1616423 (Refugee)

1616423 (Refugee) [2019] AATA 5297 (15 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1616423
COUNTRY OF REFERENCE:                  China
MEMBER:David Barker
DATE:15 November 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 November 2019 at 10:44am
CATCHWORDS
REFUGEE – protection visa – China – farm and village land confiscated or sold for property developments – father’s and friend’s role in protests – father arrested and convicted – friend attempted to leave the country and was arrested and convicted – warrant issued for applicant – credibility – inconsistent evidence – documentation – parents’ employment – circumstances of transfer of money to friend – delay in applying for protection – unlawful residence in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 424A
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Prasad v MIEA (1985) 6 FCR 155
Nagalingam v MILGEA (1992) 38 FCR 191
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sun v MIBP [2016] FCAFC 52
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 and Border Protection on 20 September 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 21 October 2015. The delegate refused to grant the visa on the basis that the material before the delegate did not establish the applicant is a person in respect of whom Australia has protection obligations, or that there were substantial grounds for believing that there is a real risk the applicant will suffer significant harm, as a necessary and foreseeable consequence of him being removed to China.
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 themselves 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.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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
The issues in this case are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J in China and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that they will suffer significant harm.
The Tribunal, in reaching its decision, has taken into account all of the evidence before it, as referred to above. It has also taken into account independent country information about China, including that referred to by the delegate in the decision record, a copy of which was provided with the review application.
With respect to country information, the Tribunal accepts that the Chinese authorities have undertaken extensive land confiscation to make way for property developments, and there have been significant protests about such confiscation. According to the Department of Foreign Affairs and Trade (DFAT):
Protests and petitions occur regularly across China. An estimated 180,000 popular protests (of more than 10 people) occurred in China in 2010, the last date for which official data is available. China Labour Bulletin (CLB) obtained details of 1,287 protests in 2017, and 1,318 protests between January and October 2018, but it estimates this only reflects one tenth of protests that occurred. Most protests concern land disputes, housing problems, industrial, environmental, and labour matters, and government corruption. Others are provoked by accidents or related to personal petitions, administrative litigation, and other legal
processes. While construction issues account for around 40 per cent of labour issues, in line with changing patterns of migrant work (see Employment), NGOs working on labour issues claim an increasing trend towards protests over service sector work (more than 20 per cent), rather than industry and factory work.
Despite recent reforms leading to improved legal protections for property ownership and
compensation for expropriated land, protests and petitions related to land seizures by officials and the conduct of developers remain common in China. According to the State Bureau of Letters and Calls (the national department responsible for local petitioning offices) in 2014, an estimated four million disputes over expropriated land and property demolitions occur every year. DFAT is aware of, but cannot verify, reports describing aggressive, and sometimes violent, action by private security contractors hired by property developers to manage protesters.
China’s Constitution and State Compensation Law (1994; amended 2010) enables citizens to seek compensation from the state but the public’s confidence in the judicial system and ability to afford lawsuits is generally low (see also Judiciary). The Chinese Government encourages Chinese citizens to submit complaints through government-controlled websites and local petitioning offices. Under regulations promulgated in 2014, the central government no longer accepts petitions that should be lodged at local government level. The regulations include measures designed to improve transparency and responsiveness. Sources report that local
[1] DFAT Country Information Report People’s Republic of China 3 October 2019.
officials are encouraged to ensure protests do not reach Beijing. The SCS [Social Credit System] can be used to restrict movement of people to prevent them from travelling to Beijing to petition the government In practice, the treatment of individual cases depends heavily on the attitude of local officials towards the individuals and circumstances in question, making it difficult to generalise.[1]
In relation to judicial reform in China, recent DFAT references note:
China’s 2016 White Paper on Judicial Reform includes measures to reduce political influence on courts, improve access to justice, strengthen professionalism of the judiciary, and increase transparency. In an effort to curb local corruption, new policy shifts funding of courts from the local to provincial level and courts have started recording attempts to influence proceedings. Since May 2015 there has been a mandatory nation-wide case filing system, through which courts cannot refuse to hear cases without sound legal justification.[2]
[2] DFAT Country Information Report People’s Republic of China 3 October 2019.
In relation to relocation options in China, recent DFAT references note:
DFAT assesses internal relocation is possible unless a person has attracted adverse attention from authorities at the local or national level or has a low social credit score. People subject to adverse attention from authorities or with a low social credit score are unlikely to be able to re-locate internally, due to the Chinese state’s significant surveillance capability and ability to restrict finances and travel.[3]
[3] DFAT Country Information Report People’s Republic of China 3 October 2019.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Applicant’s claims
In the ‘My claims’ statement provided with his application to the Department for protection, the applicant has made the following claims:
….I arrived in Australia on a student visa [in] April 2008.
I was born in [Location 1], [Village], [Town], Liianjiang County, Fujian Province. It was a beautiful place according to the mountain alongside the sea with lovely nature views. My parents used to run a [farm] for [produce] in my hometown.
….At Lianjiang [Middle School], Miss [A], who was also from [Village], became my good friend.
In January 2007, both [Ms A] and I returned to our hometown from Fuzhou during the winter school holiday. By then, both of us fell in love with each other, and expected that we could jointly study together in the overseas. However, [Ms A] 's father unfortunately became serious ill. Her family was immediately subjected to serious financial hardship, and even did not have money to continually support [Ms A] 's study. As a result, she had to drop out of Fuzhou [English School], and remained at [Village] in our hometown.
My parents really sympathized with [Ms A]'s father and their entire family and tried their best to help them. However, my parents did not agree my relationship with [Ms A]. They thought that we were too young to understand the love. But, both [Ms A] and I deeply loved each other. Although I returned to Fuzhou [English School] and continually studied there, I always kept in contacts with [Ms A].
[In] April 2008, I left China from Fuzhou airport. [Ms A] sent me to the airport and said good-bye to me in person. We hugged each other closely. She promised that she would wait for me and that we would get married and would depend upon each other forever. Unfortunately, just one month after I left China, my parents' [farm] was expropriated by the government. My father was arrested by the police, because he organized villagers' protests. Apart from an old house left by my grandfather, all of my family's properties had been confiscated. Therefore, it was impossible for my parents to support my study in Australia any more.
On the other hand, in June 2008, [Ms A] suddenly told me that she had to break her promises to me and get married with a rich man as the man could pay expensive medical costs for her father. I was greatly hurt mentally. My family's hardship plus my girl's betray made it impossible for me to continue my study. Consequently, I had to stop my study several months after I came to Australia.
I considered applying for a protection visa at that time, and made enquiries with several migration agencies. However, I felt that they just wanted to make money and that they could not genuinely help me at all. Moreover, they all told me that I had no chance to get successful. I had to give up in the end.
My father was arrested by the police in May 2008. He was accused of organising "illegal" gatherings which had seriously harmed social security. He was sentenced to 2-year reform through labour afterwards. He was not released until May 2010. During following years, my father was continually harassed by the police and local officials in our hometown, and he was unable to have any normal livings. In 2013, my father had to leave my hometown and go to Fuzhou. He worked as a [worker] on [locations].
[Ms A]'s father died of his illness as early as 2009. Her marriage was very much unhappy and she had to divorce in the end. After that, she remained at [Village] in my hometown. In order to have a new life, [Ms A] studied correspondence courses of Fujian [University] by herself. In 2013, she became a teacher of [Primary School] in my hometown after she successfully completed the correspondence courses.
[Ms A]'s excellent work at school made her quickly become an influential person in our hometown, and she enjoyed very good reputation among her students particularly the parents of her students. Therefore, when a lot of villagers protested against the government which planned to sell a large piece of land to a real estate company in July 2015, [Ms A] was naturally elected as a leader by the villagers. She organized the villagers to establish a special team to protect the land and not allowed others to occupy the land. On the other hand, she took some villagers to go to Fuzhou in order to petition to the provincial government, demanding the government to protect nature environment and respect basic human rights of the local villagers.
The provincial government in Fuzhou refused to consider reasonable demands of [Ms A] and other villagers. On the contrary, [Ms A] was accused of organising anti-government activities to severely harm state security. As a result, the government planned to arrest [Ms A]. [Ms A] had to find my father who worked in Fuzhou, and asked my father's help. My father first arranged [Ms A] to hide in a secret place. My father then, through his friends, contacted a "snake head" who was specialized in smuggling people to the overseas. But, it needed a lot of money. My father certainly did not have the financial ability. He had to contact me, expecting me to collect the money for it. So, in September 2015, I gave [Ms A] the money through my friend. Early in October 2015, [Ms A] tried to take the chance that many people would travel abroad during the public holidays of the National Day to escape from China. However, she was found by the police in Shenzhen. [In] October 2015, [Ms A] was arrested.
The police quickly found that my father and I had given strong support to [Ms A]. But, fortunately, my father successfully ran away before the police went to arrest him.
Today, both my father and I have been being wanted by the police in China. If I go back to China, I must be arrested by the police immediately.
When asked in the visa application if he experienced harm in China, the applicant has responded ‘no’. When asked if he moved or tried to move to another part of that country he has responded with ‘refer to attachment - My Claims’.
The applicant’s claims in his application for a protection visa are summarised as follows:
·     The applicant arrived in Australia in April 2008 and a month later his family’s [property], in which [produce] were farmed, was appropriated by the Chinese government;
·     His father was offered inadequate compensation and in conjunction with other affected villagers, organised protests;
·     His father was arrested by the Chinese police in May 2008. His father was accused of organising ‘illegal’ gatherings which had seriously harmed social security;
·     His father was sentenced to and served a two year ‘reform through labour’ detention and was not released until May 2010;
·     Apart from an old house left by his grandfather, all of the applicant’s family’s properties were confiscated;
·     Whilst he was in Australia, he was negatively impacted by what happened to his father and the family and also by a decision taken by a good friend from his school days, [Ms A], to marry. This affected his ability to study;
·     In response he ceased his studies and considered applying for a protection visa, but decided not to after making enquiries with several migration agencies, who told him he had no chance of success and because he felt the migration agencies just wanted to make money from him;
·     His father was continually harassed after his release from custody in May 2010 by police and local officials in [Village] and was unable to earn a normal living;
·     In 2013, his father left [Village] and went to Fuzhou City, where he worked as a labourer on [location];
·     [Ms A] completed her education after divorcing her husband in 2009 and became a respected teacher in [Village];
·     When, in July 2015, villagers in [Village] protested against plans by the Chinese government to sell a large piece of land to a real estate company, [Ms A] was elected as a leader by the villagers and she organised protest activities to protect and stop others occupying the land that was subject to the proposed development;
·     [Ms A] and some villagers went to Fuzhou City in order to petition the provincial government, which refused to consider the villagers’ reasonable demands and instead, [Ms A] was accused of organising anti-government activities;
·     [Ms A] sought out his father and she asked his father for help because the government planned to arrest her;
·     His father arranged to hide [Ms A] and then, through friends, connected her with a ‘snake head’ (people smuggler);
·     In September 2015, the applicant gave [Ms A] money to pay the people smuggler;
·     In October 2015, around the Chinese national day public holiday, [Ms A] was arrested by the police in Shenzhen, whilst trying to depart from China;
·     The applicant’s and his father’s role in assisting [Ms A]’s escape attempt was discovered by the Chinese police;
·     His father went into and has remained in hiding before he could be arrested;
·     The applicant and his father are wanted by the Chinese police and the applicant will be arrested immediately if he returns to China.
The applicant has provided to the Department a copy of his Chinse passport, issued [in] 2007.
Departmental interview
The applicant attended an interview with the Department on 15 August 2016, in which amongst other things he claimed:
·     His father was allocated an area for [a produce 2] farm around 10 years before the applicant came to Australia in 2008 and was, up until the land was appropriated a month after the applicant arrived in Australia, progressively allocated more area in which to farm;
·     Whilst his father had the largest [produce 2] farm in their area, lots of other [produce 2] farmers were also affected by the land appropriations for the new [development] that was planned;
·     He did not at the interview have evidence of his father’s arrest for organising village protests in 2008, or of his subsequent two year reform through labour detention;
·     He does have evidence at home of a ‘wanted certificate’ for his father in relation to a later incident;
·     He has had some, but not much, paid work in Australia;
·     He remained in Australia after he ceased his studies so that he could save money that he could take with him back to China;
·     His father left their hometown ([Village]) in 2013 to seek work in Fuzhou City;
·     He heard from his mother of a proposal land from his home town was to be sold to developers and that villagers protested about this;
·     A female friend from his youth, [Ms A], who was a teacher in his home town, organised the villagers to travel to their provincial government office where they held a protest;
·     [Ms A] was told by the mother of one of her students that she was at risk of arrest by the provincial government because of her involvement with the protest and [Ms A] decided she wanted to go overseas and she sought out the applicant’s father and asked him to help her connect with people smugglers;
·     He has had no contact with his father since May or June 2015. His mother told him in October 2015 that his father had gone to Jiangxi province, but he is unaware of his father’s actual location. His father left Fuzhou City to go to Jiangxi province because he was wanted by the police;
·     The reason that the applicant did not seek a protection visa before October 2015 was because he only saw a need to do so after his involvement in [Ms A]’s unsuccessful attempt to get out of China was discovered by the Chinese authorities;
·     The reason he did not return to China when he stopped studying in 2008 was not because of his father’s arrest or detention, but because he wanted to save money before he returned to China;
·     [Ms A] borrowed money from him, he sent her money. The people smugglers charge around [amount] RMB and he sent her $[amount], which was transferred into a Chinese bank account in August 2015. He threw away any record of this remittance transaction;
·     The fear that he will be arrested if he returns to China because of the assistance he provided [Ms A] in 2015 is the reason he applied for the protection visa;

Prior to the hearing the applicant provided the Tribunal with a further statutory declaration, dated 11 September 2019. In this document the applicant emphasises that it was his father’s connections to [Ms A] and the assistance he and his father gave her during her attempted escape from China that brought the Chinese government’s adverse attention onto him in 2015. His declaration emphasises it was this issue rather than his father’s previous protest activities in relation to the appropriation of the family [produce] farm in 2008. In this declaration the applicant also contends it was his involvement in [Ms A]’s escape plan, through financially supporting her, which brought the Chinese government’s adverse attention onto him rather than the mere act of his loaning money to a friend. The applicant declares that he applied for the protection visa in October 2015, as it was at that point in time that he formed the view he was at risk if he returned to China.
Hearing
During the hearing, the Tribunal discussed with the applicant his background, his family, where he lived in China, his reason for coming to Australia, his current circumstances in Australia and why he fears returning to China.
The applicant gave evidence that all of the information on the protection visa application and ‘My Claims’ statement was true and correct. When asked if there were any mistakes on the application or information that he wished to add the applicant said that when he was interviewed by the Department he made some mistakes because his mind was not working well and that he forgot some things and cannot even recall some things he said. When asked if he could recall any mistaken answers he may have provided, the applicant referred to a response where he said he had not had contact with his father from May or June 2015, when in fact he had five or six contacts with his father after those months.
In relation to the protection visa application, the applicant answered ‘No’ on the application form to the question as to whether he received assistance completing the application. At hearing he initially gave evidence he wrote the written ‘My Claims’ statement himself and when asked, confirmed this. He said that he was assisted in filling out the application form by a friend, [B]. When asked to comment on the sophisticated nature of the ‘My Claims’ statement at a different point in the hearing, given it has a sequence of paragraphs in the Chinese language, each of which are translated into grammatically accurate English, the applicant modified his evidence and conceded his friend [B] prepared the written statement, but maintained that he wrote the Chinese content which went into the statement.
The applicant gave evidence he grew up in [Location 1], [Village], [County], Fuzhou City, along with his parents and [sibling]. He said the family resided in the home of his grandfather and that his parents’ income came from a [produce] business. He said that his father initially farmed [produce 1] over an initial area of two Mu. He estimates the family involvement in this business commenced around 22 years ago, when he was [age] years old and that after a few years they expanded into [produce 2] farming and over time increased the size of the farm to around 30 Mu. The applicant said his parents had no other type of employment, or source of income, from the time they started the [produce] farm business. He said that his father worked full time in the [produce] farm and his mother also helped out by repairing and maintaining [equipment] used on the farm. In response to a question as to what sort of work his parents did before they started farming the [produce], the applicant said his father worked in [work sector], but that this was when the applicant was very young. He said his mother used to accompany his father to where the [work] was, but did not have a job.
The applicant gave evidence that his mother and [sibling] continue to live in his grandparents’ house in [Village], but that his grandfather died in August 2018. He said that his mother and [sibling] derive some income from growing [produce 3] on approximately one Mu of land that is attached to his grandfather’s house. He said that he does not know his father’s specific current address but that he has had contact with him as recently as September 2019 and that his father is moving around Jiangxi Province, working in [work sector].
The applicant gave evidence he came to Australia in April 2008 on a student visa. He said the plan was to study an English language course and then proceed to complete his secondary school education here. The applicant said his father had assistance from a friend to assist with the preparation of the student visa application and that he, the applicant, provided the information used in preparing the application.
The applicant gave inconsistent evidence at hearing about when he ceased his studies. He initially said he ceased study when ‘something’ happened and that he was unsure if he had by this time completed the English language course, as he received a letter about going back to high school. He then said that when he was studying he was also working part time and that he stopped studying after his father was arrested and detained. At a further point in the hearing the applicant said that he continued to study until 2009. When concern was put to him at hearing regarding this inconsistency, the applicant referred to the Departmental interview in which he said he stopped study in 2009, but did not further explain the inconsistency in evidence regarding when he ceased attending courses.
As to his current circumstances, the applicant gave evidence he rents a room in shared accommodation, paying $135 per week rent. He said he is employed by a man called [Mr C] as [an occupation 1] and earns $15 per hour. He said this provides an income of $120 to $150 per day, depending on how many hours he works. He said that he works between three and five days a week, depending on the availability of work. He said that prior to getting the job as [an occupation 1] he worked for a few weeks as [an occupation 2] and before that for around a year, whilst he was studying, in a [workplace].
The applicant’s evidence regarding his work history contained inconsistencies, as at hearing he initially claimed he had held employment paying $15 per hour for the past eight or nine years, that is, since 2010 or 2011 and at a later point in the hearing claimed he had only had employment paying at the $15 per hour rate since he applied for a protection visa, which was in October 2015.
The applicant gave evidence at hearing that he ceased his studies so that he could work and send funds to financially support his family in China after his father was arrested and detained. He said he continues to financially support his mother and [sibling] and that they have, since his father’s arrest in 2008, been reliant on him for financial support.
The applicant gave evidence regarding his father’s arrest and detention, but explained these circumstances did not result in him holding a fear for his own safety in China. He said his decision to not return to China after he stopped studying in Australia was influenced by a wish to earn money so he could send it to his mother in China, rather than his having a concern regarding risks to his safety, at that time, in China. He said he did not intend to stay in Australia permanently, but only for a relatively short period, so that he could work and financially support his family in China. He said that he needed to support his mother and [sibling] and that this was the reason he did not return. He said this was why he sought advice from lawyers about applying for a visa, to investigate the possibility of getting a visa for around two years only, as this would have provided him a legal basis to earn money in Australia whilst his father was in detention.
In relation to the claim his father was arrested and detained in 2008, the oral evidence provided by the applicant during the hearing was consistent with that contained in his ‘My Claims’ statement and his statutory declaration, dated 11 September 2019. He said his father was arrested for leading a protest involving other villagers from their local area who were, like his father, affected by the appropriation of the land and waterways used by them for [produce] farms. He said as his father’s [produce] farm was the largest in the village, his father was viewed as a natural protest leader and was the only person arrested when his father and other affected villagers unsuccessfully attempted to petition the provincial government in Fuzhou City about the inadequate amount of compensation they were offered. The applicant gave evidence his father was arrested in May 2008 and subsequently detained for two years in the [Labour Camp] in Fuzhou City. He said that the authorities provided no documentation associated with either his father’s arrest or detention.
The applicant gave evidence that neither his mother or his [sibling] were arrested or detained by the Chinese authorities and that whilst all other family assets, primarily the [produce] farm, were confiscated after his father’s arrest, his mother and [sibling] were able to continue to live in their grandfather’s home, as this was not confiscated.
In relation to his fear of what would occur if he were to return to China, the applicant said he would be arrested because of the assistance he provided a fugitive in China. He said this fugitive was an old friend from school, [Ms A], who drew the adverse attention of the Chinese government when she organised protests in [Village] when local government officials sold land to developers and offered inadequate compensation to affected villagers for the appropriated land.
The applicant said that after [Ms A] found out she was at risk of arrest she fled [Village] and sought out the applicant’s father, who was at this time working as [an occupation 3] in Fuzhou City. He said [Ms A] asked her father to assist her escape from China and that he helped her find somewhere to stay and then put her in touch with one of his friends, who in turn connected her with a people smuggler.
The applicant said his father contacted him in August 2015 and asked him to collect some money to go towards what [Ms A] had to pay the people smuggler, as she did not have enough money to pay what was charged. He said that his father did not ask him to send a specific amount but he decided he should send all the money he had accumulated as savings over the years he had worked in Australia since 2008. He said that he regarded the money as a loan and that at some future time [Ms A] may pay it back to him.
In response to a question as to why he became involved in a situation where he was financially assisting a person in relation to ‘snake head’ people smuggling activities in China, the applicant said he did what his father told him to do. As to why his father would have put himself at risk, given his past arrest and detention experiences, by helping connect someone with people smugglers, the applicant said his father was devoted to [Ms A] and he thinks his father agreed to assist her because he continues to feel anger about the issue of inadequate compensation for land confiscated from villagers.
In response to a question about the frequency of contact between him and [Ms A], the applicant said that they reconnected through [Social media] and social media after she divorced her husband and from that point they maintained some sort of contact on a fortnightly basis. He said he was unable to produce any evidence of communication or related social media contact between the two of them as he has changed phones a number of times and has not kept any records.
The applicant gave evidence that his mother has told him that [Ms A] was arrested [in] October 2015 when she tried to get through Customs and was subsequently sentenced to 11 years’ detention, which she is serving in the [County] female prison in Fuzhou City. He did not elaborate upon how his mother knew these specific details, beyond saying people in their local area heard about it.
As to how he got the money to [Ms A], he said he gave it to a friend who then took it to the Western Union office in [Suburb] and arranged for it to be transferred to [Ms A]. In response to a question as to why he needed to involve a friend in this process, the applicant said this was because he was at work on the day the funds were sent to [Ms A]. The applicant was unable to recall the actual date he sent his accumulated savings to [Ms A], but said it was either in the end of August or September. He said that he threw away the remittance receipt after he confirmed [Ms A] received the money because it was of no use to him.
As to why he would be linked to an attempt made by [Ms A] to leave China, given he has claimed he had no direct involvement with a financial transaction sending funds to her, the applicant said he was wanted in China by the police because [Ms A] told them everything.
As to how he knew what [Ms A] may have told the Chinese police, the applicant gave evidence his mother told him the police came to the family home in [Village] in mid-October 2015 and asked about his whereabouts. He said that his mother has told him that the police returned a second time towards the end of 2015 and told her that [Ms A] had told them everything. He said his mother informed him the police wanted him to turn himself in and that is why he fears returning to China.
The applicant gave evidence that the police gave his mother an arrest warrant in relation to his father. He initially said that he thinks they also gave her an arrest warrant in relation to him, but that he is not sure as when he checked with his mother, after his interview with the Department in 2016, she said she had burnt the arrest warrants. He said his mother burnt the documents because she is a Buddhist and is superstitious. The applicant subsequently claimed with more confidence that there was a warrant for his arrest issued, but that he was unaware of the significance of the arrest warrant at the time he applied for the protection visa in October 2015. He said that he thinks the arrest warrant in relation to him may have been given to his mother by the police when they made their second visit to the family home around the time of the Chinese New year at the end of 2015. At a further point in the hearing the applicant asserted with certainty that there is an arrest warrant in existence in relation to him and that this is why he does not want to return to China.
In relation to what branch of the Chinese authorities would want to arrest him, the applicant initially said it would be the police. When asked if he could be more specific he said he feared arrest from the local police at [Location 2] Police Station.
The Tribunal explained to the applicant that there is country information which indicates:
·     In China all of the land is owned by the government. It can be leased by people, but the law in China provides the government with the right to acquire the land for development projects and that the Chinese authorities have undertaken extensive land confiscation to make way for property developments;
·    The Chinese government encourages Chinese citizens to submit complaints through government-controlled websites and local petitioning offices, with an estimated four million disputes, in the form of petitions or protests resulting from expropriated land and property demolitions occurring every year;
·     Local authorities have some incentive to prevent people petitioning to higher authorities and there are credible reports describing aggressive, and sometimes violent action by private security contractors hired by property developers to manage protesters;
·     In recent times there have been both judicial reforms and anti-corruption measures put in place to prevent the corrupt suppression of petitioning and civil law cases initiated by people affected by land confiscations.
In response to this country information the applicant reiterated evidence he gave at an earlier point in the hearing about how [Ms A]’s activist behaviour was prompted by the inadequate amount of compensation offered to villagers potentially affected by proposed development and land confiscation in [Village]. The applicant contended the developers were likely to make a very considerable profit from developing the land that was to be confiscated and that affected villagers were left with only two options, to compromise or protest.
As to why any such protests by residents of [Village] would cause the applicant to have a rear of returning to China, given he and his family had no involvement with protests regarding this issue and did not hold land which may be affected by land confiscation in 2015, the applicant said it is only reasonable that he is scared to return to China as an arrest warrant has been issued for his arrest and the police have visited his family home on two occasions trying to ascertain his whereabouts. He said that he would have returned home in 2018, at the time of his grandfather’s death, if he thought it was safe.
In relation to whether he could relocate to a different part of China, rather than his home region, the applicant said that if he did so he would need to find work and accommodation and this may be difficult because his Hukou household registration system would be checked and it would show that there is an outstanding warrant for his arrest.
Information put to the applicant for comment pursuant to s.424A
Following the hearing, a letter was sent to the applicant, pursuant to s.424A, inviting him to comment on information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review. The particulars of information put to the applicant in the letter were:
First:
·     Documents provided with your application for a student visa, lodged with the Department on 20 September 2007, include an ‘Employment & Incomes Certificate ’, dated [September] 2007, from [Company 1], Fuzhou Development Zone, which states ‘[Mr D, job title] works for this company from July 2004 to the present’. Also provided was information regarding evidence of [Mr D]’s income from employment with [Company 1] in 2005 and 2006 and as well, a certificate from [Company 2], dated [September] 2007, which stated ‘This is to certify that [Ms E, job title] serves from this shop from January 2003 to the present’, along with information regarding her income from this employment position.
Whereas
·     During the hearing you gave evidence that your parents worked on a family [produce] business from when you were six or seven years of age and from that time your mother and father had no other form of employment or source of income. This is consistent with information provided in a Departmental interview you participated in on 15 August 2016, in which you said your father was allocated an area for [a produce 2] around 10 years before you came to Australia in 2008.
This information is relevant because the extent of the discrepancy between written and oral evidence you have provided in support of your claim for a protection visa and evidence provided at the time of your application to come to Australia on a student Visa gives rise to the concern as to whether your claims about your parents involvement in a [produce] farm and related claims arising from your parents claimed involvement in that farming business can be relied on.
If the Tribunal relies on the information in your Student visa application regarding your parents’ employment history, it may lead the Tribunal to conclude that your family did not own a [produce] farm and that your related claims arising from your parents’ involvement in that farming business is untrue. This may cast doubt upon the credibility of your claims that you are at risk of harm due to your parent’s involvement in a [produce] farm. This would be the reason of part of the reason for affirming the decision under review.
In the alternate, if the information in the protection visa is relied on as the correct account, the concern arises that bogus documents and false and misleading information regarding your mother and father’s circumstances were provided with your Student visa application. This raises a general concern as to whether information provided in support of your claims can be relied upon.
Second:
·     During your interview with the Department on 15 August 2016, when discussing your work history in Australia, you acknowledges you had been working, but you emphasised you had not got many jobs.
Whereas
·     During the Tribunal hearing you claimed you commenced work on a part time basis from when you started study in Australia and initially worked in a [workplace] and for a brief period as [an occupation 2] before securing a better paid job as [an occupation 1], a job you continue to hold until the present day. You gave evidence during the Tribunal hearing that you ceased study so as to have more time to earn money and that you earned sufficient income to meet your own living expenses, financially support your family in China who were reliant on this support and also accumulate savings of at least $[amount] in the period up to August 2015.
This information is relevant as the inconsistency between you claim in an interview with the Department in 2016 that you had not had many jobs and your oral evidence during n the hearing that you were working and earning sufficient income, as outlined above, gives rise to concern as to whether you provided truthful information at the time of your Departmental interview. If the Tribunal relies on this information, it may lead the Tribunal to conclude that you are not a reliable witness. This would be the reason of part of the reason for affirming the decision under review
Third
·     During the Departmental interview you participated in on 15 August 2016 you were asked when you stopped your studies in Australia you said that this was around 2009. You referred to this information in support of your oral evidence during the hearing that you studied and at the same time worked part time in Australia until 2009.
Whereas
·     The statutory declaration you signed on 11 September 2019 declares you terminated your studies about three months after you came to Australia. Given you arrived in Australia [in] April 2008, this would have been in or around July 2008.
This information is relevant as whilst the claim about when you ceased study, in the latter declaration, is consistent with some of the oral evidence you gave regarding this issue during the hearing it is not consistent with other information given during the hearing or the information you gave during your Departmental interview in 2016.
The inconsistency in the evidence you have provided regarding your study history in Australia gives rise to concern regarding the reliability of your evidence in support of your claims. If the Tribunal relies on this information, it may lead the Tribunal to conclude that you are not a reliable witness. This would be the reason of part of the reason for affirming the decision under review.
Fourth
·     In the Department interview you participated in on 15 August 2016 you gave the Department information to the effect of [Ms B] borrowed money from you, you sent her money. The people smugglers charge around [amount] RMB and you sent her $[amount], which was transferred into a Chinese bank account in August 2015. You threw away any record of this transaction
Whereas
·     In the ‘My Claims’ statement you submitted with your visa application you stated, ‘So, in September 2015, I gave [Ms A] the money through my friend’.
This information is relevant as there is an inconsistency between the claim you gave [Ms A] money through a friend and that money, namely $[amount], was deposited into a Chinese bank account for her. This gives rise to concern regarding the reliability of your evidence in support of your claims. If the Tribunal relies on this information, it may lead the Tribunal to conclude that you are not a reliable witness. This would be the reason of part of the reason for affirming the decision under review.
Fifth
·     During your interview with the Department on 15 August 2016 you said you had the warrant certificate for your father at home but that you had not taken it with you to the interview.
·     During your interview with the Department you said the warrant notice regarding your father also included [Ms A]’s name and you made no reference to a warrant being issued in relation to you.
·     During your interview with the Department you were also asked on a number of occasions why you feared to return to China and what you thought would happen to you if you returned to China. At no stage of your interview with the Department did you claim that the Chinese Police gave your mother an arrest warrant in relation to you, or that you were included on the arrest warrant which named your father which you claimed was at your home.
Whereas
·     During the Tribunal hearing you gave evidence that a warrant for your father’s arrest was given to your mother by the Chinese police and that you think they also gave her a warrant for your arrest.
·     During the Tribunal hearing you initially claimed you mentioned the warrant for your arrest when you were interviewed by the Department about your Protection visa application and then retracted this claim and said you were only asked about your father during the interview.
·     During the Tribunal hearing you gave evidence that your mother burnt the warrant notices because she is a Buddhist and superstitious and because she did not think they were important.
This information is relevant because of the inconsistency in your evidence regarding arrest warrants you claim were issued by the Chinese police. In conjunction with your explanation for why you cannot produce these documents, namely that your mother burnt them as she considered them not important is not consistent with your claim you had the warrant regarding your father at your home. Your statement that it was at your home but you had not taken it with you to the interview indicates it was in existence and suggests it was available for you to have taken with you, not that it was in your family home in China, nor that it was no longer in existence because your mother had destroyed it. This gives rise to concern as to whether your evidence in relation to these claims can be relied upon, and in particular, whether arrest warrants for you or your father exists. If the Tribunal relies on some or all of this information it may form the view that there was no warrant for you or your father’s arrest. This would be the reason of part of the reason for affirming the decision under review.
This information is also relevant as a review of your interview with the Department shows, contrary to your claim you were only asked about your father, that you were on a number of occasions asked why you feared returning to China and what you thought would happened to you if you went back to China.
If the Tribunal relies on this information it may form the view that you are not a truthful witness and that your evidence in support of your claims cannot be relied on, if so, this information would be the reason, or part of the reason for affirming the decision under review.

On 29 October 2019 the Tribunal received a response from the applicant in the form of a statutory declaration, dated 28 October 2019, which stated:
1)I have been invited to comment on or respond to information given by the Administrative Appeals Tribunal (the Tribunal) on 17 October 2019). I would like to make my responses as follows.
First
2)To start off, I want to clarify that the claims I made at the hearing and at the interview are my own words and represent the truth. On the other hand, the information contained in my student visa application was not submitted by me personally. As a matter of fact, the application in relation to my student visa was planned, organized and prepared by my father's friend. Particularly, neither have I nor my parents signed in person any documents in relation to my student visa. I am actually entirely unfamiliar with the information there. From the information provided by the Tribunal in the letter, it seems like the information in my student visa is incorrect.
3)I recognise this may cause the Tribunal to cast doubt over the information in my current application, however. I want to assure the Tribunal that I personally submitted the information in my protection visa application, that I have personally signed relevant documents, and that I am entirely responsible for the information contained in it. Hence, it is undoubtedly the truth.
Second
4)I believe I must have been unclear in my message during the interview with the Department on 15 August 2016 in regarding to the issue discussed in the second paragraph. To clarify, I did not intend to mean that I "had not got many jobs". I meant to say that the jobs 1 had were not very stable and I found myself looking for new jobs very frequently. These jobs were also hard to come by but I was able to find jobs here and there eventually.
Third
5)In my statutory declaration signed on 11 September 2019, I was not trying to express that I "terminated (my) studies about three months after (I) came to Australia". Three months after I came to Australia was when I started working part-time because I could not afford to meet basic living standards as well as tuition fee otherwise. Inevitably, working part-time prevented me front entirely concentrating on my studies, however, I still continued studying for a while before entirely giving up in 2009. To clarify, in my statutory declaration, I meant to express that I started working part-time three months after arriving to Australia and it severely affected my ability to study, however, I did not stop entirely for some time.
Fourth
6)With regards to the fourth issue, my claims in both the Department interview and in the "MY Claims" statement are actually describing the same situation; however, it seems like I did not clarify it completely on both occasions. To clarify, I did send money to [Ms A]. However, I did not do so by myself, but asked my friend to transfer the 'money into a Chinese bank account for [Ms A]. because I had to work on that day. Also, when my friend gave me the record of transaction afterwards, I threw it away.
Fifthly
7)With regards to the fifth issues, firstly. I did not mention, at the Department interview, that I had the warrant certificate for my father at home but that I had not taken it with me to the interview. This seemed to be inconsistent with my evidence given by the Tribunal's hearing. To clarify, when I was at the interview, it was to my knowledge that my father's arrests was at my home. However, unbeknownst to me, my mother had actually already burned it due to her superstitions. So, in reality, I did not even have my father's arrest warrants during the interview either. Unfortunately. I did not know of this until much after the interview and, hence. I gave different answers between the interview and the hearing.
8)Secondly, I have never ever said that "the warrant notice regarding" my father "also including [Ms A] 's name" at the interview. I thought that there would be some mistakes made either by the interpreter or by the Department.
9)Thirdly, I accept that I did not mention the warrant in relation to me. I also accept that I was asked on a number of occasions why I feared to return to China at the Department interview. However, I really did not realize that the Department actually intended to find whether or not there was a warrant in relation to me. In order words. I was not put a question directly to me about the warrant for me. So, I did not mention it at the interview
Receiving country
The applicant claims to be a citizen of China and has provided a copy of his Chinese passport to the Department. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of China and that he is outside his country of nationality. The Tribunal finds that China is his receiving country for the purpose of assessing his claims for protection.
Third country protection
There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
Assessment of claims
Credibility
The Tribunal did not find the applicant to be a truthful witness. In reaching this view, the Tribunal has had regard to internal inconsistencies within the applicant’s evidence, inconsistencies between the applicant’s evidence and the country information before the Tribunal, as well as other reasons detailed below. The Tribunal does not consider that things like minor changes in dates, details omitted from claims in the written application, or mistakes and omissions from an applicant’s personal history would, on their own, undermine an applicant’s credibility. However, when the evidence set out here, some of it on critical matters, is considered cumulatively the Tribunal finds these things together take on more significance and so have been given weight.
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal is also mindful that if it makes an adverse finding in relation to a material claim made by them, 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.[4] 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.[5]
[4] MIMA v Rajalingam (1999) 93 FCR 220.
[5] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The mere fact that a person claims a fear of persecution for a particular reason does not establish the genuineness of the asserted fear or that it is for the reason claimed or that it is well founded. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself in as much detail as is necessary to enable the decision maker to establish the relevant facts. A decision maker is not required to make the applicant’s case for him. Nor is the Tribunal required to accept uncritically any and all of the allegations made by an applicant.[6] There is no burden upon the Tribunal to make out a case that an applicant has failed to adequately advance.[7]
[6] MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at [169-170].)
[7] Sun v MIBP [2016] FCAFC 52 at [69].
First: Parents’ employment up until September 2007
Whilst the applicant’s claimed reasons for holding a fear he will be arrested if he returns to China focus on his claimed involvement with an attempt by [Ms A], to leave China, his claims in relation to his father being arrested and detained for organising village protests following inadequate compensation offers for confiscated farming leases, form a prominent part of his overall claims. I have significant concerns with the applicant’s claims in relation to this issue, which stem from differences in the evidence he has provided as part of his application for a protection visa, about his parents’ involvement in the [produce] business and evidence which was provided in association with the student visa he was granted in 2008.
In the ‘My Claims’ written statement provided with the protection visa application the applicant states ‘My parents used to run a [farm] for [produce] in my hometown’. He made similar claims in a statutory declaration, dated 11 September 2019 and also when interviewed by the Department in August 2016, where he stated his father worked on the [produce 2] farm and that his mother also helped out on the farm.
At hearing I asked the applicant when his father began his involvement with the [produce] farm and the applicant said his father started farming [produce 1] around 22 years ago, namely in or around 1997 and within a few years started progressively expanding this enterprise through farming [produce 2] and also acquiring a larger [area] on which to farm.
At hearing I raised the issue of whether the applicant’s father or mother had other employment and the applicant gave clear evidence that his father and mother had held no other employment from the time the [produce] farm started in or around 1997.
In stark contrast to these aforementioned claims, documents included with the applicant’s application for a student visa, lodged on 20 September 2007, included an ‘Employment & Incomes Certificate’, dated [September] 2007, from [Company 1], Fuzhou Development Zone, which states ‘[Mr D, job title] works for this company from July 2004 to the present’. Also provided was information regarding [Mr D]’s income in 2005 and 2006. Further to this, a certificate from [Company 2], dated [September] 2019, which stated ‘This is to certify that [Ms E, job title] serves from this shop from January 2003 to the present’ along with information regarding her income from this employment.
In response to the information about his parents’ employment from the student visa application being put to the applicant pursuant to s.424A he contends that the information provided in association with his student visa was false and information he has provided in association with his protection visa should be preferred. He contends more weight should be accorded to the protection visa related claims about his parents’ employment because they are in his ‘own words’, whereas the student visa application was ‘planned, organized and prepared’ by a family friend and that he is ‘entirely unfamiliar with the information’ in the student visa application. He contends neither he nor his parents signed any documents associated with the student visa application.
I have carefully considered the claims of the applicant in relation to his father’s [produce] farm and contrasted these with the evidence regarding his parents’ employment status in 2007, as documented in the student visa application lodged in September 2007. I find that there is a significant discrepancy, in that in relation to his protection visa application the applicant claims his father and mother have had no employment, other than their involvement in the family [produce] business, since in or around 1997, whereas documents provided in 2007 indicate his father had been employed as the [job title] of a [business type] since July 2004 and his mother, as a [job title] in a [business type] since January 2003.
I have considered his explanations for the inconsistency in this evidence but I do not find them at all convincing. The documents provided with the student visa application are from independent third parties, namely business entities in China and there is no persuasive evidence before the Tribunal which establishes they are bogus or falsified documents. In the particular circumstances of this case, where the applicant is not provided any documentary evidence to substantiate his claim regarding his father’s ownership of a [produce] farm business I am not persuaded weight should not be accorded to the evidence establishing the employment status of the applicant’s father and mother in 2007 and the years preceding that time.
I am not persuaded by the applicant’s contention the documents attesting to his parents’ employment and employment income, which were provided with the student visa application, should be disregarded. This is because a review of these documents shows they are on official letterheads of the businesses referred to and the earnings information is provided on documents that appear legitimate.
Whilst the Tribunal acknowledges a person who does not feel safe in their home country may use false documents in order to flee that country, this is not a relevant consideration in this case, as the applicant has put forward no claims that he, or his parents had any concern for his safety when his student visa application was lodged in 2007. There is no evidence before the Tribunal to establish why the applicant and his parents would have perceived a need to falsify evidence in relation to the student visa application. If taken at face value, the applicant’s protection related claims in relation to his family circumstances in or around 2007, was that the family was financially secure and wealthy through income from the [produce 2] business and there is no plausible reason as to why they could not have relied on their claimed financial circumstances to support the applicant’s student visa application.
In the s.424A response the applicant contends all the information provided in support of his protection visa application is undoubtedly true, as he has signed relevant documents and takes responsibility for them. The Tribunal is not persuaded by this claim and has noted that at hearing the applicant said the student visa application was prepared with the assistance of a friend of his father, on the basis of information provided by him and his father.
In comparison to the documentation regarding parental employment and employment income provided with the student visa application, there is no documentation to support claims in relation to the families’ involvement in [produce] farming. The applicant concedes he has ongoing contact with his mother, who continues to reside in the family home in [Village]. The applicant has had opportunity, since 2015, to ask for documentary evidence from her to support his claims and has not produced any.
The discrepancy in the applicant’s claims in relation to this issue, and his inability to provide a convincing explanation for why there is such a significant discrepancy, lead me to disbelieve his claims in relation to his father’s past ownership of a [produce] farming business. Further, given the significance of this claim, this leads me to doubt his other claims, and his general credibility.
Second: Arrest warrants
A further concern is that at the hearing the applicant explained that a document which is quite central to his claims cannot be produced because his mother burned it. This is an arrest warrant about which the applicant’s evidence contains a range of inconsistencies. The applicant did not refer to any such document in his application for the protection visa, or in the ‘My Claims’ statement associated with the application. During his interview with the Department in August 2016, when asked if he had evidence to support his claim regarding his father’s arrest and detention in 2008, the applicant referred to a ‘wanted certificate’ regarding his father which that applicant had at home, but which he had not taken to the Departmental interview. Upon further clarification during the interview the applicant indicated the wanted certificate referred to a later incident and at a further point in that interview said that [Ms A] was also named on the ‘wanted notice’, hereafter referred to as the ‘arrest warrant’.
If produced, an arrest warrant would provide strong evidence in support of important aspects of the applicant’s claims. However, at hearing, the applicant said he contacted his mother after the Departmental interview and discovered she burned the arrest warrant regarding the applicant’s father. A concern I have in relation to this claim is that the applicant told the Department in August 2016 that he had left the ‘wanted certificate’ hereafter referred to as the ‘arrest warrant’ at his home, which was at that time in Australia and there is therefore a significant discrepancy between that earlier claim and evidence he gave during the hearing.
In the s.424A response the applicant contends he did not mention, at the Department interview, that ‘I had the warrant certificate for my father at home but that I had not taken it with me to the interview’. The Tribunal accepts he did not make this specific statement during the interview, but is satisfied the applicant claimed during the interview that he had a warrant (about his father) at home issued by the government and that he made this statement after indicating he did not have evidence with him to support a claim his father had been arrested and detained. The Tribunal does not accept these particulars of information are inconsistent as contended by the applicant in his s.424A response. The Tribunal does not find the applicant’s explanation for why he did not subsequently produce the arrest warrant he had referred to, namely because his mother burned it due to her superstitions, convincing.
The Tribunal accepts interpreting inaccuracy may account for conflating the applicant’s statement an arrest warrant was issued in relation to [Ms A], to be that she was mentioned on the same arrest warrant as that pertaining to his father. However the Tribunal is satisfied the applicant did claim during the interview that he was aware an arrest warrant was issued for [Ms A].
At hearing, the applicant claimed that the Chinese police gave his mother an arrest warrant pertaining to him in the later part of 2015, which she also burnt. I found this aspect of the applicant’s claim improbable for two reasons. First, the applicant initially claimed he had mentioned the arrest warrant regarding him to the Department when interviewed in August 2016, then retracted this evidence, explaining that whilst there was an arrest warrant for him, he did not mention it because he was only asked about his father during the Departmental interview. His comments in the s.424A regarding this particular of information are consistent with those provided at hearing. I do not accept this is an accurate summation of the interview he participated in with the Department, where he was explicitly asked about the basis on which he had concerns about returning to China and as to what he feared would happen if he returned to China. I find it not plausible that when asked these sorts of questions, the applicant would not have considered it relevant to explain an actual arrest warrant issued about him, if it had indeed been issued, which would not have formed a basis for his fear as to what would happen to him if he returned to China. The applicant’s claim that because he was not directly asked about a warrant in relation to him he did not mention it at the interview is in the Tribunal’s view not convincing.
Second, I find it improbable the applicant’s mother would have burnt such documents because she either considered the arrest warrants unimportant as claimed by the applicant, at hearing, or because of her belief in Buddhism and superstitious nature leading her to consider the documents unlucky.

The discrepancy in the applicant’s claims in relation to the issue of arrest warrants, and his inability to provide a convincing explanation for why he is not able to produce the arrest warrant for either his father or himself lead me to disbelieve his claims in relation to the existence of these documents. Given the significance of this claim, this leads me to further doubt the applicants other claims, and his general credibility.
Third: The Method of getting funds to [Ms A] to support her escape plan
There were inconsistencies in the applicant’s evidence about the method by which he got funds to [Ms A] to support her attempt to leave China.
In the ‘My Claims’ written statement provided with the protection visa application the applicant states, ‘I gave [Ms A] the money through my friend’. The money he refers to is money his father expected him to collect for [Ms A] to assist her pay people smugglers to get her out of China. During his interview with the Department, the applicant said he sent [Ms A] money, but that he had no evidence of bank transfers linking him to any such transaction.[8] In his statutory declaration, dated 11 September 2019 the applicant contends the Department was unfair in not accepting his claim to have sent this money to [Ms A] on the basis he could not produce evidence that does not exist.
[8] Protection visa assessment decision record p.11.
At hearing, the applicant gave evidence he gave his savings to a friend who took it to a Western Union office in [Suburb] and arranged for it to be transferred to [Ms A] in China. He said he needed to ask a friend to do this because he was at work and he was given a remittance receipt from this transaction, but that he threw it away as once he confirmed [Ms A] had received the money the record of the transaction was of no use to him.
In the s.424A response the applicant reiterates his claim he asked a friend to transfer money supplied by him to a Chinese bank account for [Ms A]. He reiterated that he did not make the transaction himself as he was at work and that he threw away the transaction record after his friend gave it to him.
The applicant’s contention that he did not perceive a financial record of the remittance of his life savings to an old school friend who he hoped may at some future time repay the money, would be of value to him, is in the view of the Tribunal unconvincing. It is also not apparent to me why it being a work day precluded him remitting funds through a Western union outlet in [Suburb], NSW, given the accessibility and hours of operation of Western Union outlets in [Suburb] alone, let alone adjoining suburbs of Sydney[9]. I do not find the applicant’s assertion he gave the money to a friend to remit on his behalf convincing and in my view it does not resolve the inconsistency in his evidence as to the method by which he claims he sent funds to China in August or September 2008.
[9] >
I am also not persuaded the applicant has provided a convincing explanation for why he would have, when asked by his father to provide some money, decided to send all of the accumulated savings from his working unlawfully in Australia to a person he had known at school, but with whom he had no direct contact for over seven years. The applicant has been unable to provide any communication records supporting his claim to have had fortnightly social media contact he claims he maintained with [Ms A] after her marriage broke down. He claims this is because he has changed phone on a number of occasions and therefore no longer has the communication records. I do not find this explanation convincing, as It is not apparent to me why he could not access cloud based social media and related communication records from any phone which he linked to his own social media accounts. After reviewing the available evidence, I am not satisfied it supports the applicant ’s claim to have maintained fortnightly social media contact with [Ms A] since she divorced her husband.
The lack of a convincing explanation for why he would have given his accumulated savings to a person with whom he had not maintained regular contact since he came to Australia in 2008, when considered with the inconsistencies in the applicants statements and the lack of evidence to support his claim to have remitted funds to [Ms A], with the assistance of a friend, lead me to disbelieve his claims in relation to the remittance of these funds. This in turn gives me concern as to the reliability of claims made by the applicant about risks to his safety in China, which he contends flow from this financial transaction.
Fourth: Inconsistent evidence regarding work history in Australia
Whilst the applicant’s work history in Australia is not directly pertinent to whether he is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, the inconsistencies in his evidence in relation to this issue gives rise to concern as to his general credibility.
On the application for a protection visa lodged by the applicant on 19 October 2015 he answered ‘No’ to a question as to whether he was employed at that time. When interviewed by the Department in August 2016 the applicant acknowledged he had done some work since he arrived in Australia in 2008, but emphasised he had not had many jobs.
At hearing the applicant gave inconsistent information regarding his employment history, he initially said he worked in a [workplace] for a round a year whilst he was studying, followed by a few weeks work as [an occupation 2], before getting work as [an occupation 1], which paid $15 per hour. He said he had worked as [an occupation 2] for eight or nine years, that is since 2010 or 2011. At a further point in the hearing he stated he did not start working in a job paying him $15 per hour until after he applied for the protection visa, which was in October 2015.
In response to the information about what he said in relation to his employment history being put to the applicant pursuant to s.424A he has reframed the statement made during his interview with the Department in August 2016, to reflect what he would now suggest he meant to say, rather than what he actually said. The Tribunal considers this to merely be an attempt on the part of the applicant to sculpt a past statement to resolve an inconsistency in his evidence. The Tribunal does not find this explanation persuasive and notes the s.424 response does not address other inconsistencies regarding his employment history which were highlighted in the s.424A letter.
I find there is a discrepancy between the applicant’s claim he had worked [doing occupation 1], earning $15 per hour, for eight or nine years and his claim he had only commenced work in a job paying $15 per hour after applying for a protection visa in October 2015. I have considered his explanations for the inconsistency in this evidence but I am not persuaded by them.
The inconsistency in the applicant’s evidence as to his employment history, and his inability to provide a convincing explanation for these inconsistencies leads me to further doubt the reliability of the applicant’s evidence in support of his claims.
Fifth: Inconsistent evidence regarding study history in Australia
There are inconsistencies in the applicant’s evidence as to his study history in Australia. I am aware this also does not go directly to whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, in my view the inconsistencies in his evidence in relation to this issue add to concern as to his general credibility. In the ‘My Claims’ written statement provided with the protection visa application the applicant states ‘Consequently, I had to stop my study several months after I came to Australia’. The applicant arrived in Australia [in] April 2008. This would therefore presumably indicate the cessation of study several months after April 2008, in or around June or July 2008.
When interviewed by the Department in August 2016 the applicant had difficulty giving precise information as to when he ceased studies in Australia, he said it was before 2010 and then said it would have been in 2009.
In the statutory declaration the applicant signed on 11 September 2019 he declares ‘Consequently, my parents were unable to support my study in Australia, and it was one of the main reasons why I had to terminate my study about three months after I arrived in Australia’. This would imply the applicant ceased study in or around the middle of June 2008.
At hearing, the applicant claimed he continued to study until 2009, but also explained his wish to earn sufficient funds to enable him to send funds to his family in China resulted in him deciding to cease study after his father was arrested and detained. He claims this occurred in May 2008. He explained that attending his course restricted the hours he had available to work and that he resolved this problem by ceasing his studies.
In the s.424A response the applicant claims that in the statutory declaration he signed on 11 September 2019, he was not trying to express that he ‘terminated (my) studies about three months after (I) came to Australia’. The Tribunal does not accept this claim. The specific wording in the statutory declaration, as outlined following, is quite clear and unambiguous ‘Consequently, my parents were unable to support my study in Australia, and it was one of main reasons why I had to terminate my study about three months after I arrived in Australia’.
I find there is inconsistency in the applicant’s evidence as to when he ceased study for which he has not provided a convincing explanation. In my view, the s.424A response seeks to reframe the meaning of the aforementioned statement to mean something other than what it actually says and the Tribunal is not persuaded by this aspect of the applicant’s s.424A response.
I accept his decision to stop studying was so that he could have more time to work in paid employment. I am however not convinced the applicant ceased study because his family could no longer financially support his studies. This is because the evidence provided with his student visa application, which I am not persuaded should be disregarded, indicates his parents were both in stable employment in 2007 and I am not persuaded their capacity to complement the income the applicant was earning from the part-time employment, was insufficient for him to maintain study in the courses which were the basis of his coming to Australia on a student visa.
As to the applicant’s claim he ceased study because he could not effectively study whilst working part time, I do not find this claim persuasive, as achieving a balance between part- time employment and study is a challenge successfully faced by many tertiary students in Australia and the applicant has not provided a convincing explanation why he was not able to do so, beyond indicating he wished to maximise his income earning.
Whilst inconsistencies in evidence regarding the applicant’s study history in Australia are not central to consideration of whether he is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, I am not satisfied he has provided a credible explanation for these inconsistencies.
Conclusion on credibility concerns
Each of the aforementioned inconsistencies is of some concern when looked at individually. When considered cumulatively they raise doubts about the credibility of the applicant’s claims and I am not satisfied his evidence in support of his claims can be relied upon.
The applicant has put forward an explanation for why, during his interview with the Department in August 2016, he claimed to not have had contact with his father after May or June in 2008. He claims his mind was not working well during the interview, causing him to forget things. I have reviewed the audio record of the interview and I am not persuaded by this claim. The applicant was at times hesitant in his responses, such as when asked to explain an apparent paradox arising from his aforementioned response and other claims he has made about communicating with his father in August 2015 in relation to [Ms A]’s escape attempt, or at another point where he was asked if he could produce evidence of his father’s arrest after he had stated he had evidence about this issue. In my view the applicant’s hesitation in responding to these and some other questions put to him during the hearing did not reflect apparent impairment resulting from cognitive difficulties or stress. His general responses during the hearing appeared well attuned to the questions put to him and appear to reflect a person who was orientated effectively to time and place and was taking time to think about his responses.

100. A further concern I have about the applicant’s claims is that it appears improbable to me that [Ms A] would have thought to seek out the applicant’s father to seek assistance connecting with people smugglers.
101. The applicant departed from China at a time there were no apparent concerns as to the safety of him or other members of his family. I have preferred the evidence provided by the applicant at hearing, where he said there was no concern as to the validity of the student visa application, or information provided in support of that application, over the comments he made about the student visa application in his s.424A response. I find there is not persuasive evidence before me to suggest the applicant departed from China in any but a lawful manner upon the basis of truthful information provided with his student visa application. There is no indication that the applicant’s departure would have been associated with people smugglers or illegal departures from China.
102. At the time it is reported [Ms A] sought out the applicant’s father in 2015, he is reported to have been a person fallen on hard times, who had left [Ms A]’s local district some years previously. In contrast [Ms A] is described as a person in stable and respected employment as a teacher in [Village]. She comes from a region of China where people often travel offshore for study or other reasons and it is not apparent to me why [Ms A] would not have sought advice from other well respected people in her home town if she was seeking advice about departing from China.
103. I am not satisfied the evidence demonstrates why [Ms A] would have sought out the applicant’s father on the basis he had assisted the applicant to get a visa providing a reason for departure from China on the basis the applicant had some years earlier left China on a student visa to come to Australia, when she would have had alternate sources of advice regarding applying for this sort of visa. I am also not satisfied the evidence demonstrates why [Ms A] would have presumed the applicant’s father had friends with ‘snake head’ contacts and that he would be a person who could facilitate her departure from China as a ‘wanted’ person.
104. I understand that generally it is not appropriate to expect that a person seeking a protection visa will be able to provide documents to establish their claims. However, in this case I find it concerning that the applicant is not able to provide any documents in support of his claims. In forming this view, I note the applicant claims to have maintained fortnightly social media contact with [Ms A] since she divorced her husband, but cannot produce any records of communication because he has changed phones on a number of occasions. Given social media records are linked to accounts and not specific pieces of equipment, I do not find this explanation convincing. The applicant claims copies of arrest warrants regarding him and his father were burnt by his mother and therefore not available to produce, despite having previously claimed he had a copy of the arrest warrant regarding his father located in his home. The applicant has also claimed he threw away the remittance receipt, which was the only actual documentary evidence of his having sent funds to [Ms A]. He has conceded these funds were the accumulated savings from working unlawfully in Australia over a period of years and in light of there being no apparent risks arising from retaining a record of this transaction in Australia, I am not satisfied the applicant has provided a convincing reason as to why he threw such a document away.
105. Given my concerns as discussed above, this leads me to further doubt the claims of the applicant and his overall credibility.
Findings
106. Having considered all the applicant’s claims and all the evidence, the Tribunal finds aspects of the applicant’s evidence to be inconsistent, contradictory, unpersuasive and unconvincing. The Tribunal finds that the applicant is not a witness of truth. Given these concerns, I find that I do not accept the claims of the applicant, and find that he is not credible in his claims.
Does the applicant have a well-founded fear of persecution if he returns to China?
107. The applicant’s claim is that he has drawn the adverse attention of the Chinese authorities through providing financial support to an old school friend, [Ms A], who was wanted and subsequently arrested and detained by the Chinese police. He claims [Ms A] used funds provided by the applicant in an attempt to depart from China. The applicant claims he will be arrested by police from [Location 2] Police station if he returns to China because of an arrest warrant issued as a result of the financial support he provided [Ms A] to aid her attempt to leave China. In relation to this and other claims made by the applicant in support of his protection visa application, the Tribunal makes the following findings.
108. The Tribunal accepts that the applicant was born on [date] at [Location 1], [Village], [Town], Lianjiang County, Fujian Province. The Tribunal accepts he applied for a [student] visa [in] September 2007, which he was subsequently granted on the basis of a stated intention to study an English for High School preparation course, followed by Years 11 and 12 of Senior Secondary School and in that application provided documentary evidence of his father’s employment as the [job title] of a [business type] in Fuzhou City and his mother’s employment as [job title] in a [business type].
109. The Tribunal accepts the applicant arrived in Australia [in] April 2008 and subsequently ceased study in or around June 2008, resulting in the cancellation by education providers of the courses he was at that time enrolled in. The Tribunal accepts the applicant’s [student] visa ceased [in] March 2010.
110. The Tribunal accepts the applicant knowingly remained in Australia unlawfully until he was granted a bridging visa associated with the protection visa application on 23 October 2015. The applicant accepts the applicant’s claim that his decision to remain in Australia from when he ceased study in 2008 until October 2015 was because he wished to earn money before returning to China. The Tribunal does not accept the applicant contemplated applying for a protection visa in or around 2008. I do not accept the applicant’s claim he would have returned to China following his grandfather’s death but for his concern he would be arrested there, as I do not accept there is an established reason why he would be arrested. I do not accept his capacity to relocate and work in parts of China, other than in his home region, would be difficult because checks of his Hukou registration would identify him as wanted by the police, as I am not satisfied the evidence has established the applicant is wanted by the police in China.
111. The Tribunal does not accept a family [produce] farm was confiscated by the Chinese authorities. The Tribunal does not accept the applicant’s father was arrested for organising protests in relation to the confiscation of his and other villagers’ [produce] farms. The Tribunal does not accept the applicant’s father was detained over a two year period between May 2008 and May 2010 in a reform through labour detention facility. The Tribunal does not accept the applicant’s father was subject to ongoing harassment from the Chinese authorities in the period from June 2010 to 2013, or that his decision to relocate to Fuzhou City in 2013 was because of any such ongoing harassment.

112. The Tribunal does not accept that a friend from the applicant’s school days in China, [Ms], organised protests to delay the appropriation of land in [Village] in 2015, or that she subsequently organised villagers from [Village] to try and petition the provincial government in Fuzhou City. The Tribunal does not accept [Ms A] developed concerns for her safety because she became aware she had drawn the adverse attention of the Chinese authorities.
113. The Tribunal does not accept [Ms A] sought assistance from the applicant’s father in relation to connecting with people smugglers to assist her to leave China, nor that in the process of providing her with that assistance the applicant’s father hid [Ms A]. The Tribunal does not accept the applicant transferred funds to [Ms A] for the purpose of helping her pay costs associated with attempting to leave China illegally. The Tribunal does not accept [Ms A] was arrested by the Chinese authorities in October 2015.
114. The Tribunal does not accept arrest warrants were issued by the Chinese police for either the applicant or his father, or that the arrest of [Ms A] and the issue of arrest warrants caused the applicant’s father to go into hiding, or that it brought the applicant under the adverse attention of the Chinese authorities.
115. The Tribunal accepts that the applicant would like to live in Australia and that he does not wish to return to China. The Tribunal is not satisfied that he is at risk of serious harm or significant harm for any of the reasons claimed if he returns to China now or in the reasonably foreseeable future.
116. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, I find that there is no real chance that the applicant will suffer significant harm amounting to persecution from anyone for any reason, if he returned to China, now or in the reasonably foreseeable future.
117. 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 s.36(2)(a). 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).
Does Australia have protection obligations to the applicant under the complementary protection criterion?
118. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a protection visa pursuant to the complementary protection criterion.
119. In MIAC v SQRB[10] the Full Federal Court held that a ‘real risk’ test imposes the same test as the ‘real chance’ test applicable to the assessment of ‘well-founded’ fear’ in the Refugee Convention definition.
[10] MIAC v SZQRB [2013] FCAFC 33 (Landeer, Besanko, Gordon, Flick and Jagott JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].
120. In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to China now or in the reasonably foreseeable future.
121. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence the Tribunal is not satisfied that there is a real risk that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to China now or in the reasonably foreseeable future.
122. Accordingly, the Tribunal is not satisfied that that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.
CONCLUSION
123. 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 s.36(2)(a) or s.36(2)(aa) of the Act.
124. There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.
DECISION
125. The Tribunal affirms the decision not to grant the applicant a protection visa.
David Barker
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.
…

5H   Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)    in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)    in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

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 the 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.
…

36    Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(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.
…

A review of the Western Union outlets in [Suburb], NSW indicates there are five outlets, with numerous other outlets in surrounding suburbs. The operating hours for the five Western Union outlets in [Suburb] are as follows:
7 days - 9:30 am to 8:00 pm
7 days - 8:45 am to 6:15 pm
7 days - 8:30 am to 11.59 pm
7 days – 6:00 am – 6:00 pm
6 days – Mon to Fri - 9:00 am to 5:00 pm
Sat – 9:30 am – 1:00 pm

[2019] AATA 5297

15 November 2019

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction