1700141 (Refugee)

1700141 (Refugee) [2021] AATA 2671 (30 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1700141
COUNTRY OF REFERENCE:                   China
MEMBER:David Barker
DATE:30 June 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection (Class XA) visa.

Statement made on 30 June 2021 at 3:08pm
CATCHWORDS
REFUGEE – protection visa – China – not appropriately notified of protection visa refusal 16 years ago – Falun Gong – Tiananmen protests – criminal offence in Australia – mental health – credibility – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 91R, 424A, 438(1)(a), 499
Migration Regulations 1994 (Cth), Schedule 2, cl 866.221
CASES
Applicant A v MIEA (1997) 190 CLR 225
Applicant S v MIMA (2004) 217 CLR 387
Appellant S395/2002 v MIMA (2003) 216 CLR 473
Chan Yee Kin v MIEA (1989) 169 CLR 379
Chen Shi Hai v MIMA (2000) 201 CLR 293
MIEA v Guo (1997) 191 CLR 559
MIMA v Haji Ibrahim (2000) 204 CLR 1
MIMA v Khawar (2002) 210 CLR 1
MIMA v Respondents S152/2003 (2004) 222 CLR 1
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
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 to refuse to grant the applicant a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of China, applied for the visa on 23 February 2001. The delegate refused to grant the visa on 28 May 2001. The notification and record of the refusal decision were sent to the residential address provided with the visa application, not the postal address provided to the Department by the applicant for correspondence purposes. On 14 December 2016 the Department re-notified the applicant of the decision to refuse to grant him a Protection (Class XA) visa and the applicant has applied to the Tribunal for review of that decision.
The applicant appeared before the Tribunal on 6 October 2020 by teleconference to give evidence and present arguments. The Tribunal determined it was reasonable to hold a hearing through a teleconference in the context of the coronavirus pandemic, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal was mindful of the need to minimise health risks to the parties and Tribunal staff that could arise at the present time in an in-person hearing. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by electronic means. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
At the start of the hearing the Tribunal brought to the attention of the applicant that the Departmental file contains a certificate issued under s 438(1)(a) of the Act, which if the Tribunal was to be satisfied was a valid certificate would restrict the release of documents specified in the certificate. The Tribunal told the applicant that it had reviewed the reason put forward by the Department on the certificate as to why release of the information would be contrary to the public interest, namely that it contained information relating to an internal working document and business affairs of the Department. The Tribunal is not satisfied the Department has provided an adequate reason why the document, which is a copy of a letter sent to the applicant by the Department of Immigration and Multicultural Affairs notifying him that his application for a Protection visa had been received, contains information, the release of which would be contrary to the public interest and on that basis is not satisfied the certificate issued under s 438(1)(a) of the Act is valid. The Tribunal informed the applicant of this and that the specified documents were not relevant to the issues under consideration in the review. There is a further document on the Department file with a handwritten ’17’ on the top right hand corner of the document, which pertains to the applicant ’s movement records. These records contain information entirely consistent with information provided by the applicant at hearing and in documents he provided with his visa application. The tribunal’s view that the information in documents potentially covered by the s 438(1)(a) certificate is not relevant is because they do not relate to the applicant’s credibility and beyond containing information about when he arrived in Australia and his lack of departure since, information which the applicant has provided himself, do not relate to the applicant’s protection claims.
The applicant appeared before the Tribunal, by videoconference, at a second hearing on 18 March 2021. On this occasion the Tribunal and applicant again had the assistance of an interpreter in the Mandarin and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
The applicant is a national of China and is [age] years old. He first arrived in Australia [in] January 2001, on a Subclass 676 Tourist visa, which was valid until [February] 2001. The applicant divorced his first wife after he came to Australia. There is one child, a son, from that relationship. He married for the second time, to an Australian citizen, after his arrival in Australia. The applicant has a mother and [sister] who reside in Beijing, China.
As discussed previously in this decision, the applicant applied for a Protection visa on 23 February 2001. The delegate refused to grant the visa on 28 May 2001. The applicant claims he was unaware of this decision. As the applicant wasn’t appropriately notified of the visa refusal decision, the Bridging visa he was granted on 23 February 2001, associated with the Protection visa application remained in place.
[In] February 2011 the applicant was located by NSW Police and charged to appear at [Suburb 1] Court in NSW for having in his possession a NSW driver’s licence, bankcard and other card in differing names and which were suspected of being stolen. On 18 February 2011 the applicant was granted a Bridging Visa E, valid to 15 March 2011, on the basis of him accepting conditions including that he was making arrangements to depart from Australia.
On 9 March 2011 the applicant requested Ministerial Intervention, with assessment of that request determining that the required guidelines were not met. The applicant was notified of this result by letter dated 6 April 2011. That letter also put him on notice that the Bridging visa associated with the Ministerial Intervention request would expire 15 June 2011 and that as he had no further matter before the Department, he was expected to depart Australia as soon as practicable in accordance with the conditions attached to the Bridging visa. The applicant did not then depart from Australia.
The applicant’s son married an Australian citizen and his mother subsequently joined him in Australia. They are both now Australian citizens. The applicant’s second marriage failed and he remarried his first wife around six years ago. The applicant resides with his spouse and child in [NSW] and works as [an occupation]. He describes this as a very good job that he has held for around 12 months. He said that it is similar to work he has done in Australia for around 18 years, [in another line of work]. He has provided the Tribunal with Australian Taxation Office (ATO) notice of assessments to show how the good income he earns in Australia contrasts with what he would likely earn if he returned to China.
RELEVANT LAW
Under s 65(1) a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied. The criteria for a Protection visa are set out in s 36 of the Act and Part 866 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). As a result of amendments to the Act, some of the criteria in s 36 do not apply to visa applications made before 1 October 2001. However, the criteria in cl 866.221 of the Regulations, as applicable to this application, broadly reflect the criteria for a Protection visa in s 36(2) of the Act. An applicant for the visa must meet one of the alternative criteria in cl 866.221(2), (3), (4) or (5); cl 866.221(1). That is, the applicant is either a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention), or on other ‘complementary protection’ grounds, or is a member of the same family unit as a person to whom Australia has protection obligations under either the Refugees Convention or the complementary protection grounds and that person holds a Protection visa.
Refugee criterion
Clause 866.221(2) is satisfied if the Minister is satisfied that the applicant for the visa is a person to whom Australia has protection obligations under the Refugees Convention.
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
The High Court has considered this definition in a number of cases, notably Chan Yee Kin v MIEA (1989) 169 CLR 379; Applicant A v MIEA (1997) 190 CLR 225; MIEA v Guo (1997) 191 CLR 559; Chen Shi Hai v MIMA (2000) 201 CLR 293; MIMA v Haji Ibrahim (2000) 204 CLR 1; MIMA v Khawar (2002) 210 CLR 1; MIMA v Respondents S152/2003 (2004) 222 CLR 1; Applicant S v MIMA (2004) 217 CLR 387; Appellant S395/2002 v MIMA (2003) 216 CLR 473; SZATV v MIAC (2007) 233 CLR 18; and SZFDV v MIAC (2007) 233 CLR 51.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person. These provisions were inserted on 1 October 2001 and apply to all Protection visa applications not finalised before that date.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). The expression ‘serious harm’ includes, for example, a threat to life or liberty, significant physical harassment or ill-treatment, or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant’s capacity to subsist: s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person to whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
If a person is found not to meet the refugee criterion in cl 866.221(2) he or she may nevertheless meet the criteria for the grant of a Protection visa if he or she is a person to whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: cl 866.221(4) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
The issues in this case are whether the applicant has a well-founded fear of being persecuted in China for one or more of the five reasons set out in the Refugees Convention 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.
Applicant’s claims in 2001
At hearing the applicant gave oral evidence that a migration agent assisted him in preparing his Protection visa application on the basis of information he provided. He said that he could not, however, attest to the truth or accuracy of all information included in the Protection visa application lodged on 23 February 2001, as he does not understand the English language and was unaware of what was written on the visa application form. He said that he just signed where he was told to sign. The Tribunal has nonetheless considered responses and information provided in association with the applicant’s initial Protection visa application.
In terms of responses in Part C of the Protection visa application, the applicant declared at Question 57 that all information supplied on, or with the form, was complete, correct and up to date in every detail.
At Question 36, which asked the applicant why he left China, the applicant stated ‘As Chinese government does not allow people to exercise Falun Gong. I had to leave PR China to find a good country to live freely’.
At Question 37 which asked what he feared may happen to him if he went back to China, the applicant stated ‘Chinese government has denominated Falun Gong as an evil religion. If people exercise Falun Gong he will be put into prison. I am a member of Falun Gong, I am afraid I will be put into prison if I go back to China’.
At Question 38, which asked who did the applicant think may harm or mistreat him if he returned to China, the applicant stated, ‘I think the Chinese government will do harm to me if I go back’.
At Question 39, which asked the applicant why he thought this would happen to him if he went back to China the applicant stated ‘because Chinese government strictly forbids people to exercise Falun Gong. I am a member of Falun Gong and I can’t stop exercising Falun Gong. If Chinese government know I keep on exercising Falun Gong, I will be put into prison’.
At Question 40, which asked whether he thought the authorities of China would protect him, the applicant stated, ‘Chinese government would not protect me because it is Chinese government which forbid people to exercise Falun Gong’.
In responses provided in Part B of the February 2001 Protection visa application the applicant indicated that he had no family members at that time, either in Australia, or not in Australia.
Statement provided with request for Ministerial Intervention in 2011
As discussed previously in this decision, a request for intervention from the Minister for Immigration was made in March 2011, following the incident in which the applicant was charged with having identification and bank cards in his possession which were suspected of being stolen. This was a request under s 48B which provides the Minister may allow a person to make a further application for a Protection visa if he considers it is in the public interest to do so.
The evidence of the applicant is that he is unsure why the request for Ministerial Intervention was made, or whether he was involved with the written statement associated with this request. The applicant gave evidence that has less than precise recall of involvement with the preparation of some documents, but is unsure if this was in 2011 or 2015. The Tribunal acknowledges that some years have passed since the provision of a written statement purportedly prepared by the applicant in association with a request for Ministerial Intervention. The Tribunal acknowledges this could account for some imprecision in the applicant’s recollection of his actions at that time. The Tribunal has reviewed the available Departmental records and notes there is no indication of interactions between the applicant and the Department in 2015. There are references in the Department file of the applicant being interviewed by Departmental officers on 21 February 2011, following contact the applicant had with NSW [in] Sydney. The Department file indicates that subsequent to this the applicant was granted a Bridging visa on departure grounds, which lapsed following his unsuccessful application for Ministerial Intervention. In light of the congruence of evidence provided by the applicant at hearing and that available in the Departmental records, the Tribunal is satisfied that the applicant’s reference to interviews held with Departmental officers in 2015, in fact occurred in 2011, as did interactions with NSW Police, which led to the applicant’s temporary re-engagement with the Department in 2011.

Notwithstanding the applicant’s lack of recall of the circumstances surrounding the preparation of the 2011 written statement, the Tribunal is satisfied that the extent of consistency between some of the information in the written statement and the applicant’s evidence at hearing indicates that the applicant was involved in the preparation of this document. Examples of consistency include information about the applicant’s circumstances in Australia in or around 2011 and the name of a person, [Mr A], killed during the 4 June Student Movement protests. Given it was written in English, the Tribunal finds that the 2011 written statement was prepared by a third person with active assistance from the applicant.
The Tribunal has reviewed the written statement in order to consider any potential protection claims that may be enlivened by the contents of this document, provided to the Department on 28 February 2011:[1]
[1] A copy of this written statement was provided to the applicant on 19 March 2021 for his comment and response pursuant to s 424A of the Act.
Your Excellency Minister of Department of Immigration and Citizenship:
This is from [applicant name] [age] years old now. I have been living in Australia for over 10 years. I have found my favourable job and my true love here during these years. Although there are pains and sadness in Australia I have felt, there are, more about social equal system, multi-culture, peaceful development and human right protection in Australia. I love Australia. I love my current job. I take the relationship with my girl friend very seriously. My decision to live here has never been changed.
I was a business man in China before I came to Australia. Because I am not well educated, I respect those literate persons. I was very supportive to 4 June Student Movement and became a participant in 1989. I joined in an industrial and commercial patrol team to help students with order. I contributed money voluntarily and bought water and food for the students. University students' speech made my blood tingle. I felt my country's fate and future were linked with every people. Including my friends, we were eager to join in the marches. We were young with a pure soul at that time. The incident happened in the way from the Princess's Tomb to the Military Museum changed my whole life. It was in the late afternoon, and there were hundreds of thousands of people. Suddenly people in the front of the line moved back but people in the back still moved forward. Immediately it was followed by the sound like fireworks, and the crowd became panic. People were crying, shouting and yelling. I and my friends followed the panic crowd and ran backwards. We scattered. I ran back home exhaustedly at late night. I told my family what happened to the marches. The whole family spent an uneasy and sleepless night.
On the next day I heard the bad news that my friends [Mr A] and [Mr B] were dead in that late afternoon. I felt very angry, sad and shocked at that moment. My mother and sister worried me much more. Sure enough, the local policemen and soldiers went to my home and found me after lunch on the third day. They took me to the police station, and gave me bashes and kicks. They also said sarcastically that I had nothing to do but to join in the marches as an uncultured person. They stated that I just made troubles to myself. Finally I was told that I would be questioned at any time. Since then, I had been very stressed and depressed.
I heard the news that some of my friends went abroad in the following years. I was told that it was equal and democratic in foreign countries. Though I didn't know those friends' situations very well, I made my mind to make money so I could go to a free and democratic country to live my life. I heard that my [teacher] was arrested because he practised Falungong, then was dismissed from service, and was send to a mental hospital eventually. I felt very sorry for my teacher so I stopped hiding from the practitioners, and talked to them as usual when I ran into them on the streets.
Later the government combated the Falungong organization severely. I also heard that the foreign countries express sympathy for the Falungong practitioners, just as they did in the 4 June movement. Therefore I was convinced that the policies in foreign countries are equal and fair. I took all the money I earned, with free dreams, and arrived in Australia in 2001. I heard from my mother on the phone not long after I arrived in Australia that local officials and policemen looked for me, and asked me to report my thoughts because I had said that I felt sorry for the Falungong practitioners, and besides I was a dangerous man as I had participated in the 4 June Movement. My mother cried to ask me to stay in Australia and live my life safely. She worried I would be in a big trouble if I went back. Ever since, I have made much stronger determination that I must settle down in Australia. This is not only my dream, but also the road I have to go.
Later I found a [lawyer], and told him my situation, and gave him some money. I hoped I could find an opportunity to stay here legally. Two months later, I went to the lawyer to ask him how my case was going. I was told that all the paper work about my case had been done, and all I had to do was to wait for the court session. Because I did not understand English, the date of the session was already expired when finally I found someone who was willing to read the letter for me. On the other hand, I happened to move to another place because of my new job. After a while, I went to check the lawyer, and unfortunately I was unable to find him.
Luckily my new job went on very well at that time. I have loved [this type of work] since my childhood, so I liked this [job]. My first work was in a [certain line of work]. [Details deleted].
Therefore my boss was assured that I was in charge of [the] work. Two years ago in a recession, I had done other [jobs]. Because I have been [working in this role] for many years, I would be employed right after. I had a try when I seek for a [job]. I have had over ten years of varied experience in the [business].
If I can have a legal status in Australia, I want to open a [shop]. I will work hard to provide a happy life for my girl friend. I and my girl friend are from Beijing. We have the same culture background. In our tradition, the man must take care of the woman, and support the family to make all of the members happy. Because I do not have a legal status currently, I can't guarantee my girl friend a stable and peaceful life. I feel shamed and frustrated.
I, already [age] years old, have lived in Australia for over ten years. My biggest life goal is that I can stay in Australia to spend the rest of my life with the person I love. Now Australia not only needs well-educated people but also needs hard-working professionals like me. Although I don't have a legal status here, I have been working hardly every day for over ten years, sprinkling my industrious sweet on Australian land. Your Excellency Minister, I am writing to ask for your attention to my situation and the help as much as you can give. Your help can bring me and my beloved ones a beautiful future for the rest of our lives.
The initial hearing
The applicant participated in a teleconference hearing on 6 October 2020. Evidence provided by the applicant at the hearing is discussed where relevant below.
Information put to applicant in an initial letter for their comment pursuant to s 424A of the Act
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:
·The applicant discussed at hearing that he was interviewed by the Department a number of years after he had initially applied for a Protection visa and claims that during this interview, he discussed his fear of returning to China because of a risk of retribution from a relative of a Chinese national executed for drug offences. The applicant indicated at hearing that he was unsure if the interview occurred in 2015 or 2011, but also conceded that in 2011 he was granted a Bridging visa on departure grounds, but that he did not subsequently depart from Australia.
·A review of Department records verify that the applicant was granted the aforementioned Bridging visa in February 2011 and the Tribunal is satisfied that the interview with officers of the Department occurred in 2011 rather than 2015. The Tribunal has reviewed records of an interview with officers of the Department of Immigration, which occurred on 21 February 2011. In contrast to the applicant’s claim at hearing, there is no reference to the applicant indicating that he feared to return to China because of a fear of retribution from a family member of a Chinese national executed for drug offences. Rather, the notes of the interview record that the applicant conceded that he had no evidence to support his claim that he feared that he would be persecuted if he returned to China and that no specific factor was identified by the applicant as a reason he feared he would be persecuted.
The letter explained that this information is relevant because if the Tribunal prefers the Departmental records it casts doubt on the reliability of information provided by the applicant at hearing in support of his protection claims. Specifically, it casts doubt on the reliability of the applicant’s claim that he had a fear of retribution from a family member of a Chinese national executed for drug offences in China. The letter also put to the applicant that the Department’s records indicate that rather than the applicant’s explanation that he approached NSW Police officers seeking assistance to clarify his visa status, he was located at [Suburb 1] Train Station, transported to [Suburb 1] Police Station and subsequently charged to appear at [Suburb 1] Local Court [in] March 2011 for having in his possession a NSW driver’s licence, [bank] card and [MasterCard] in different people’s names that were suspected of being stolen. The letter explained that this information is relevant because if the Tribunal prefers the Departmental records it indicates that the applicant provided at hearing a dishonest explanation for how he came to interact with officers from both the NSW Police service and Immigration Department in 2011. This raises a general concern as to whether the applicant is an honest and truthful witness whose evidence in support of his claims can be relied on.
Where relevant, the applicant’s response to the s 424A letter, received on 24 January 2021, is discussed below.
The second hearing
The applicant participated in a videoconference hearing on 18 March 2021. Where relevant, the evidence provided by the applicant at the second hearing is discussed below.
Information put to the applicant in second s 424A letter
Following the second hearing the Tribunal sent the applicant a further letter, pursuant to s 424A of the Act. The particulars of information put to the applicant in this letter, for his comment and response, was a copy of the written statement provided to the Department in 2011, associated with a request for Ministerial Intervention.
The s 424A letter explained that the inconsistency in relation to his evidence at hearing and that contained in the written statement provided to the Department in 2011 about whether he actively participated in the 4 June Student Movement is relevant, as if the Tribunal prefers his evidence at hearing, it casts doubt on the reliability of claims made in this written document, including that he was known to local officials and police to be a dangerous man due to his participation in the 4 June Student Movement, or that he had been taken to a police station where he was kicked and bashed. The s 424A letter explained that if the Tribunal considers his claims about participating in student protest activities in June 1989 were unreliable, it would also raise concern as to the reliability of other claims in the statement, such as that he maintained contact with a teacher from when he was [in] school and that he accompanied this ex-teacher to observe Falun Gong protest activity in Tiananmen Square and then talked openly to Falun Gong practitioners on the streets of Beijing because of the way the [school] teacher was mistreated by the Chinese authorities.
The s 424A letter explained to the applicant that if the Tribunal was not satisfied he had provided reliable evidence regarding these claims but it did appear the written statement contained some information consistent with the applicant’s claims at hearing, the Tribunal may conclude he did have involvement in the preparation of the written statement and that when viewed in this context the Tribunal may conclude the applicant had collaborated with a third person in exaggerating or fabricating circumstances outlined in his claims in order to support his wish to gain a visa allowing him to remain permanently in Australia. The letter explained that if the Tribunal was not satisfied reliable evidence demonstrated that the applicant faced a real chance of being persecuted, or a real risk that he will suffer significant harm if he returns to China it would affirm the decision under review.
Where relevant, the applicant’s response to the second s 424A letter, dated 6 April 2021, is discussed below.
FINDINGS AND REASONS
Nationality
On the basis of the applicant’s People’s Republic of China (PRC) passport provided to the Department, the Tribunal finds that the applicant is a citizen of the PRC. There is nothing in the evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than China. Therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection by s 36(3) of the Act. As the Tribunal has found that the applicant is a national of China, the Tribunal also finds that China is the applicant’s ‘receiving country’ for the purposes of cl 866.221(4).
Does the applicant meet the refugee criterion?
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.[2] 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.[3]
[2] MIMA v Rajalingam (1999) 93 FCR 220
[3] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547
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.[4] There is no burden upon the Tribunal to make out a case that an applicant has failed to adequately advance.[5]
Does the applicant face a real chance of serious harm if he returned to China because he was, or is a practitioner of Falun Gong?
[4] 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
[5] Sun v MIBP [2016] FCAFC 52 at 69
The Tribunal is satisfied that the basis of the applicant’s protection claims, as elucidated in his 2001 application, is that he was a Falun Gong practitioner, who was unwilling to cease his practise in Falun Gong and that his fear to return to China was based on these factors. At hearing the applicant gave evidence that the migration agent who assisted him to prepare his Protection visa application put that he was a Falun Gong practitioner without his knowledge. He gave evidence at hearing that he is not now and has at no stage, either here in Australia, or in China, been a Falun Gong practitioner. The Tribunal is satisfied that the applicant has abandoned this claim.
The Tribunal finds that based on the above, the applicant is not a Falun Gong practitioner and does not face a real chance of harm for that reason.
Does the applicant face a real chance of harm because he did or does associate with Falun Gong practitioners?
At hearing the applicant gave evidence that he told the migration agent who assisted with his Protection visa application that he was a supporter of Falun Gong practitioners and had attended their gatherings. The written statement was provided to the Department associated with a request for Ministerial Intervention, in February 2011. A number of claims are raised in this statement, including that foreign countries express sympathy for Falun Gong practitioners and that this influenced the applicant’s decision to come to Australia, as he thought it was a country where policies would be equal and fair. In the statement the applicant refers to persecution of Falun Gong practitioners and in particular a man who had taught the applicant when he was at [school]. The statement records that the applicant interacted with Falun Gong practitioners in China following the arrest of his ex-teacher. The Tribunal accepts that the applicant’s ex teacher was arrested because he practiced Falun Gong, then was dismissed from service and sent to a mental hospital arrested.
In his response to particulars of information put to him in the second s 424A letter the applicant indicated the ex-teacher referred to at hearing and in the 2011 written statement was a neighbour. At hearing the applicant claimed he and his ex-teacher observed a famous Falun Gong protest event, but took no active involvement in it. The applicant gave evidence that he and his ex-teacher just watched the demonstration from some distance. The Tribunal accepts the applicant watched the demonstration from a distance with his ex-teacher but is not satisfied this could lead to the perception that he had participated in the demonstration. The Tribunal notes that this finding is consistent with the applicant’s evidence at hearing.
There is no indication that the arrest of the applicant’s ex teacher led the police or other security agencies in China to look for or question the applicant due to any connection between him and his ex teacher prior to his departure from China. He was not questioned or detained in the lead up to his departure from China in 2001.
The written statement claims that the applicant heard from his mother that local police in Beijing were looking for him, in part because they wanted him to report his thoughts because he had said that he felt sorry for Falun Gong practitioners. The Tribunal was not persuaded the claim was credible, as the applicant has not provided a credible reason why local police would have known of his sympathy for his ex teacher. This is because the reasons provided in the statement refer to the applicant ’s internal feelings and his thoughts in response to what he had heard about conditions overseas from China. His claimed interactions with Falun Gong practitioners ‘on the streets’ involved talking them ‘as usual’. There is no contention he overtly expressed support for their practices or beliefs, or reported his internal feelings to either these practitioners or other community members. The applicant gave evidence at hearing that he decided to come to Australia after a conversation with an acquaintance who had emigrated here and told the applicant of circumstances here, including the positive business opportunities the applicant would find. The Tribunal is not satisfied the evidence demonstrates why the police would have approached the applicant’s mother in relation to wanting him to report his thoughts.

At hearing the applicant confirmed that he has had no involvement with anyone from Falun Gong since he came to Australia and also that his fear that he would face serious harm if he were to return to China is not based, in whole or part because of any past support he gave to, or interactions he had with Falun Gong practitioners. On the basis of his discussion of this factor at hearing, the Tribunal finds the applicant would not interact with Falun Gong practitioners if he were to return to China.
There is no claim before the Tribunal that the applicant was in China prior to coming to Australia, persecuted or discriminated against because of his interactions with Falun Gong practitioners. He has, at the time of this decision, had no involvement, either on an overt or covert level with Falun Gong practitioners for over 20 years. The applicant has made no claim that his relatives in China have been persecuted by the Chinese authorities or bodies associated with the Chinese Communist Party (CCP) because of any past support provided by the applicant to Falun Gong practitioners, or interactions he may have had with Falun Gong practitioners.
The applicant’s discussion of Falun Gong in the written statement provided in association with the 2011 request for Ministerial Intervention does not indicate the applicant put forward the claim his past support for, or interactions with Falun Gong practitioners, was a reason he feared to return to China. He did claim it influenced his decision to come to Australia, because he perceived Australia to be a place where policies would be equal and fair.
The Tribunal finds the applicant has not actively participated in any protest activity organised by the Falun Gong movement, either in China or Australia. The Tribunal finds the applicant has not interacted with Falun Gong practitioners, or provided them with overt, or covert support over the past 20 years, whilst he has been in Australia. The Tribunal finds that the applicant does not have an intention to participate in future protest activity organised by the Falun Gong movement. In relation to the claim that local police in Beijing were looking for him, in part because they wanted him to report his thoughts because he had said that he felt sorry for Falun Gong practitioners. The Tribunal does not accept this integer of the applicant ’s claims. The Tribunal finds the applicant was at no stage questioned by the Chinese authorities as a consequence of interactions he may have had with Falun Gong practitioners. The Tribunal finds that the applicant does not face a real chance of serious harm if he was to return to China because of any past association or interactions with practitioners of Falun Gong.
Does the applicant face a real chance of serious harm if he returned to China because of his involvement in protest activity culminating in the Tiananmen Square incident on 4 June 1989?
In the 2011 written statement provided in support of a request for Ministerial Intervention the applicant claimed that he had taken an active role in civil protests in 1989 through his support for the ‘4 June Student Movement’, which the Tribunal has taken to be protest activity culminating in the Tiananmen Square incident on 4 June 1989. In the statement it is claimed that the applicant’s involvement led to his detention and beating by local police in Beijing and that after he departed China and came to Australia his mother informed him that local officials and police were searching for him because they regarded him as a dangerous person, in part because he had participated in the ‘4 June Student Movement’. In discussion of the applicant’s circumstances in Australia, which acknowledge ‘pains and sadness’ he has felt here, there is also reference to his feelings that in Australia there is a ‘social equal system, multi-culture, peaceful development and human right protection’.[6]
[6] 2011 written statement provided in support of request for Ministerial Intervention.
The Tribunal accepts that as a resident of Beijing the applicant may have been aware of student protest activity culminating in the Tiananmen Square incident on 4 June 1989. The Tribunal accepts that the applicant may have, along with other people, provided support to students, in the form of donations of cash, water or food. The Tribunal accepts the applicant may hold the view that socio-political circumstances in his home country contrast unfavourably with those he has experienced since coming to Australia in 2001 and that Australia is a democratic country where policies would be equal and fair. The evidence before the Tribunal does not however indicate that any such a view, or political opinions have resulted in the applicant’s involvement in protest or political activity whilst he has been in Australia which could be perceived as critical of the Chinese government or CCP. On the basis of his discussion of this factor at hearing, the Tribunal finds the applicant has not openly expressed this view in a manner which would be apparent to the authorities in China and he has not conveyed an intention to do so in the reasonably foreseeable future.
As to whether the claims regarding his involvement in the 4 June Student movement, which were detailed in the 2011 written statement, in commenting on the particulars this document, which were put to him in the second s 424A letter, the applicant notes that he was ‘just a drop of water in the huge waves’. The Tribunal has taken this phrase to infer that any involvement by the applicant was insignificant and would not have stood out, as it was not specifically planned, or profound and consisted of donating money, water or food for protesting students. At hearing, the applicant gave oral evidence consistent with his s 424A response. He denied elements of what was detailed in the written statement, such as his being in an industrial and commercial patrol team to help students maintain order. In contrast to the claim detailed in the written statement that he marched with protestors, at hearing the applicant denied taking any active role in the protests, beyond making some donations and feeling sympathy, within himself, for some of their concerns. The Tribunal has preferred the oral evidence provided at hearing with regard to this factor as it was provided in a clear, non embellished, reasonable manner. The Tribunal does not accept that the applicant was arrested three days later and kicked and bashed whilst questioned at a local police station, as the statement claims this occurred as a consequence of his participating in the protest marches and the Tribunal has preferred the applicant ’s oral evidence that he did not march.
Had the applicant disputed the contention he was in any way involved in the 4 June Student Movement protests, the Tribunal would have considered whether, as it accepts was the case in relation to protection claims provided at the time of application, the claims in the 2011 written statement were fabricated by a third party without the knowledge of the applicant. However that is not what the applicant now contends, rather his s 424A response in the view of the Tribunal seeks to minimise his claimed involvement and the repercussions that flowed from it. The corollary of this is that some of the claims in the 2011 written statement were exaggerated or fabricated.
The Tribunal acknowledges people were killed in the suppression of this protest activity and accepts that it may have included a person by the name of [Mr A]. The applicant did not refer to the other person mentioned in the 2011 written statement, [Mr B], either in oral evidence at hearing or in response to the second s 424 letter. Notwithstanding this, the Tribunal accepts a person by this name may have died in or around the circumstances of the Tiananmen Square incident on 4 June 1989. The Tribunal has noted evidence regarding the death of [Mr A] is inconsistent in a significant way, in that in the 2011 written statement it is inferred [Mr A] was a friend of the applicant who was killed in the suppression of the protest march, whereas in his more recent evidence at hearing, he suggested that neighbour [Mr A], had picked up a gun from the road and was arrested and subsequently shot when he tried to return this to a local police station. The Tribunal has preferred this latter explanation for the circumstances of the death of [Mr A] and finds his death was not as a result of his participation in a protest march.
After reviewing the available evidence, including the oral evidence provided by the applicant at hearing and his s 424 responses, the Tribunal accepts the applicant: may have observed student protest activity culminating in the Tiananmen Square incident on 4 June 1989; known of people killed in this events; and provided support to students, in the form of donations of cash, water or food. The Tribunal does not accept that the applicant: took an active role in protest activity through joining an industrial and commercial patrol team to help students maintain order during the protest activity; joined protest marches, including a march from the Princess’s Tomb to the Military Museum in Beijing in which protesters were shot; or, was arrested and questioned three days after his active participation in protest marches. The Tribunal finds that these integers of the applicant’s claims are exaggerated, unreliable not consistent with oral evidence he has provided at hearing.
Based on the above, the Tribunal finds that actions taken by the applicant during and around the time of the 4 June Student movement in Beijing in 1989, do not result in there being a real chance he will face harm if he returns to China. The Tribunal is satisfied that the applicant has no intention to undertake future protest activity regarding the 4 June Student movement in the future. Further to this, the Tribunal finds that political opinions held by the applicant, which have not resulted in active participation in protest activity critical of the Chinese government or CCP in the past and show no indication that they will do so in the future, result in there being a real chance he would face harm if he returns to China.
Does the applicant face a real chance of serious harm if he returned to China because of retribution from a member of the Beijing Police service?
The applicant gave evidence at hearing that he came to Australia because of threats to his safety. He said that shortly after the birth of his son, a neighbour was with a group of other people playing mah-jongg loudly[7] at night which disturbed the applicant’s wife and child. He said that he lodged a complaint with the police about the loud music. The applicant claimed that afterwards he was threatened by the elder brother of the person who was playing mah-jongg, as when the police attended his household they discovered the person was in possession of a sufficient quantity of drugs to be convicted of drug offences and sentenced to death. The applicant claims that the elder brother of this person worked for the police and he made threats to kill the applicant and harm his family.
[7] The Tribunal initially took the claim to be that the neighbour was playing loud music, not playing mah-jongg loudly. The Tribunal has reviewed the audio recording of the initial hearing and accepts the applicant made reference to mah-jongg and not music.
The applicant gave evidence that some time after these threats were made, a friend who had emigrated to Australia, visited him whilst on a trip back to China and encouraged him to come to Australia where he would be safe and have good business opportunities. The Tribunal notes that the applicant has not claimed he was at any stage prior to his decision to depart China and come to Australia, questioned, arrested, detained or subjected to physical, emotional or psychological cruelty as a consequence of actions of the elder brother of the person who the applicant claims was executed for drug offences. The applicant said the elder brother has been promoted within the police service in China and has maintained an intention to harm the applicant if he returns to China. He said that this person is now a police inspector and government officials such as the elder brother can abuse their personal power to get revenge on a person like him.
The applicant told the Tribunal that since coming to Australia in 2001 the threats against him from the elder brother of the person executed for the drug offences have continued and that they have been communicated to him through his family members in China. The applicant gave evidence that the meaning, which should be inferred from comments from local police who have visited his mother and told her to tell him to come home and that if he did come home he will have a good life, is that this was their way of saying they would deal with him upon his return.[8] He did not elaborate on who ‘they’ were, beyond indicating it was local police, or in what way he would be ‘dealt with’.
[8] Oral evidence given at second hearing on 18 March 2021.
As to whether the persecution which the applicant fears is for one or more of the reasons enumerated in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion, the Tribunal is satisfied the latter reason is applicable to the reported fear. That is, the Tribunal is satisfied that the applicant’s reported fear that he and members of his family will be persecuted by a police officer in his country of nationality seeking revenge for personal grievances reflects his membership of a particular social group or political opinion. For this reason the Tribunal finds the applicant has a fear of persecution for a reason enumerated in the Convention definition.
The Tribunal next considered whether the applicant’s fear of persecution is, as is required by the Convention definition, a ‘well-founded’ fear. As discussed elsewhere in this decision, this requires there to be a ‘real chance’ of being persecuted for the stipulated reason. Where there is a real substantial basis for the fear, that is not to be merely assumed or based on mere speculation. For the following reasons, the Tribunal is not persuaded that the applicant’s fear that he will be persecuted because of the threats of revenge from the brother of an executed neighbour constitutes a well-founded fear.
Firstly, the Tribunal is not satisfied the applicant has provided a credible explanation as to why he did not raise this claim prior to appearing before the Tribunal in relation to this review. In forming this view the Tribunal acknowledges the initial Protection visa application was prepared by a third party and that the applicant’s contention that he was not able to review what information was put on the form due to his lack of English language skills is reasonable.[9] However the evidence of the applicant is that he discussed his protection claims with the migration agent who assisted with the application,[10] including that the basis of his fear of returning to China was the threatened revenge from the brother of the executed neighbour.[11]
[9] Oral evidence given at initial hearing on 6 October 2020.
[10] The applicant gave evidence at the initial hearing on 6 October 2020 that he told the migration agent that he was not a Falun Gong practitioner, but that he was a supporter of Falun Gong practitioners and had attended their gatherings.
[11] Oral evidence given at initial hearing on 6 October 2020.
In response to a question from the Tribunal, as to whether he had previously mentioned, in interactions with the Department, his fear of persecution on the basis of threats of retribution from the brother of the executed neighbour if he returned to China, the applicant gave evidence that he mentioned it once when interviewed by immigration officials in 2015.[12] The tribunal, pursuant to s 424A,[13] put to the applicant that there is a record of an interview with Departmental officials in 2011, associated with a Bridging visa he was at that time granted on the grounds he agreed to depart from Australia; there is no record of his interacting with Australian immigration officials in 2015. The Tribunal notes the applicant was initially unclear whether his interactions with the Department, between the time he applied for protection in 2011 and when he was re-notified of the application refusal in 2016 occurred in 2011 or 2015; he has subsequently acknowledged interacting with the Department in 2011. The request for Ministerial Intervention made by the applicant in 2011 was a request under s 48B, which provides that the Minister may allow a person to make a further application for a Protection visa if he considers it is in the public interest to do so.
[12] Oral evidence given at initial hearing on 6 October 2020.
[13] Section 424A letter dated 8 January 2021.
Pursuant to s 424A[14] it was put to the applicant that records of an interview he participated in with officers of the Department of Immigration on 21 February 2011 make no reference to the applicant indicating that he feared to return to China because of a fear of retribution from a family member of a Chinese national executed for drug offences. The s 424A letter put to the applicant that interview records recorded that the applicant conceded that he had no evidence to support his claim that he feared that he would be persecuted if he returned to China and that no specific factor was identified by the applicant as a reason he feared he would be persecuted. In response, the applicant contends that he failed to mention ‘a series of situations that happened with my neighbours before l went abroad’ because he did not understand the interaction he had with Immigration officials at the time was of particular significance. The applicant notes the applicant has conceded his earlier claim to have mentioned his fear of retribution from the brother of the executed neighbour was inaccurate. The Tribunal considers his claim to have mentioned this fear in interactions with the Department to be untruthful.
[14] By letter dated 8 January 2021.
In responding to the concern that his claim at hearing that he had mentioned during an interview with Australian Immigration officials his fear to return to China was based on threats of retribution from the brother of the executed neighbour is inconsistent with the records of that interview the applicant provided an explanation as to why he had not mentioned the fear of retribution from the brother of the executed neighbour. The illogical explanation provided by the applicant with respect to this factor, which has contradicted his evidence at hearing, causes the Tribunal to have concern about the reliability of evidence provided in support of this protection claim.
The Tribunal considers significant the record of the applicant’s Departmental interview in 2011, in which he is reported to have conceded that he had no evidence to support his claim that he feared that he would be persecuted if he returned to China and that no specific factor was identified by the applicant as a reason he feared he would be persecuted. The applicant’s response to the s 424A letter suggests he did not provide many details of his protection concerns because he did not perceive a need to do so during the interview he participated in, in 2011. The Tribunal is not persuaded by this explanation and finds the record of interview indicates the applicant was questioned about potential protection concerns and failed to make reference to any specific factor, such as a fear of retribution from a relative of a man executed for drug offences. The Tribunal is not convinced how the applicant would have perceived questions about potential protection concerns put to him by Department officers to be insignificant, or not relevant during an interview regarding the Bridging visa associated with his request to the Minster to be allowed to make a further application for a Protection visa.

Secondly, the threats attributed to the police official who is the brother of the executed neighbour involved a threat to kill the applicant, but also harm his family. The applicant claimed that the police official involved is quite famous in China and has been promoted to increasingly powerful and influential positions.[15] There is no evidence before the Tribunal which would indicate the mother and sister of the applicant have experienced any persecution or harm in the period since it is reported the threats of harm were first made by the brother of the executed neighbour. This is now a period in excess of 20 years during which the alleged source of the threats is reported to have had increasing influence and authority. The Tribunal finds that no harm has come to the applicant’s mother, sister or his first wife and their child prior to the latter parties coming to Australia. In the view of the Tribunal this factor gives weight to the view that the applicant does not face a real chance of harm due to the reported fear of retribution.
[15] Oral evidence given at second hearing on 18 March 2021.
Thirdly, the applicant in discussion at hearing of the difficulty he experienced getting his Chinese passport renewed at the Chinese Consulate in Sydney in 2014, drew a connection to alleged influence exerted from China by the brother of the executed neighbour. The applicant said this was because of the connections between different levels of the Chinese government.[16] The Tribunal explored this factor further during the second hearing, at which time the applicant gave evidence that he eventually had to use his connections to get the passport issued to him. When asked to explain what connections he had used the applicant said he did not claim that he had used connections to get the passport. He said the consular staff just eventually gave him the passport. In response to the Tribunal putting to him that his inconsistent evidence with regard to this issue raised concern as to the reliability of his evidence, the applicant said he could not remember giving evidence that he had used connections to get the passport issued to him. The Tribunal is not satisfied the applicant adequately explained the inconsistency of his evidence in relation to this issue and is satisfied it gives rise to concern as to the reliability of information provided by him in relation to his passport renewal. When asked if he could support his claim that difficulty, he had claimed to have experienced, getting the passport renewed in 2014 was due to the influence of the brother of the executed neighbour, the applicant claimed that comments from local police to his mother established the influence of the executed brother. He said that the local police encouraged his mother to tell him that if he returns to China he will have a good life and that has inferred from this that this is their way of saying they will ‘deal with him’.
[16] Oral evidence given at initial hearing on 6 October 2020.
In his response to the second s 424A letter the applicant provides the following comment:
In addition, I would like to reiterate that in the last court hearing, I was asked if I was entrusted when I applied for a new passport in 2011. At that time, I was thinking about the situation of getting a new passport in Sydney, so my answer was that I had nothing to do with it. But after I failed to have it reissued for many times, my ex-wife went to endeavour for it and then a new passport was reissued to me. But after the trial, I took out my new passport, which was reissued in 2014. So I recalled that what you asked during the trial may be about the application for a passport when I went abroad in 2001. In Chinese Mandarin, it is easy to confuse with 2001 and 2011. If the question you asked was that in the year of 2001 whether I asked for help, when I applied for a passport in 2001, my answer is Yes, I sought for help!
The Tribunal accepts the applicant asked for help in relation to applying for a passport in 2001 and that his wife was involved in the process whereby his passport was renewed in 2014. The Tribunal is not satisfied that in this response or evidence provided at hearing the applicant has provided credible evidence that any difficulty in getting his passport renewal in 2014 was due to the influence of the brother of the executed neighbour. Based on the above, the Tribunal finds that the circumstances of the applicant’s passport renewal in 2014 do not result in there being a real chance he will face harm if he returns to China.
Fourthly, in his response to the first s 424A letter the applicant poses the hypothetical question as to ‘If the unfortunate incident of ‘quarrelling with neighbours and finding drugs under threat’ did not happen how could I leave my old mother, wife, son and business, give up the happy life of my family and flee to Australia’?[17] The Tribunal considers the answer to this hypothetical question to be that the reason would be that the applicant decided it was in his interests to come to Australia. As to what factors influenced this decision, the Tribunal would not claim to have retrospective prescience over such a matter. The question for the Tribunal to consider is whether the reasons put forward by the applicant are credible and if so, whether they activate Australia’s protection obligations to the applicant.
[17] Written response to first s 424A letter, received 24 January 2021.
The Tribunal considers the applicant’s lack of knowledge of the name of the older brother of the executed neighbour, who he claims will persecute and seek revenge against him if he returns to China, reflects the vague and unsubstantiated nature of this claim. The applicant has described the elder brother of the executed drug offender as an influential hero in China who is a senior police officer in Beijing. He claims that his remaining relatives in China have continued to warn him since 2001 that he continues to be at risk from this person. In light of these claims the Tribunal has difficulty understanding how the applicant would be unaware of the name of the person he claims will seek retribution against him and does not consider a reference to the surname of this person’s sister improves the plausibility of the applicant’s claims.
The Tribunal does not accept a Police official in Beijing has threatened the applicant’s and his family’s safety on an ongoing basis since 2001, or that this person networked with other Chinese authorities, both within China and in the Chinese Consulate in Sydney, for the purpose of monitoring the applicant so as to be able to render retribution on him if he returns to China. The Tribunal does not accept that connections between a Police official in Beijing and consular officials in the Chinese Consulate in Sydney caused difficulties for the applicant when he sought to renew his Chinese passport in 2014. The Tribunal considers the renewal of the applicant’s passport in 2014 is an indicator that at that time he was not deemed as a person of concern to the Chinese authorities. The Tribunal is not satisfied that the applicant has put forward credible reasons as to why he would have drawn the adverse attention of the Chinese authorities since 2014, such that there is a real risk he would face serious harm if he returns to China from the Chinese authorities or from the elder brother of the executed neighbour.
Upon considering the applicant’s claims with regard to a fear of persecution due to threatened retribution from the brother of an executed neighbour, the Tribunal makes the following findings:
·The Tribunal does not accept the applicant lodged a complaint with the Beijing police service, on or around the date his wife returned to their home after the birth of their child, complaining about excessive noise due to a neighbour, in association with other people, playing mah-jongg loudly;
·The Tribunal does not accept that on the basis of a complaint lodged by the applicant, police attended his neighbour’s household and that their discovery of illegal drugs set in train a series of events leading to the execution of the neighbour;
·The Tribunal does not accept that a police official who was the brother of an executed neighbour has threatened the applicant or members of his family;
·The Tribunal does not accept that a police official who was the brother of an executed neighbour exerted influence through connections in the Chinese consulate in Sydney to interfere with the applicant’s efforts to renew his Chinese passport in 2014.
As the Tribunal does not accept the applicant’s claims as outlined in the preceding paragraph, the Tribunal finds that there is not a real chance he will face harm if he returns to China for these reasons.
Does the applicant face a real chance of serious harm if he returned to China because of economic factors?
At hearing, the applicant gave evidence that he would have difficulty if he were to return to China because of economic factors. He provided evidence of his income in Australia[18] and contrasted this with claimed difficulty he would face, at his age and having been absent for over 20 years, finding employment in China. He has indicated that his decision to come to Australia followed advice from an acquaintance on a return trip to China from Australia who amongst other things told him that Australia was a place where he would have good business opportunities.[19] He has referred to having no relatives in China and that his wife and son are now Australian citizens and resident in Australia.[20] He contends his wife and son would have difficulty managing finance commitments in relation to the house that has been purchased in Sydney if the applicant returned to China.
[18] ATO Notice of Assessments: Year ending 30 June 2019 – taxable income [deleted]; Year ending 30 June 2020 [deleted].
[19] Oral evidence at initial hearing 6 October 2020.
[20] Oral evidence at initial hearing 6 October 2020, applicant claimed no relatives in China; at second hearing on 8 March 2021 conceded his mother and [sister] reside in China, but claimed not to have a close relationship with sister.
The Tribunal acknowledges the unusual characteristics of this case, where the applicant was not appropriately notified of the refusal of his application for a Protection visa until some 16 years after making the application, has resulted in the applicant staying in Australia, during which he has remarried his first wife who, along with his son came to Australia on different migration pathways. The Tribunal acknowledges that the applicant has worked consistently whilst in Australia and is now in well paid, skilled employment that he finds satisfying and in conjunction with his wife and son has sought to improve their economic circumstances here by purchasing property.
The Tribunal is not persuaded difficulties in meeting finance commitments held by his wife give rise to the risk the applicant would face serious harm if he were to return to China. This is because the Tribunal is not satisfied that this would cause any hardship or issues to the applicant himself. The Tribunal has however, considered whether he would face a real chance of harm due to economic factors.
In relation to current economic circumstances in China, reports of discussion of this at the annual parliamentary session of the China’s National People’s Congress indicates that job creation was a top economic priority, and that China aims to create more than 11 million new urban jobs in 2021. Chinese Premier Li Keqiang told a press conference that China is aiming for more than 6% economic growth in 2021 and that China’s growth in 2020 was 2.3%, which was the slowest pace in over 40 years due to the coronavirus. It is reported that, China was the only major global economy to grow in 2020 and that China is aiming for more than 6% economic growth in 2021.[21] It is further reported that Li Keqiang pledged that as the economy improves later this year, government spending will further tilt towards improving living standards, including funding for education and basic medical services. It is reported that improving people’s livelihoods carries significant meaning for the Communist Party’s rule and social stability.[22]
[21]‘China’s 2021 National People’s Congress: Key takeaways’, Deutsche Welle, 11 March 2021, 20210317091510.
[22] ‘China’s leaders keep focus on job creation and better living standards as Communist Party looks to bolster position ahead of centenary celebrations’, South China Morning Post, 12 March 2021, 20210312115708.
The Tribunal invited the applicant to comment on a summary of this aforementioned country information, during the second hearing on 18 March 2021, in the context of asking him why, given the extent of his work experience and skills that he has developed, he would have difficulty finding appropriate work if he was to return to China. The country information also included that that there has been an easing of laws and policies, such as hukou registration requirements, thereby allowing easier internal movement and employment opportunities within China to areas where there is growth and a lack of security concerns.[23] In response to an opportunity to respond to this issue the applicant commented that the information sounded like it had been provided by a media outlet controlled by the Chinese government. The applicant made no further comment in relation to why there would not be employment opportunities for him in China and reiterated that he has been living in Australia for more than 20 years and that he would have difficulty adjusting back into Chinese society after living in Australia for this length of time. The Tribunal acknowledges the applicant would face an adjustment if he returned to China. He does have family in China, being his mother and [sister]. Whilst acknowledging his claim that he is not emotionally close to his sister, his evidence at hearing indicates that has maintained connection with his mother and the Tribunal is satisfied this connection would assist his readjustment to his home country. The Tribunal is not persuaded that the applicant would face a real chance of harm arising from his adjustment to life back in China.
[23] DFAT Country Information Report, People’s Republic of China dated 3 October 2019.
In relation to this reason, the Tribunal finds that the applicant has gained skills in the [a line of work] and other specialist items during over 18 years of consistent employment in Australia, culminating in a position where he now supervises the production line associated with the manufacturing process. Whilst in Australia, he has also worked in [other lines of work].[24] The Tribunal finds this skilled work is in addition to previous experience the applicant had, prior to coming to Australia in [various areas].[25] The Tribunal considers the applicant to have an extensive amount of work experience in a range of vocational arenas. The Tribunal is not satisfied that there is a real chance that the applicant would face harm for economic factors. In forming this view, the Tribunal is not persuaded why he would not seek employment on his return to China, or as to why his employment experience would not equip him to secure employment in his home country.
[24] Written statement provided in association with request for Ministerial Intervention in 2011.
[25] Oral evidence at initial hearing 6 October 2020.
As to whether the applicant would face a circumstance that would threaten his capacity to subsist due to the denial of his access to services, the Tribunal is not persuaded the evidence demonstrates why this would be the case. The applicant has claimed he is at risk of retribution from a police official in Beijing and that this person has the capacity to adversely impact him through connections this person has with other government officials. The applicant is a Chinese national. He has a current passport granted to him on the basis of the identity details. The Tribunal does not accept a police official in Beijing would seek to influence the applicant ’s access to services in a negative way. provided to the Chinese authorities. The Tribunal therefore does not accept the applicant’s access to services would be restricted for this reason. Tribunal finds that the is no real chance the applicant would face harm in China because of this reason.
Does the applicant face harm in China as a result of a mental health condition?
At hearing the applicant referred to difficulty sleeping, nightmares and thoughts as to whether it is worth living. The Tribunal has considered whether a claim arises as to whether the applicant has a mental health condition for which he may not be able to receive adequate treatment if he was to return to his home country.
In response to the Tribunal asking him about this factor, the applicant indicated he has difficulty sleeping sometimes and at other times has a nightmare that he will be forced to return to China. The Tribunal asked the applicant if he had a mental health condition, or had received treatment for a mental health condition, or whether he was just referring to the sort of nightmare or bad dream a person who does not have a mental health condition may have. The applicant referred to arguing with his wife because of his visa situation and that sometimes he even thought about what the point of living is. He provided no further indication that he had acted on any such thoughts or perceived the need to seek professional advice because of a mental health condition or ideation of concern. The applicant gave no indication at hearing that he was having any concerning ideation or emotional difficulties at the present time. The applicant said he loves living in Australia and wants to keep living here.
The Tribunal has considered the available evidence with regard to the applicant’s wellbeing and reported sleep difficulties, nightmares and ideation as to the worth of living. Whilst understanding the applicant’s concerns about his circumstances, the Tribunal is not persuaded the evidence demonstrates the applicant suffers from a mental health condition.
For the above reasons the Tribunal finds there is no real chance of the applicant facing harm if he returns to China because of treatment needs associated with a mental health condition.
Having regard to the above evidence both individually and cumulatively, the Tribunal is not satisfied that the applicant would face the real chance of serious harm and is not a person to whom Australia has protection obligations under the Refugees Convention. As a consequence cl 866.221(2) is not met.
Does Australia have complementary protection obligations towards the applicant?
If a person is found not to meet the refugee criterion in cl 866.221(2) he or she may nevertheless meet the criteria for the grant of a Protection visa if he or she is a person to whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: cl 866.221(4) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
Based on the above findings the Tribunal is not satisfied that there is a real chance the applicant will suffer persecution for a Convention reason if he returns to China now or in the foreseeable future.

As to 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 he will suffer significant harm now or in the foreseeable future.
Section 866.221(4) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
For the same reasons already discussed above, the Tribunal is not satisfied 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 now or in the foreseeable future.
CONCLUSIONS
The Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in cl 866.221(2).
Having concluded that the applicant does not meet the refugee criterion in cl 866.221(2), the Tribunal has considered the alternative criterion in cl 866.221(4). The Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under cl 866.221(4).
There is no suggestion that the applicant satisfies cl 866.221 on the basis of being a member of the same family unit as a person who satisfies cl 866.221(2) or (4) and who holds a Protection visa. Accordingly, the applicant does not satisfy the criterion in cl 866.221 for a Protection visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection (Class XA) visa.
David Barker
Member

[2021] AATA 2671

30 June 2021

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