted. He also claims that he will pursue this matter if he returns to China.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: 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.
The Tribunal has serious concerns about the reliability of the applicant’s evidence. For the following reasons it finds the applicant is not a witness of truth.
First the applicant brought with him to the hearing his father’s Certificates of qualification as an [Occupation 2]. The Tribunal notes that one of those certificates records that it was issued [in] January 2007 by the [safety authority]. Having considered the certificate the Tribunal has no reason to question its authenticity. The Tribunal notes that the [safety authority] issued the certificate to the applicant’s father after the date of his alleged death [in] April 2006. The Tribunal put to the applicant its concern that this certificate indicates that his father was not deceased in January 2007. The applicant could not provide to the Tribunal an adequate explanation as to why the authorities would issue to his father a certificate of qualification as an [Occupation 2] if his father was deceased. On the basis of this certificate the Tribunal has serious doubts that the applicant’s father died in a [vehicle] accident [in] April 2006.
The Tribunal also notes that at the time the applicant’s student visa application was made, it was recorded that his father was still alive. The Tribunal notes that the delegate advised the applicant during the interview that evidence was submitted with the student visa application that his father had formed an agreement with a bank in China in March 2008. When the applicant was invited at the hearing to comment on this information under s.424AA, he did not deny that such information was provided with the student visa application. He merely stated that he had little to do with the application as he only provided his lawyer’s girlfriend his passport and ID and that she provided to the Department the relevant documentation. He also questioned why the media would have reported the incident if it was not true. This does not explain why the Department was advised that his father was still alive and had formed an agreement with a bank in China in March 2008. The Tribunal notes that the news item provided as evidence does not mention his father’s name. On the basis of the information provided to the Department at the time of the applicant’s student visa application, the Tribunal has formed the view that the applicant’s father was alive in March 2008 and had provided evidence of an agreement with a bank in China in support of the student visa application. The Tribunal is of the view this information undermines the applicant’s claim that his father died in a [vehicle] accident [in] April 2006.

The Tribunal notes from the delegate’s decision record, provided to the Tribunal by the applicant, that the applicant arrived in Australia in April 2008 as the holder of a student visa. He claims that he left China because he had been fighting with the Chinese government and he had been harmed and threatened by Mr [A] and government officials. He claims his lawyer’s girlfriend thought he was in danger so she arranged his visa to Australia. He has also claimed however that his mother borrowed a lot of money for his study in Australia because she was worried about him. He claims that he left China because he had been persecuted by the Chinese government. The Tribunal notes that the applicant in fact commenced studying when he came to Australia. It notes that after his arrival he made a further student visa application which was granted in May 2008 and ceased March 2011. It notes however that the applicant did not make an application for protection until May 2015. The Tribunal is of the view a delay of 7 years in these circumstances is significant. The Tribunal has considered the applicant’s explanation for the significant delay in making the protection visa application but finds the applicant’s explanation unsatisfactory. It is not satisfied he feared the Australian government because it notes his evidence that he obtained a second student visa and a driver’s license in Australia. It has formed the view the only reason the applicant feared the Australian government was because, while the holder of a student visa, he was not studying. It is of the view he feared the Australian government after his student visa ceased because he was here unlawfully. The Tribunal does not accept the applicant has been able to adequately explain the significant delay in his protection visa application. It has formed the view that there has been a significant delay in this case because the applicant did not, and does not, fear harm in China and his claims to have suffered harm in China are fabricated.
The Tribunal also notes there have been inconsistencies in the applicant’s evidence on important issues, such as who was in attendance at the meeting with the investigation group. It also notes that on a number of occasions he appeared to avoid answering the Tribunal’s questions and merely repeated the story from his written statement. At times his evidence was vague such as why the authorities would still be interested in him if he returned to China. It is of the view the inconsistencies, obfuscation and vagueness are a consequence of the applicant having manufactured his evidence.
Overall the Tribunal considers the shortcomings in the applicant’s evidence to be reflective of its manufactured nature. It is not satisfied the applicant’s father was killed in a [vehicle] accident [in] April 2006. It has concluded the news item he provided to be about other parties. It has considered the alleged agreement between the applicant’s mother and Mr [A] and has formed the view that it has been manufactured. As the Tribunal does not accept that the applicant’s father died in a [vehicle] accident [in] April 2006, it does not accept his claims that he sought further compensation which resulted in the applicant and his lawyer being harmed by gangsters and the authorities. It does not accept the applicant and his lawyer approached the court but they were refused because of insufficient documentation. It does not accept the police refused to protect the applicant’s family or that he and his lawyer approached the authorities about suspected corruption. It does not accept his lawyer’s firm was smashed or that an investigation group was employed to investigate his claims of corruption. It does not accept that there is any application before any court to investigate corruption in relation to his claims or that his mother was inadequately compensated for his father’s death. It does not accept that his family home was raided 2 days after he left China for Australia. Nor does it accept that his mother and sister continue to be visited and questioned by the PSB in relation to his actions and petitioning. Nor does it accept that his lawyer was admitted to a mental hospital and committed suicide in 2010. It is of the view the applicant has manufactured all of his claims. Consequently it does not accept he fears harm or persecution in China or that he has any matter to pursue with the court or the authorities if he returns to China.
The Tribunal is not satisfied the applicant is of adverse interest to the authorities. It does not accept that the applicant will take any action in relation to any of these claims if he returns to China that will attract the attention of the authorities. Nor does it accept the applicant fears persecution or harm in China.
On the evidence before it, the Tribunal is not satisfied that the applicant believes he will be persecuted if he returns to China. It is not satisfied he has a well-founded fear of persecution for reason of his petitioning, his political opinion or any imputed political opinion based on his petitioning and dealings with the authorities, or for any other reason. It is not satisfied that there is a real chance that he would be persecuted for any one or all of the reasons claimed. It is not satisfied there is a real chance of persecution if he were he to return to China. Therefore, he does not meet the definition of refugee. Accordingly, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
Does the applicant meet the complementary protection criteria?
The Tribunal must also consider whether the applicant meets the criteria for complementary protection. A person meets the complementary protection criteria if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
‘Significant harm’ for these purposes is exhaustively defined in the Act. 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.
Section 36(2)(aa) of the Act refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
For reasons given above in relation to ‘real chance’, the Tribunal is not satisfied there is a real risk of any of the kinds of significant harm set out in s.5(1). As discussed earlier, the Tribunal is not satisfied that the applicant has suffered any harm in the past in relation to his claims. It has found that those claims have been manufactured. It is not satisfied the applicant has been harmed by gangsters or the authorities. It is not satisfied the applicant will take any action if he returns to China that will result in him suffering harm. The Tribunal is not satisfied there is a real risk that he would suffer significant harm if removed from Australia to China.
The Tribunal is not satisfied therefore that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China there is a real risk of significant harm. Therefore the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Denise Connolly
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2019] AATA 5182

15 March 2019

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