1702157 (Refugee)

1702157 (Refugee) [2021] AATA 5265 (28 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1702157
COUNTRY OF REFERENCE:                   China
MEMBER:Frank Russo
DATE:28 November 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 November 2021 at 5:35pm
CATCHWORDS
REFUGEE – Protection visa – China – arrest, torture, persecution from authorities – political post on internet regarding corruption in local government – credibility issues – unlawful status in Australia – delay in protection application – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 25 January 2017 to refuse to grant the applicant a protection 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 27 June 2016. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant is a person in respect of whom Australia has protection obligations.
The hearing was held during the COVID-19 pandemic. On 10 March 2021, in accordance with measures introduced in response to the COVID-19 pandemic[1], the Tribunal invited the applicant in writing to attend a hearing by way of Microsoft Teams video conference on 26 March 2021.
[1] COVID-19 Special Measures Practice Direction – Migration and Refugee Division, 2 March 2021.
The Tribunal determined it was reasonable to hold a hearing by video, having regard to the individual circumstances of the applicant and the nature of the application.
The applicant appeared before the Tribunal by video on 26 March 2021 to give evidence and present arguments. The hearing was adjourned to 29 April 2021, and the applicant again attended the hearing by way of video.
The applicant’s registered migration agent also attended both hearings by video.
The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
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
(Cth) (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 review 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 he will suffer significant harm.
The applicant provided with his application for review, a copy of the decision of the delegate and notice of this decision from the Department. The applicant provided responses to the hearing invitations. On 16 March 2021, the applicant provided the Tribunal with the following documents:
a.Letter from the applicant’s father in Mandarin, together with an English translation provided by a NAATI translator; and
b.Copies of three summons issued to the applicant’s father by Qingdao Municipality Public Security Bureau (PSB), [dated] [2019], [2020] and [2021].
On 7 April 2021, the Tribunal wrote to the applicant to provide a copy of non-disclosure certificate issued by the Department of Immigration pursuant to s.438(1) of the Act on 14 February 2017, and inviting him to comment or respond to particulars of information which may be the reason, or part of the reason for the Tribunal affirming the decision under review. The applicant provided a response to this invitation on 12 April 2021, in which he attached a Commonwealth statutory declaration declared on the same day.
The Tribunal also has a copy of the Department file and has had regard to the documents on that file. The Tribunal, in reaching its decision, has taken into account all of the evidence before it. It has also taken into account independent country information about China.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity
The applicant provided a copy of his Chinese passport to the Department. On the basis of this information, and without any information to the contrary, the Tribunal accepts that the applicant is who he claims to be, that he is a national of China, which is also his receiving country.
The applicant claimed at the hearing that he did not have a right to enter and reside in any third country. On the basis of the information before the Tribunal I accept this claim and find that the applicant does not have a right to enter and reside in any third country.
Claims
Claims made with visa application
In his Protection visa application provided to the Department, the applicant provided a written statement in which he makes the following claims:
a.He was born in Qingdao City, Shandong Province in [year] and is an only child. He enrolled in [University 1] in 2007;
b.In July 2009 he started working part-time at [Business 1], run by [Mr A], who had studied in [a Western country] and was influenced by Western ideology and believed in democracy, freedom and human rights. He developed a close relationship with [Mr A];
c.He had a good friend called [Mr B], whim he studied with from primary to senior high school. [Mr B]’s family experienced financial hardship as a result of his father becoming ill around 2007, and so ran a food stall, selling [food] on the street. [Mr B] mentioned many times that he was bullied or extorted by officials of the City Urban Administrative and Law Enforcement Bureau (known as Chengguan), but he suffered silently because he needed money for living expenses and to pay for his father’s medical expenses;
d.[In] September 2010 [Mr B] was running his food stall on the street during Mid-Autumn Festival. Business was busy. The food stall was ‘suddenly confiscated’ by officials of Chengguan. The applicant claims that he was coincidentally on the spot, and witnessed [Mr B] being beaten by the officials with batons. The applicant knew the leader of the officials was [Mr C], as had told him about him many times and said he had used his powers to extort money from [Mr B]. [Mr B] was accused of obstructing officials of Chengguan from lawfully executing their duties and was sent to Shibei District Branch of Qingdao City PSB;
e.The applicant claims that as a good friend of [Mr B]’s and as a witness, he was obliged to tell the police the truth and urged them to release [Mr B]. [Mr B]’s mother was unable to do so because she was illiterate and had to look after her seriously ill husband at home. He kept in contact with the PSB for the following three days. He was informed by the police three days later that [Mr B] committed suicide at Qingdao City No.1 Detention Centre. The police told him the case was closed and no further investigations would be undertaken;
f.The applicant was upset as he believed there were too many questions in this case. He discussed the matter with [Mr A], who told the applicant they should expose the truth on the internet. He claims that ‘one night after’ [Mr A] put everything on the internet, they got into trouble. The applicant claims that on the morning of [date] September 2010 he was arrested at home. [Mr A]’s [Business 1] was sealed and [Mr A] was also arrested by the police. He claims that all information regarding [Mr B]’s case was cleaned up;
g.The applicant was interrogated by police at the PSB. He was accused of spreading rumours on the internet and seriously threatening state security. He insisted that everything le had placed on the internet about [Mr B]’s case was true, and that everyone should have the freedom to express opinions and the police should respect his basic human rights. The police regarded him as poisoned by Western ideology, and he was subjected to cruel torture and inhuman treatment during interrogation. He was beaten up, forced to eat and drink dirty things and tortured with electricity and water;
h.On the evening of [date] September 2010 he was transferred to Qingdao City No.1 Detention Centre;
i.His father had been arranging for him to study overseas since the beginning of 2010 and he obtained his passport in [month] 2010. His father was not surprised that the applicant had been arrested as a result of his association with [Mr A], and contacted a friend of his in order to rescue the applicant;
j.In the detention centre he was tortured, mistreated and humiliated by the police and other detainees. He claims that he had to do hard manual jobs for at least 9 hours per day, and was provided only a little bit of dirty food and water. He became seriously ill and his father used the opportunity to bail him out to seek medical treatment with the help of his friend. His father had to pay a bribe to police;
k.The applicant was released [in] November 2010 and had to report to the PSB every Wednesday;
l.After he weas released he was often harassed by the police. They once raided his home at midnight. He claims that it was impossible for him to have a normal life and he was always in fear;
m.He claims that his father’s friend obtained an Australian Student visa for him within ‘not a long period’. His father then arranged for him to leave China [in] November 2010 through his friend with the use of bribery. He arrived in Australia [in] November 2010;
n.He claims that [Mr C]’s uncle was [Mr D], [an official] of Shibei District Government in Qingdao City, and that [Mr D] was in charge of the Chengguan. [Mr C] would take advantage of [Mr D]’s position to bully and extort small business owners like [Mr B];
o.After he left China he learned that [Mr A] was sentenced to one year of re-education through labour, and was transferred to Qingdao Re-education through Labour Camp. He has not heard about him since, despite asking his father to make enquiries through friends;
p.He has been blacklisted by the PSB as a ‘dangerous’ person who has threatened state security. He believes if he returns to China he will be arrested by the police and tortured, mistreated and humiliated.
Departmental interview and delegate’s decision record
The applicant attended a Departmental interview on 9 January 2017. Where relevant, information provided by the applicant in the Departmental interview is referred to below.
The delegate found that the applicant was not a credible witness, and that the information he provided to explain and support his claims was vague and not plausible in some instances. The delegate provided the applicant with an additional 7 days to provide documentary support for his claims, but no further documentary evidence was provided. The delegate considered that while it was plausible that the applicant may have worked in [Business 1] during his time in China, given the limited supporting documentation available, the delegate was not satisfied that the claimed series of events had occurred in China. The delegate considered that the applicant tended to recount his written claims in the same format. The delegate also considered that he experienced some difficulty in providing detail when asked to discuss the finer details of his experience being apprehended by police, his experience in prison/detention and his stated activities after he was released from detention and before he came to Australia. The delegate considered that overall the applicant had not provided the level of detail required for them to be satisfied that the stated incidents occurred. The delegate also considered there was no information to suggest the applicant is considered a dangerous person by the Chinese government or that he is a threat to national security. The delegate also considered that there is no supporting documentation to indicate the applicant is an anti-government supporter and has been involved with anti-government activities in China.
The applicant gave testimony at the interview that in order to depart China without being detected, his father paid a bribe to a family connection employed at the airport, and that this officer escorted the applicant through an alternate passenger route throughout the airport so that he could successfully get through customs. The delegate’s decision records that the applicant provided a very detailed oral testimony explaining the procedure and various steps taken to get him cleared through the airport. The delegate had concerns as to how the applicant successfully departed China given his claims of being a threat to national security, and did not find it plausible that he would be able to bypass all levels of security with this profile.
The delegate also expressed concerns that the applicant stated he was released from prison [in] November 2020 and was then granted a visa for Australia [in] November 2010, but did not depart Australia until [later in] November 2010, and considered that this delay [raised] questions about the level of harm feared by the applicant.
The delegate also noted that the applicant first entered Australia [in] November 2010 and did not apply for protection until 27 June 2016, and considered the delay in applying for protection of five to six years as significant.
The delegate was overall not satisfied that there is a real chance of persecution for one or more of the reasons mentioned in subsection 5J(1)(a) of the Act, and therefore the applicant is not a refugee as defined in s.5H of the Act, and also found that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to China, there is a real risk the applicant will suffer significant harm as required to meet the requirements for complementary protection.
Evidence at the hearing regarding preparation and contents of the application
The applicant gave evidence that he remembered making the Protection visa application, which he stated that he made by himself and with the assistance of his representative. He confirmed that he is aware of the contents of his application form and statement and that they were read back to him. He confirmed that the contents of his application and statement are true and correct and confirmed that he did not wish to make any changes to his application form or add to the claims which he has made.
Evidence regarding the applicant’s background
The applicant gave evidence that he is a citizen of China. He gave evidence that besides Australia, he has not travelled to any other countries. He confirmed that he is not a citizen of any other country, nor does he have a right to enter and reside in any other country besides China.
The applicant gave evidence that immediately prior to arriving in Australia he lived at an address [in] Shibei District, Qingdao City, Shandong Province. He confirmed that this was his hukou and that he had lived there for about 10 years. He confirmed that his parents continue to live at this address and that he has no siblings. When asked for his previous address, he stated that he was quite little at the time and he doesn’t remember the address, but stated it was near [location], which he stated is also in Shibei District and is about [distance] away by bus. The applicant was asked whether he has ever lived at any other addresses in China that he had not already mentioned. He stated that he had stayed overnight at his grandmother’s place. He then stated that his grandmother also lived in Qingdao City, although half an hour distance by car. When asked for the name of the town or locality in which she lives, he stated that it was in ‘[deleted]’. He stated that his grandmother passed away in 2009.
He stated that his highest level of education in China was a Diploma [from] [University 1], which he completed in July 2009.
The applicant gave evidence that he had worked in China [at] [Business 1] from July 2009 until the time he was arrested. Other than this he had worked briefly as a [different occupation].
Applicant’s travel to Australia
The applicant confirmed that he arrived in Australia [in] October 2010. He departed China by plane from Liuting International Airport in Qingdao City and caught a plane to [another country], and from then travelled to Australia. He confirmed that he travelled with his own passport.

When asked why he came to Australia, the applicant stated that at the time he applied for the Student visa, his father wanted him to stop contacting a person name [deleted]. He stated that he was arrested in China and his main reason was to be free.
When asked who organised the Student visa for him, the applicant stated that his father had found someone. He stated that he signed some forms through an agent, but he didn’t know the agent. When asked where the agent was based, he stated that he was not sure, that it should be in Qingdao City, but he never met them.
The applicant stated that he was working as a labourer in construction at the time of the hearing.
Applicant’s claims for protection
The Tribunal noted that the applicant’s claims in his written statement accompanying his Protection visa application are that he worked in [Business 1] in China and posted claims about the mistreatment of a friend by authorities in the internet, and that he and the owner of [Business 1] were both arrested, and he was accused of spreading rumours on the internet and threatening state security, and that while he was in detention he was subjected to torture and inhumane treatment. His father arranged for him to come to Australia and he has been blacklisted in China as a dangerous person and a threat to state security. The applicant confirmed that this was correct and confirmed that he had no additional claims.
Applicant’s evidence regarding incidents in China and persecution
The applicant gave evidence that he started to work at [Business 1] in July 2009, and that [Business 1] was near [a location]. He stated that he found the job because he went to [these businesses] and he saw the job advert and asked about it. He stated that the [Business 1] owner was called [Mr A].
The Tribunal asked the applicant to tell it about the events which occurred to a friend of his in China. The applicant gave evidence that he had been friends with [Mr B] since childhood, and although [Mr B] should have gone to university, he couldn’t do so because his father was ill and he had to start a store to sell food, so he could pay for living expenses and his father’s medical expenses.
The applicant explained that in China there is a city management force that manages these stalls until 5:00pm, but after 5:00pm there is a local gang. A store owner in the city knows he need to pay the city management force and the local gang in order to keep the store open.
The applicant stated that [in] September 2010, during mid-Autumn Festival, his friend [Mr B] was running his business as usual. He stated that the business was quite busy because of the festival as everyone was eating out. He stated that his friend had mentioned [Mr C], one of the leaders of the city management force, a lot, and stated that he would extort money from him and other store owners. He stated that [Mr C] had a boat of [food] at his friend’s stall, but did not pay for them. [Mr C] saw that the stall was busy and believed [Mr B] had earned money that day. He stated that [Mr C] ‘nade up an excuse’ and pretended to ask [Mr B] to his birthday party, but [Mr B] understood that [Mr C] was asking him for money. [Mr B] did not pay the money that day, and so [Mr C] approached someone else to cause damage to the store and hot [Mr B]. [Mr B] wss also accused of interfering with the execution of the law and the police were called to arrest him. The applicant stated that he was present while all of this happened. He stated this was because it was very busy that day and he would usually help out [Mr B] or chat with him. He stated that at the time he saw the ‘bad guys’ with official titles and couldn’t do anything.
The applicant confirmed that the stall was still open at the time and that there were a lot of people who were just watching. He stated that the people watching didn’t dare step in as the city management force were very angry and because everyone knew this force did these things to honest people. The applicant stated that [Mr B] was arrested and taken to the Shibei District police station. The applicant confirmed that he himself was not harmed during this incident.
The applicant stated that following this he tried to make enquiries to see what had happened to [Mr B], but three days later he was moved to a detention centre. He stated that he made enquiries at the police station. He stated that he asked what [Mr B]’s charges were and when he could be released. He stated that he tried to tell the police that [Mr B] did not do anything and that he did not interfere with the execution of the law and should be released. When asked what [Mr B]’s family did during this time, he stated that his father was very ill and his mother needed to take care of him, so the applicant made the enquiries as a friend and witness. He stated that he was the one who told [Mr B]’s parents, but then stated that later on the police also informed [Mr B]’s mother.
The Tribunal questioned the applicant about the information that he published on the internet. The applicant stated that [Mr B] was alleged to have committed suicide three days after the incident, and that the whole thing was strange. He stated that he was still working at [Business 1], so he published posts on the internet to say what happened, with the intention of seeking support from the public. He stated that he made the post to ask the public or netizens to put some pressure on the city force. He stated that he believed [Mr B]’s suicide was suspicious and he suspects it was because of the torture he suffered. He stated that he also published the post to ensure that the city force was investigated and punished. He then told the Tribunal that he himself was later on placed into custody and arrested, and that he received inhumane treatment, which made him believe that [Mr B] didn’t commit suicide, but died from the torture.
When asked what website he published the post on, the applicant responded it was on the Tianya BBS website[2]. He then stated that he thinks that he published only one post. When asked what information he put in the post, he stated that he mainly described the whole story of what happened [in] September, and described how [Mr C] would extort store owners. He stated that he also said that [Mr B]’s suicide was suspicious. He said that he hoped the netizens would place some pressure on the government, the city management force and on the police for doing nothing. The applicant described the website where he posted the post as a platform similar to TikTok. He stated that he posted an article, and once he had done this, others can post comments. The applicant claimed that after just a few hours of posting this post, 400 to 500 people had viewed and commented on it.
[2] >
When questioned what happened after this, the applicant stated that he had posted this information [in] September 2010 and he was arrested at home on the morning of [date] September. He told the Tribunal that he had just finished watching TV and was about to prepare his lunch. When asked what happened when he was arrested, he stated that it was 10:00am and someone knocked on the door. He stated that only he and his father were home. He stated that there were several police officers, who showed him a police ID and a piece of paper, but before he finished reading the paper they told him he was suspected of publishing a post and spreading rumours on the internet. He stated that they handcuffed him and asked him to sign something and then led him to a police car. He state that there were three parked police cars and there was a large group of the public watching when he was taken away.
When questioned whether the police said or did anything else before he was taken away, the applicant stated that they took him to his room and checked his computer and books. He stated that they did not find anything valuable, but they took his computer away.
The applicant stated that he was initially taken to the police station in [location]. He stated that nothing happened while he was there. He stated that he was taken to a small room where no-one had any contact with him. One to two hours later he was driven to the Shibei District police station, where he had made enquiries of [Mr B]. He stated that while he was there a police officer said that he had spread rumours on the internet and endangered national security. The applicant stated that he told them what had happened and questioned why this was endangering national security. He stated that everyone should have the right to voice their opinion.
The applicant stated that he was at this police station for six to seven hours, and that of this he was questioned for one-and-a-half to two hours. When asked if he was mistreated while at this police station, he stated that the treatment was not as severe as what he received later. When asked again whether he was mistreated and whether anything happened besides being questioned, the applicant stated that although they did not hit him severely during this period, they pulled his hair and pulled him towards the table. They told him that he liked posting public posts on the internet and questioned how well he could type with his hands tied behind him. He stated that he stayed at the police station for the afternoon and did not have lunch or water. He asked if he could drink something and he was given a dirty cloth dampened in dirty water. They made him open his mouth and squeezed water into it.
The applicant stated that in the evening, at 6:00 or 7:00pm he was transferred to the No.1 detention centre, which he stated was the place where [Mr B] committed suicide. He stated that he was made to stay in a room with 10 other people and gave him a vest with a number on it.
When questioned whether anything else happened in the detention centre, the applicant stated that nothing happened that night. He stated that he was told the schedule and told to follow the rules. When questioned further, the applicant stated that the mistreatment he received in the police station was less severe than at the detention centre. The Tribunal informed the applicant of the need to not speak in vague terms and of the need to provide a convincing level of detail. The applicant then proceeded to give details of the schedule. He stated that from 6:00pm to 9:00pm was a period for detainees to listen to the news and be questioned. He stated that he was sometimes questioned during this period. He stated that they used various ways to try to force him to plead guilty to the charges of spreading rumours on the internet and endangering national security. He stated that once they took him to a room with heat pipes and handcuffed him to a pipe which was so hot that when he touched it, he screamed. The police questioned him while they did this and told him he could plead guilty to the charges.
When asked whether he received any other torture or mistreatment in the detention centre, the applicant stated that when he asked for some water, they poured a bottle of water into his mouth, but he realised there were small chopped hairs in the water. He refused to take any more water, but someone opened his mouth and forced him to drink it. He stated that he was locked in the detention centre for about one month, but the things he described happened in just one night.
When questioned further about any torture or mistreatment he had not already mentioned, the applicant stated that there was torture from both the police and the prisoners. When asked if he could be more specific, he stated that every night from 6:00pm to 9:00pm the police and prisoners would impose physical punishment on him. He stated that they shocked him with electricity and other prisoners told him to sleep on the toilet. He stated that one prisoner urinated on him on purpose. He stated that the type of torture used was quite similar and he experienced it many times. He stated that they used strong torches, which they shined into his eyes. He stated that every day he had to work for 9 hours. He stated that he worked from 7:00am to 12 noon and then from 12:30pm to 4:30-pm and that he did weeding or farm work.
The applicant stated that he was detained from [September] 2010 to [November] 2010, when he was released on the condition that he reported to the police station every Wednesday. The applicant stated that he wished to emphasise that normally he would not be released, but his father managed to find someone with connections and paid 50,000 RMB so he could be released on bail for medical treatment. The applicant stated that he had acute inflammation of the stomach and intestine. The applicant stated that he had acute gastroenteritis and needed treatment at a medical centre that was appointed by the police. He was to have some infusions and the rest of the time he had to rest and report to the police every Wednesday. He stated that it was a big clinic, but not a public hospital.
When asked if he has any records of his stay at this medical clinic or any records of his treatment, the applicant stated that he has them, but he did not bring them with him. He stated that he left them at home, so he does not know where those records are. He stated that after he was released from detention, but before he left for Australia, police officer and ‘people from society’ harassed them and ‘checked some things’.
The applicant stated that he was released from his medical stay on [date] November 2010. When asked if he required any ongoing treatment after he left hospital, the applicant stated that before he got on the plane he was on medication. He stated that after his visa to Australia was granted, he was ok to manage the medication, and that after he arrived in Australia he stopped taking the medication. He stated that he occasionally went to the clinic for a follow-up examination, otherwise the police would arrest him again.
When questioned whether anything else happened to him in China after [November] 2010, the applicant stated that apart from his regular reports to the police station, the police also conducted random searches of his home, even when he was sleeping at night. He stated that they wanted to check whether he was staying at hine and if he was faking his condition. The applicant confirmed that he did not go into hiding before he left China.
When questioned whether he was charged or ever convicted, the applicant stated that he did not reach the stage where he was officially charged. He stated that his father paid 50,000 RMB to postpone the charges and that he remained only a suspect at that time.
When asked whether anything happened to anyone else in connection with the charges, the applicant stated that the [Business 1] where he worked was sealed up and [Mr A] was arrested. He stated that he found this out from his father, who was told by the police. He stated that the police also questioned him about his relationship with [Mr A], and they also mentioned to him that the [Business 1] was sealed up.
The Tribunal questioned the applicant as to how he believes the police found out about his internet post. The applicant responded that every webpage in China is monitored by internet police, and if they discover something bad you will be arrested if it is serious. He stated that a friend of his father’s told his father that the post was found by the internet police and was deleted. The Tribunal questioned whether the applicant had himself looked for the post and found it was deleted. He stated that he tried to find the post the next day.
The Tribunal questioned the applicant as to when he applied for the Student visa to Australia. He stated that he is not quite sure of the date when it was lodged, but he remembers receiving his passport in [month] 2010. The Tribunal noted that the applicant had obtained his passport in [month] 2010 and completed his university studies in July 2010, and questioned whether he was planning an overseas trip as early as [month] 2010. The applicant stated that he wasn’t planning the trip. He stated that he obtained the passport because his father wanted him to have no further contact with [Mr A], as he had just returned from six to seven years of study in the [Western country] and is an advocate of freedom and human rights. He stated that he discussed [Mr A] with his father, who told him to stop talking about these things. His father believed these opinions and staying in contact with [Mr A] were dangerous. The Tribunal asked the applicant which university in the [the Western country] [Mr A] studied at, and what course he studied. The applicant stated that he wasn’t sure which university he studied at and that he should have been studying ‘financial management or something’. The Tribunal questioned whether someone who studied financial management would have strong opinions about human rights. The applicant stated that he had strong opinions about the economic system.
The applicant confirmed that no other incidents happened to him in China apart from those set out above. He stated that after he left China, the police went to his home and threatened his father in relation to his departure from China. He stated that they went through the home and threatened his father. The police made enquiries as to where the applicant is and asked that the applicant return and admit the crimes, for which his sentence will be reduced. He stated that every year they tell his parents to be questioned at the police station. In addition, his father is not allowed to leave Qingbao City and there is no way to change his hukou registration. He stated that the officers also told his father that being overseas is not a reason to not be afraid. They stated that they know everything the applicant does and told his father to tell him not to do any anti-government activity.
The Tribunal questioned the applicant as to why he believes he was blacklisted by the Chinese government. The applicant stated that this is not just something that he thinks and that he did not make this up. He stated that two months after he commenced studying in Australia, he made a call to his father, who told him that ‘[Uncle A]’, who was in charge of managing police records, told his father that he had been blacklisted by the police station for endangering national security. He stated that this means that once he returns to China, he will be arrested as soon as he gets off the plane, no matter which city he arrives at.
The applicant stated that he fears that if he returns to China he will be tortured again and will be forced to admit to the crimes he did not commit. If he refuses to admit to the crimes he will be tortured further and may even die. He stated if he admits the crimes he will be imprisoned and may be tortured there and die as well.
Evidence regarding departure from China
The applicant gave evidence that as he remained under investigation, he was not allowed to go abroad and would be stopped by Customs if he tried to leave. The applicant stated that he had to bribe officials, otherwise he would not have been able to leave the country. He stated that in the half-month between when his visa was granted in mid-November 2010 and when he left China, his father managed to find some connections. He stated that one of the most important people was a friend of his father’s, whose name is [Uncle A]. He stated that this is the person who manages archives and records at the police station. Through him they were able to find another contact called [Mr E], who worked [at] the airport. He stated that his father gave [Mr E] 70,000 RMB, which he used to bribe people, including a counter clerk and the security.
The applicant stated that his father took him to the airport, where they met [Mr E]. He stated that they met at the airport gate and then entered at [a certain gate]. [Mr E] told the applicant to wait at the [location] and [Mr E] and his father took his passport. The applicant stated that he waited [for] half an hour, and when [Mr E] returned he gave the applicant his passport, his boarding pass and Australian incoming passenger card. He stated that his father said a simple goodbye and told him to follow [Mr E]. [Mr E] showed him the way and told him not to be so nervous. He stated that he remembered passing many gates, and that there was no security at these gates and you needed to swipe there. [Mr E] took him to a particular counter. He stated that when he got to the front of the counter, [Mr E] told him not to be nervous and he then went to the other side of the counter and talked to the customs officer for a minute. He stated that they had a discission and from his side of the counter he could see the officer make a ‘gesture’ of stamping the passport, after which the customs officer asked him to come forward. [Mr E] told the applicant to call the customs officer ‘Uncle [B]’ and to be polite. He stated that [Mr E] then took him to the waiting area and told him not to worry and to take care of himself when he was outside. The applicant stated that nothing else happened until he boarded the plane.

The Tribunal questioned the applicant as to why he needed to go through such a process of bribing officials and going through certain channels at the airport if he had not been charged or convicted of an offence. The applicant stated this is because he believes that at the time he was still under investigation and was still a suspect. He stated that he received torture and mistreatment and there was no way out but to run. He stated that if you are a suspect and under investigation then you can’t leave the country. The Tribunal questioned why there would be such a delay in charging the applicant, if he had admitted that he had written an internet post and the police had taken down the internet post. The applicant stated that his father had bribed the police to postpone charging him.
Evidence regarding studies in Australia and delay in claiming protection
The Tribunal questioned the applicant about his enrolments in Australia while holding a Student visa. The applicant stated that he arrived in Australia to [study]. When asked whether he completed any courses, he stated no, and stated that he studied for two months only, until the end of January 2011. When asked why he ceased his studies at this point, the applicant stated it was because he knew from his father that he had been blacklisted by the Chinese government for posing a threat to national security. He then stated it was because of financial difficulty when questioned about the financial difficulty, he stated that his father faced difficulty providing him with the tuition for the courses. The Tribunal questioned why his father would run into such difficulties after only two months of commencing his first course. The applicant stated this was because prior to his departure from China, his father had to pay bribes to the police and customs officers.
The Tribunal questioned the applicant as to why there was a delay of five to six years in applying for the Protection visa. The applicant stated that the main reason is he was afraid at the time. He stated that if any Chinese nationals looked at him in the street, he was afraid they were spies. He stated that the Protection visa is also in a sense betraying your country. He stated that the police were warning his parents all the time that if he ever did anything against the government, they would threaten his parents. He stated that his father sent him letters mentioning the police and warning him that they have spies in Australia.
Non-disclosure certificate and information put to the applicant in writing under s.424A
Following the first hearing, the Tribunal wrote to the applicant on 7 April 2021 to provide a copy of a non-disclosure certificate on the Department file, issued by the Department on 14 February 2017 pursuant to s.438(1)(a) of the Act, as well as to put to the applicant the particulars of information from a document on the Department file which was the subject of the certificate.
In its letter, the Tribunal noted that it had considered the non-disclosure certificate and had formed a preliminary view that the certificate may not have been validly issued because the certificate indicates that disclosure of the information in the relevant folio (folio 74) would be contrary to the public interest because it contains information relating to an internal working document and business affairs of the Department. The Tribunal noted that these grounds have been found by courts to be an insufficient basis for the issue of a non-disclosure certificate.
The Tribunal decided to exercise its discretion under s.438(3) of the Act to disclose certain information from folio 74, which it considered may be the reason, or part of the reason for the Tribunal affirming the decision under review, and therefore used the procedure set out in s.424A of the Act to invite the applicant to comment or respond to the information. The Tribunal noted that it had not yet made up its mind about the information, and indicated that the particulars of the information are as follows:
a.Internal working document of the Department, which indicated that the applicant was linked to an agency [which] is suspected of preparing subclass 570 (ELICOS Student sector) visas for work purposes and creating counterfeit documents.
In response to the invitation, the applicant provided a statutory declaration dated 12 April 2021 in which he declares that he understands that the information may raise some concerns about his credibility, but he emphasises that he has never provided counterfeit documents to the Department, and has never provided false or misleading information, and that the documents he has provided to the Tribunal with his application for review are true and genuine. He states that his Student visa was prepared and organised by his father’s friend, and that neither he nor his father know details about how his father’s friend obtained the Student visa for him, nor do they know the details of the documents which his father’s friend prepared for the Student visa.
At the second hearing, held on 29 April 2021, the Tribunal noted the applicant’s response to the s.424A invitation and asked the applicant whether he wished to provide any further comment or response at the hearing. The applicant confirmed that he did not wish to comment further. The applicant’s agent also indicated that he did not wish to provide any oral submissions in relation to the matter.
The Tribunal finds that the non-disclosure certificate is invalid and of no effect because the fact that the folio contains information relating to an internal working document and business affairs is not a reason that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the information should not be disclosed. In MZAFZ v MIBP,[3] the Federal Court held that the Tribunal had erred in treating a non-disclosure certificate as valid where the only reasons cited in the certificate as contrary to the public interest were ‘internal working documents’. This was held never to have been a sufficient basis for public interest immunity whether at common law or under statute and did not identify the harm that could be done to an agency by their disclosure.
[3] MZAFZ v MIBP [2016] FCA 1081 (Beach J, 7 September 2016).
The Tribunal has also considered the information contained in folio 74 and gives the information no weight. The Tribunal notes that the information indicates that the applicant has been linked to an agency which is ‘suspected’ of preparing Student visas for work purposes and creating counterfeit documents, however no further information or details of any investigations by the Department are provided within the Department file. The Department has not provided examples of any documents which it considers may be counterfeit, and the Tribunal has not had obtained access to the applicant’s Student visa application file and has therefore not had access to such documents. While the information contained in this file may be of some value to the Department in alerting it to consider making further enquiries of documents submitted by the applicant with his previous visa application, no results of any such enquiries have been provided, and the Tribunal considers the information to be of no probative value in assessing the applicant’s current claims. The Tribunal has therefore given this information no weight and does not rely upon it in making its decision.
Country information
At the hearing the Tribunal discussed with the applicant relevant information from the most recent DFAT Country Information Report for China[4] in particular information regarding political opinion, including specific information regarding internet freedom, as well as information regarding arbitrary arrest and detention:
[4] DFAT Country Information Report People’s Republic of China 3 October 2019.
POLITICAL OPINION (ACTUAL OR IMPUTED)
3.119           Article 35 of China’s Constitution states that citizens of the People’s Republic of China enjoy freedom of speech, the press, assembly, association, procession and demonstration. China’s 2018 White Paper on Progress in Human Rights over 40 years, also states ‘the system of multi-party cooperation and political consultation…gives expression to people's democracy...It guarantees that all social strata, people's organizations and patriots from various quarters can express their opinions and play a role in the country's political and social life.’ China’s National Human Rights Action Plan 2016-2020 also outlines the Government’s plans to advance the right to expression ‘giving more space to public opinion, […] improving the check and supervision system for the operation of power, and protecting in accordance with the law the citizens’ rights of free expression and democratic supervision’.
…
3.121              The CCP has little tolerance for public dissent on a wide-range of matters considered politically sensitive, including social stability, the legitimacy of central authorities and one-Party rule, and other topics that authorities consider might aggravate social unrest. Examples of issues which authorities deem sensitive include, but are not limited to, commentary on serious economic, health and environmental concerns, financial risks, land and property issues, ethnic and religious unrest, labour disputes and official responses to natural or anthropogenic disasters. The Party and government may, in limited circumstances, tolerate commentary on corrupt local officials, particularly those already under investigation (see Corruption). What the authorities deem sensitive can change with no warning.
3.122              Pre-emptive detention of activists and rights defenders is common around sensitive political anniversaries and other high profile political or ‘sensitive’ events (see Arbitrary Arrest and Detention). Those publicly advocating greater human or civil rights, including the ‘709 Lawyers’ (see Human Rights Defenders (including Lawyers)) have also been detained and charged under public order offenses or accused of state subversion. Duihua’s Political Prisoners Database, which records information about political and religious prisoners incarcerated in China since 1980, contained 40,053 entries as of April 2019.
…
3.124              Political prisoners can legally be deprived of political rights (freedom of speech, assembly, association, procession, demonstration, vote and holding a position in a state organ) after completing a prison term. In many cases, individuals have been placed under house arrest for extended periods of time after official release from prison (see Arbitrary Arrest and Detention). Those deprived of political rights can face difficulties finding employment, renting property, travelling freely, and accessing social services. Such penalties can also now be formalised under the social credit system (see The Social Credit System). Prisoners and their families have reported harassment or intimidation, including police surveillance, telephone wiretaps, and property and body searches.
3.125              Families of dissidents, including children, have also been subject to movement restrictions, exit bans and other forms of harassment by Chinese authorities. The teenage son of a ‘709’ lawyer was placed under effective house arrest from 2015 until late 2017 (see Enforced or Involuntary Disappearances). Children of other ‘709’ lawyers have been denied entry to primary school and pre-school, and the spouses of some detained lawyers have reported being evicted from their apartments. Chinese authorities have also reportedly harassed family members in China of overseas dissidents … Other high profile critics of the Chinese government’s human rights record have also reported harassment of their China-based families and some have publicly severed ties with their families in order to protect them from further harassment. DFAT is aware of claims that authorities have confiscated ID cards or hukou (see Hukou (household registration) system) of families of dissidents, limiting their ability to access medical care, education and social services.
The latest report contains the following specific information on internet freedom:
Internet Freedom
3.149   China has the world’s largest internet-using population, with 772 million users. Over 95 per cent of the online population is able to access the internet via a smartphone. However, while the rise of the internet has created a non-traditional space for the expression of political opinion in China, authorities have developed and applied increasingly sophisticated methods to limit online expressions of dissent. The Freedom House ‘Freedom on the Net’ 2018 report rated China as the most restrictive country in the world in terms of internet access for the fourth consecutive year in a row.
3.150   China’s security apparatus invests heavily in monitoring and controlling the internet. The Cyberspace Administration of China monitors all use of approved networks and many foreign websites (including Facebook, Twitter, Google and many foreign media sites) are blocked. Censorship tightened significantly prior to the 19th Communist Party Congress in October 2017 and the March 2018 annual meetings of the national legislature and its main advisory body, during which the constitutional changes to end presidential term limits were announced (see Political System).
3.151   Internet freedom declined in 2018 due to the introduction of the Cybersecurity Law (2017) in June 2017. The Cyber Security Law strengthened repressive restrictions on online activities, placed onerous financial burdens on technology companies, independent media, and bloggers, and increased censorship requirements. Data localisation is now mandated, and real-name registration is required for internet companies, which are also now obliged to assist security agencies with investigations.
3.152   The Chinese Government has required real name registration for email and internet users since 2015. All users of Chinese social media accounts must register with their real names, and all comments posted on websites or social media must carry real name identifiers, in order to ‘safeguard national security and the public interest’. New regulations requiring online publishers to register for permits led to dozens of social media accounts that published celebrity gossip or other entertainment news closing down, signalling an expansion of censorship to a news sector that had been considered relatively free. Sources report that the government is able to delete individual WeChat accounts and chats. New regulations also make the ‘creator’ of a group chat responsible for its content.
…
3.154. The government reportedly employs up to two million people to police the internet and post pro-government comments, and encourages netizens both to post positive comments and to report negative ones. WeChat and Weibo (Chinese social media platforms) accounts of offshore users are also censored, although, to a lesser extent than China-based accounts. Censors are quick to block trending words designed to circumvent controls, and satire directed at CCP leaders. In 2018, the #MeToo campaign against sexual assault and harassment gained traction in China and, while Chinese students spoke out about their experiences, the social media movement was heavily censored. ‘Neihan Duanzi,’ a ‘buzz-feed’ style parent app of joke sharing app ‘Tou tiao,’ was also shut down by censors in 2018, for ‘hosting vulgar jokes and videos’ after it received a large following online. The head of Neihan Duanzi was forced to make a public apology.
3.155   Other examples of prohibited subjects include the death of Nobel Laureate Liu Xiaobo (see Deaths in Custody) references to the 1989 suppression of protests in Tiananmen Square in Beijing, and any references to the 2015 crackdown on human rights lawyers (‘709’ incident – see Human Rights Defenders (including Lawyers)). Censored posts have been used in court as evidence of public order and subversion offences (see Ethnic Uighurs).
3.156   In September 2013, a court judgement ruled that an author of an internet post could face up to three years in prison if their post was reposted more than 500 times, read more than 5,000 times, led to mass protests, instigated ethnic or religious clashes, damaged the country’s image or caused ‘a bad international effect’. Since then, authorities have detained and tried popular bloggers, particularly where they have drawn attention to abuses of power, including at a local level. In some cases, bloggers have spent up to two years in detention (see Arbitrary Arrest and Detention).
…
3.158. Censorship of the internet in China is extensive. People who post online comments criticising the CCP, CCP policy or discussing issues deemed sensitive by the CCP currently face censorship and can suffer reductions in their social credit (although application of the SCS can vary substantially across China) (see The Social Credit System). DFAT assesses that people who repeatedly post unapproved material are at high risk of attracting adverse treatment by authorities, including possible criminal charges or threat of charges.
The Tribunal put to the applicant that the above country information might lead it to infer that internet censorship is wide in China, particular if the information is deemed to be about a sensitive subject or is critical of the Communist Party, however it may not support his claim that the morning after he and a friend posted information about local corruption on a general website they were both arrested.
The applicant indicated that he wished to respond to the information. He stated that he wished to emphasise that while the Chinese Constitution allows freedom of speech and religious belief, but this is not true and only a superficial expression is allowed. He referred to issues in the Xinjiang Uyghur Autonomous Region. He stated that internet censorship has been getting tougher every day and if he is sent back to China he will be in a very dangerous place. He stated that his family are still in China, and he is concerned the government will do something harmful to them. He stated that he has tertiary education and has an independent way of thinking, but in China you don’t have that kind of right to express yourself.
The Tribunal questioned the applicant as to whether he had been expressing his political views since arriving in Australia. He confirmed that he had not, and stated that he is afraid of doing so because his family is still in China.
The applicant stated that after he posted his ‘blog’, about two hours later there were already 400 to 500 comments. He stated that it attracted a lot of attention, and because there were so many comments, it was posted at the top of the website. He stated that this kind of development is quite amazing. He stated that his ‘blog’ was about the vice-leader of the local government, and he noted that his friend [Mr B] is dead and his friend [Mr A] disappeared, and he also believes is dead.
The Tribunal put the following information from the latest DFAT report to the applicant regarding arbitrary arrest and detention:
Arbitrary Arrest and Detention
4.21 Under the Criminal Procedure Law, the term ‘arrest’ refers to the stage of the criminal prosecution process when authorities determine there is sufficient evidence to proceed with prosecution. A suspect can be, though is not necessarily, detained prior to being formally arrested. A detention warrant must be issued to a suspect’s family within 24 hours of their detention. The formal arrest of a detainee must be approved by the Procuratorate, which can take up to 37 days. Unless released on bail, criminal suspects will generally remain detained until the conclusion of the judicial process, including appeals. In practice, the rate of release on bail is extremely low. Bail is not considered a right; under the Criminal Procedure law bail ‘is not an individual right designed to minimize restraints on freedom, but an alternative pre-trial coercive measure. When bail is granted, it is usually on the initiative and for the convenience of the police.’
…
4.23 Amendments to the Criminal Procedure Law (1979; amended 2012, 2018) require the prompt delivery of suspects to detention facilities following arrest. The law stipulates that interrogations must take place in the detention facility, and must be recorded in audio and video. The revised law also requires judicial officials to investigate cases of extraction of confessions under torture.

The applicant responded that the laws and regulations referred to do not reflect the actual situation in China. He stated that the laws in China only apply to people like him, who have no power. He stated that in a corrupt system like this, the police do not need to present you with any documents before they arrest you. He stated that he was unable to leave detention without being granted bail. He stated that in his case, his father paid a lot of money so he could be bailed out to see a doctor, and that he had acute gastrointestinal issues. He state that his case is still pending and continues to be unfinalized, and that the police continually harass his family. He stated that the letters his father has sent him also mention these circumstances and he is very concerned and worried about his parents, but they are even more concerned about him.
Other information put to the applicant under s.424A and other concerns raised with the applicant
The Tribunal used the procedure contained in s.424A of the Act to put to the applicant the particulars of information from the audio recording of the interview held by the Department in 9 January 2017. In particular, the Tribunal put to the applicant that at that interview, he told the Department that his parents were harassed by authorities after he left China. As part of this he stated that his computer was taken shortly after he left China.
The Tribunal noted that this information may be inconsistent with the evidence he had provided at the hearing, where he stated that on the day he was arrested by police, they took his computer away. The applicant confirmed that he understood the relevance of this information and the consequences of the Tribunal relying upon it. The applicant indicated that he wished to respond to the information at the hearing. He stated that the case has involved many things and six to seven years had passed from the time he left China to when he was interviewed by the Department. He stated that he didn’t know whether he could trust the Department or protection, because if any things were leaked, his family in China could be in great danger. He stated that he has tried to do his best in terms of remembering exact times and dates, but his memory is a little confused and he described his mood as ‘a bit terrified’. He stated that this may affect his expression.
The Tribunal questioned whether there was any reason why he would have told the Department that his computer was not taken until after he left China. The applicant stated that it may be because of the confusion in his memory. He stated that he has experienced a lot of trauma and that the events occurred 10 to 11 years ago. He stated that while he remembered key dates, he may not remember things like exactly when his computer was taken.
The Tribunal put to the applicant that his claim was that he was detained because of an internet post and raised concern as to why he would have given testimony to the Department that his computer was taken only after he left China. The Tribunal put to the applicant that under such circumstances it was likely that the contents of his computer would have been of interest to authorities at the time he was detained. The applicant responded that he was terrified and the events were a long time ago and his memory could be a little confused.
After the applicant gave his evidence, the Tribunal raised a number of other potential concerns with the applicant regarding his evidence and claims and gave him an opportunity as a matter of procedural fairness to respond to each. These concerns, together with the applicant’s responses, are set out below in the ‘Assessment of claims’ section of these reasons.
Assessment of claims
In determining whether an applicant is entitled to protection in Australia, the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. 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 him or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for her or him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (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 70.)
In addition, 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 established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
The Tribunal has carefully considered the claims made by the applicant. The Tribunal has several concerns with the applicant’s evidence, which are set out below, and overall finds that it is not satisfied that the applicant has provided a true account of his circumstances in China, and finds that the applicant is not a credible or reliable witness.
The Tribunal did not consider aspects of the applicant’s evidence and claims to be credible and finds certain aspects are not supported by the relevant country information. For instance, while the Tribunal is prepared to accept that the applicant worked in [Business 1] at some stage while in China, or that he otherwise regularly visited [these businesses], and also is prepared to accept that the applicant had a friend called [Mr B], who ran a food van and was targeted by local authorities or gangs for extortion and bribes, the Tribunal is not convinced that the applicant posted a post, story or ‘blog’ about such harassment on the Tian Ya BBS website, or that the post was taken down by authorities by the next morning and the applicant was arrested the next morning and was accused of being a threat to national security as a result of such a post.
Firstly, the Tribunal notes that much of the applicant’s evidence was delivered in a manner which appeared to be reliant upon the information contained in the statement attached to his Protection visa application and the applicant has difficulties expanding on certain aspects of this evidence when asked by the Tribunal. While the applicant appeared able to recount the information contained in his written statement, it has concerns that much of the evidence was provided in the same format and appeared to have been rehearsed. For instance, when asked about the events that occurred to his friend in China, the applicant recounted that [Mr B] was his friend since childhood, that he should have gone to university like the applicant, but couldn’t do so because his father was very ill, and that he had to open a food stall to pay for his living expenses and the medical expenses of his father, all of which are details contained within paragraph 5 of the statement the applicant provided with his visa application. The applicant then stated that it was [September] 2010 and during the mid-Autumn Festival, and that things were busy, which are details contained at paragraph 6 of his statement. After recounting how [Mr C] extorted money from the applicant, and how [Mr B] was assaulted by people acting on behalf of [Mr C] and was then arrested, he stated that [Mr B]’s father was ‘badly ill’ and his mother needed to take care of him, so as a ‘friend and witness’ it was he who made the enquiries of the police, and it was he who informed [Mr B]’s mother of the outcomes. He stated that he tried to tell the police that [Mr B] had not done anything wrong and to release him as soon as possible. These details are also contained in paragraph 6 of the applicant’s written statement with a similar level of detail, where the applicant states:
His mother was illiterate, and she had to look after [Mr B]’s father who was seriously ill at home. As a good friend of [Mr B], and particularly as a witness, I thought I was obligated to tell the truth to the police and urged them to release [Mr B] as earlier (sic) as possible.
Secondly, I have concerns about the applicant’s accounts of the torture and mistreatment which he received at the police station and then at the detention centre. In his written statement, the applicant states that he was subjected to ‘cruel and inhuman treatment’ by the police during interrogation at the police station. He claims that he was beaten up, forced to eat or drink ‘dirties’ and mistreated with electricity ‘or’ water. The applicant gives only a very vague description in his written statement of the mistreatment which he received in the detention centre. He claims that he was ‘tortured, mistreated and humiliated by the police or other criminal suspects’. He claims that he had to do hard manual jobs at least 9 hours a day. The Tribunal finds these written descriptions to be vague and lacking convincing detail, and the applicant provided different details in his written statement as to where he was subjected to mistreatment with electricity and water. At the hearing, when questioned about the mistreatment he received at the police station, the applicant gave a vague response, stating that the treatment he received was not as severe as that which he later received at the detention centre. When asked to be more specific, he stated that the mistreatment included pulling his hair and pulling him towards the table, and giving him a dirty cloth soaked in dirty water to drink, which was squeezed into his mouth. He stated that the police did not hit him severely. The applicant did not mention being mistreated with electricity.
When asked to provide the details of mistreatment in detention, the applicant again at first provided only vague and general responses. He stated that nothing happened the first night he was placed in detention. When asked if anything happened after this during his stay, he sated that the mistreatment he received in the police station was less severe. After the Tribunal explained the need for the applicant to provide a convincing level of detail in his evidence, the applicant stated that he was interrogated and different means were used to try to force him to sign a statement. He stated that he was handcuffed to a hot pipe. He later stated that he was given water from a bottle which contained chopped up hairs. He then stated that he was shocked with electricity and told by prisoners to sleep on the toilet. The applicant then resorted to further general statements about mistreatment, stating that similar tortures were used and that he experienced them many times. He then stated that torches were shone into his eyes. He then recounted how he had to work each day.
The Tribunal finds that the applicant has not provided a convincing account of his mistreatment in the detention centre. The applicant attempted to avoid providing a detailed description by making general and vague statements, and only after pressed did he provide further details, which again did not provide a convincing level of detail. The Tribunal notes that a similar concern was raised by the delegate, who noted that at the interview the applicant experienced some difficulties in providing a level of detail when asked to discuss the finer details of his experiences in being apprehended by police and his experience in detention.

100. The Tribunal also considers the inconsistent accounts provided by the applicant as to when his computer was taken is of some concern. At the hearing the applicant stated that his computer was taken by the police when he was arrested, however at the interview with the Department, he stated that his computer was taken shortly after he left China. While the Tribunal accepts that the applicant is likely to have been nervous at the Department interview, and may have been concerned about his future, and that several years had passed since the events occurred, it does not consider the applicant has provided a reasonable explanation for these different accounts. The Tribunal notes that this testimony from the interview was not recorded in the delegate’s decision, and therefore the applicant is more likely to have forgotten what he told the Department officer.
101. The Tribunal also finds that the applicant’s claims of his experience in detention are not supported by the country information, including information on the detention process, which indicates that pre-trial detention is highly controlled and that there are no opportunities to work to reduce sentences. The country information indicates that detainees are not permitted to leave cells except to meet with investigating and Procuratorate officials, lawyers and consular officials, and that there is no opportunity to exercise. While the country information provides some limited support for the applicant’s description of his time in detention, including that the medical services, food and water provided are sub-optimal and that bright, fluorescent lights are generally switched on 24 hours a day and that up to 24 detainees can be held in each cell, and that there are reports of violence from other prisoners and of mistreatment in detention centres, the Tribunal finds the applicant’s claims regarding being required to work 9 hours a day are not supported by the country evidence and raise further concerns about the credibility of his claims. Given the other concerns raised in relation to the applicant’s account, the Tribunal prefers to accept the information contained in the DFAT country information report.
102. The Tribunal also considers the applicant’s account of his release from the detention centre on medical grounds after his father bribed the police to be unconvincing and aspects of it are unsupported by the country information, which indicates that unless released on bail, criminal suspects will generally remain detained until the conclusion of the judicial process, and that in practice the rate of release on bail is extremely low.[5] Bail is not considered a right in China, and that when it is granted, it is usually on the initiative and for the convenience of the police. The latest country information report also notes that while detention centres will generally have on-site doctors, they have limited options for treating medical problems.[6] Article 214 of the Criminal Procedure Law of the People’s Republic of China (as amended in 1996) states that individuals serving their sentence outside of prison, including those on parole for medical reasons, shall be under the “strict control and supervision” by the “executing organ” and “local grassroot organisations”.[7] The Tribunal found the applicant’s evidence of his release and his subsequent medical treatment to be vague and there is little evidence that he was subject to strict control and supervision as required under the Criminal Procedure Law. The applicant gave evidence that the only condition placed on him was that he report to the police every Wednesday. He claims that the police harassed him, including by conducting random searches of his home while he was sleeping at night. It is unclear why the police would have conducted such random searches of the applicant if his father had managed to bribe the police to release him on medical grounds. The Tribunal also found the applicant’s evidence of the medical treatment he sought to be vague and evasive. The applicant stated that he attended a large clinic and that he had some infusions, but otherwise had to rest at home. He claimed that he has medical records, but does not know where they are. He gave a vague and unconvincing explanation of ‘medication’ that he continued to take prior to coming to Australia and claimed that he was able to stop taking it after he arrived in Australia.
[5] DFAT Country Information Report People’s Republic of China 3 October 2019, para 4.21.
[6] DFAT Country Information Report People’s Republic of China 3 October 2019, para 5.27.
[7] Criminal Procedure Law of the People’s Republic of China (Adopted 1 July 1979 and Amended 17 March 1996), United Nations High Commission for Refuges website
103. In addition, the Tribunal found the applicant’s evidence regarding the posting of the post on the Tianya BBS website to be unconvincing, including his claim that this resulted in his arrest the morning after posting it. The Tribunal notes that the latest DFAT country information report indicates that internet freedom is restricted in China, and has declined further since 2017. The latest report indicates that the Chinese government now employs up to two million people to police the internet and post pro-government comments. It indicates that in 2013 a court ruled that the author of an internet post could face up to three years in prison if their post was reposted more than 500 times and read more than 5,000 times and led to mass protests, instigated ethnic or religious clashes or damaged the country’s reputation. It indicates that since then authorities have detained and tried popular bloggers, particularly where they have drawn attention to abuses of power. The report notes that censorship of the internet is extensive and people who post online comments criticising the Communist Party or Communist Party policy or discussing issues deemed sensitive by the Communist Party currently face censorship and can suffer reductions in their social credit. It indicates that the Communist Party and the government may, in limited circumstances, tolerate commentary in corrupt local officials, particularly those already under investigation. It states that DFAT assesses that people who repeatedly post unapproved material are at a high risk of attracting adverse treatment by authorities, including possible criminal charges or threat of charges.
104. The Tribunal does not find credible the applicant’s claim that making one post on the popular Tianya website could lead to him developing a profile as a security threat or being placed on a government blacklist. The Tribunal has sought further information about the Tianya website, which is a public forum for posting information and blog posts. Academic Ya-Wen Lei notes that the Tianya Forum ‘was the most popular, influential, and relatively diverse online discussion forum in China between 2008 and 2010.’[8] She notes that the forum was established in 1999 and was owned and operated by the HainanTianya Community Network Technology Company, and by 2010 had more than 32 million registered users. Lei also notes that participants on the forum were more diverse in terms of their political orientation compared to other forums, and in 2009 Tianya was identified by the Chinese government as one of the major forums for the development of grassroots public opinion. She refers to research which indicates that between 2008 and 2010 the forum was the core online communication network regarding public opinion incidents. Ya-Wen Lei states that given the level of influence which Tianya exerted, the forum unsurprisingly attracted the attention of the Chinese state. She states that both central and local party-state agencies monitored discussion in Tianya regularly ‘to acquire information about public concerns’.[9] She also states that:

[8] Lei, Ya-Wen. The Contentious Public Sphere: Law, Media, and Authoritarian Rule in China, Princeton: Princeton University Press, 2017.
[9] Ibid, pg 146.
… the government demanded that Tianya be responsible for censoring online discussion. Tianya hired full-time editors and part-time moderators to do this, but desiring to maximize profits, the forum also sought to create an environment for lively discussion that would attract and retain users and minimize the negative impact of censorship on users’ participation.[10]
[10] Ibid, pg.146.

105. MacKinnon, an academic based at the University of Hong Kong writes confirms that blog service providers (BSPs) as early as 2006 began to censor blogs written by Chinese users[11]:
[11] MacKinnon, Rebecca. “China’s Censorship 2.0: How Companies Censor Bloggers”. First Monday, vol. 14, no.2, January 2009.
By 2006, concerned about the role played by blogs, chatrooms and forums in the 2005 anti-Japanese street protests, authorities had created a system of regulations and obligatory “self discipline” pledges in hopes of compelling Web companies to keep user-generated content from going beyond certain limits.[12]
[12] Ibid.

106. MacKinnon states about the situation in China in 2008:
All companies running Web sites in China—portals, search engines, social networking services, chatrooms, forums, blogs, video- or photo-sharing Web sites, etc.—are now required to comply with government censorship demands in order to keep their business licences (Reporters Without Borders, 2007). Politically sensitive content is deleted from the Web by company employees, or by computer programs written by company employees, either in response to official directives or often simply in anticipation of trouble …[13]
[13] Ibid.

107. MacKinnon provides details of research she conducted from February 2008 to September 2008 on censorship by 15 commercial BSPs, including Tianya, where potentially sensitive material was posted on each site using anonymous accounts, including politically critical material.[14] She found that relatively low levels of censorship were adopted with respect to articles about corruption, with the highest rates of censorship being for politically sensitive material, such as Falun Gong and Tibetan independence, although even this material was not uniformly censored. MacKinnon notes that a range of censorship methods were used by BSPs, including posts being successfully published at first, but then deleted or ‘unpublished’ some time later, usually within approximately 24 hours.[15] Her research indicates that this method was used by 10 out of the 15 BSPs selected, including by Tianya. MacKinnon indicates that industry sources have confirmed that in these cases the content is flagged by the internal software due to the presence of keywords, and it is then reviewed by someone who decides whether to remove the post.
[14] Ibid.
[15] Ibid.
108. The Tribunal does not find that the applicant had a profile as a blogger or a political activist and does not accept his claim that he was arrested on the basis of one blog post in 2010 to the Tianya website, which attracted only 400 to 500 comments. The Tribunal finds that if the applicant did in fact post a blog post in 2010 which was removed within 24 hours, based on the above country information, the post was most likely censored or removed by the website’s moderators, rather than by local authorities. The applicant claimed at the hearing that the comments and attention his post attracted were extremely high, and the population of Shibei District is 1.1 Million, so his description could lead to chaos. The Tribunal does not however accept on the country evidence that in 2010 the local police station in Qingdao had the ability to censor a national website such as Tianya within less than 24 hours, and notes that the central government at the time expected websites to initially undertake a degree of self-censorship.
109. While the applicant gave a very detailed explanation of how he was able to escape China with the assistance of [Mr E] and bribes paid by his father to border officials, the Tribunal finds that the account he gave mirrored the detailed account he gave at the Departmental interview, suggesting that the details had been rehearsed. The Tribunal also does not find the applicant’s account of his ability to bribe officials at all levels of the airport to be convincing or supported by the Country information. The Tribunal did not find his convincing his claim that [a person] who worked at the airport was able to obtain the applicant’s boarding pass from an airline, take the applicant through a security gate and then also usher him to a Customs official whom he was talking to without attracting the attention of others at a busy international airport.[16]
[16] in 2018, Qingdao Liuting was the 15^th busiest airport in China, with 24.53 million passengers.
110. According to the most recent DFAT Report (3 October 2019), security monitoring capabilities at China’s major airports are comprehensive, and departing passengers pass through several identity checks, including passport and ticket/boarding pass inspection, run by different agencies between arriving at the airport and boarding a flight.[17] According to this report, the Chinese government maintains an immigration exit control list. The report indicates that an ordinary citizen would find it difficult to bribe border protection agents because of sensitivities to corruption, and the professional and comparatively well paid status of public security officers.[18]
[17] DFAT Country Information Report People’s Republic of China, 3 October 2019, paras 5.40-5.41.
[18] DFAT Country Information Report People’s Republic of China, 3 October 2019, para 5.61.
111. A similar state of affairs is recorded in the earlier DFAT country information reports, issued on 21 December 2017[19] and 3 March 2015[20]. According to the 2015 report, China’s major airports have a centralised system with name matching alert capabilities, and security monitoring capabilities at major airports are comprehensive. The Tribunal considers that the applicant’s ability to depart China without attracting any adverse interest, indicates that he is of no concern to authorities.
[19] DFAT Country Information Report People’s Republic of China, 21 December 2017.
[20] DFAT Country Information Report People’s Republic of China, 3 March 2015.
112. The Tribunal also has concerns that the applicant has not been entirely up-front with the background personal details provided in his Protection visa application. In his visa application, the applicant gave as his only residential address in China an address [in] Shibei District or Qingdao City. He did not provide a street or apartment number. In his oral evidence he gave an address at [another address] in Qingdao as his only address for the last 10 years he lived in China, which he confirmed was also his hukou. When this was put to the applicant, he asked what address had been included in his visa application. When the Tribunal provided the [address], the applicant stated that it is the address of his grandmother, and that he used his grandmother’s address in his visa application. When the Tribunal questioned why he would use his grandmother’s address, he stated that he didn’t know why.
113. The Tribunal notes that earlier in the hearing the applicant stated that his grandmother had lived in a locality called ‘[deleted]’ (spelling unclear). The Tribunal notes that an internet search using the Google search engine for ‘[name] Road Qingdao’ indicates that this road is located near [an area] within Shibei District. The Tribunal is therefore prepared to accept that the applicant’s grandmother lived at [the address], however the Tribunal does not consider that the applicant has provided a reasonable explanation for why he would list this address as his only residential address in China in his visa application, particularly as on his own evidence, his grandmother passed away in 2009, the year before he arrived in Australia.
114. Further concern is raised by the applicant’s lack of any supporting evidence of his web activities, of his detention or the medical treatment he claims he received after he was released from detention. On 16 March 2021 the applicant provided the Tribunal with a letter from his father and three summon documents which he claims were issued by the Qingdao Municipality PSB to his father between September 2019 and February 2021. The Tribunal raised some concerns with the genuineness of these summon documents at the hearing, and in particular noted the absence of any summons from 2011 to 2016, and questioned why the authorities would express an interest in his case from 2017 onwards, and if such documents had previously been issued, why they had not been provided to the Department. The Tribunal also noted that each of the summon documents refers to the applicant’s father being summoned to interrogations, and contain no reference to any legal proceedings against the applicant, and therefore the Tribunal doubted that they were genuine or provided any support that the applicant continues to be of interest to Chinese authorities.
115. The applicant responded that these summon documents were issued from time to time after he left China. He stated that if he tries to counterfeit such documents he will be imprisoned. He stated that at the time of the Departmental interview, his father did nit realise that this kind of evidence would be important to the case. He stated that each time the police summon his father, they are trying to threaten the applicant. They are telling him to stay low and not post anything on the internet. He stated that they are also an attempt by the police to make him give himself up and force him to return to China. He stated that his father didn’t dare send him any more than this one letter. He stated that his father scanned the letter in and saved it to his own account, and the applicant then logged into his father’s account and downloaded the documents to his computer and then deleted them. The applicant confirmed that his father had not himself been charged with any crimes, nor had he been arrested.
116. The Tribunal has concerns about the origin of the three summon documents provided by the applicant and does not accept that they are genuine documents. This concern is raised firstly by the age of documents, which purport to be issued seven to ten years after the applicant claims he was arrested. The Tribunal finds it difficult to accept that local police would continue to issue an annual summons to the applicant’s father after this length of time when the applicant claims he posted only one blog post, which from his evidence attracted only moderate attention. The Tribunal also considers that the content and format of these summons does not indicate that they are genuine documents issued by the relevant authority, nor do they indicate that the summons have been issued in respect of a criminal proceeding against the applicant. Further information about the content and format of summons are provided in previous RRT Research Responses[21]. A Zhuanhuan Tongzhi shu (Notice of Summons to Testify) is filled out in triplicate[22]. Each of the three copies are slightly different and it is only the ‘Duplicate Page of a Notice of Summon to Testify’ that requires the criminal suspect’s signature. The research indicates that some of the features of these documents include:
a.The documents should state ‘Notice of Summon to Testify’, rather than ‘Summons’;[23]
b.They should contain the criminal suspect’s name, sex and age;[24]
c.As the documents are issued in triplicate, the page handed to the applicant (or his family) should contain the words ‘Retained copy’;[25] and
d.A line specifying the crime.[26]
[21] RRT Country Advice 2010, Country Advice CHN36576, 18 May 2010; RRT Country Advice 2012, Country Advice CHN40816, 5 September 2012.
[22] RRT Country Advice 2010, Country Advice CHN36576, 18 May 2010.
[23] RRT Country Advice 2010, Country Advice CHN36576, 18 May 2010.
[24] RRT Country Advice 2010, Country Advice CHN36576, 18 May 2010.
[25] RRT Country Advice 2010, Country Advice CHN36576, 18 May 2010.
[26] RRT Country Advice 2012, Country Advice CHN40816, 5 September 2012.

117. The Tribunal notes that each of the three summons documents provided by the applicant does not meet the above requirements. While the research indicates that the appearance, layout and wording of summon documents may vary, the Tribunal notes in particular that the documents contain no reference to the applicant’s name, age or gender, and therefore is not satisfied that the summons documents are genuine.
118. The Tribunal has considered all other information provided in support of the applicant’s claims, but is not satisfied that it overcomes the difficulties set out above with the applicant’s credibility. Each of the aforementioned issues are 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 Tribunal finds that the applicant is not a witness of truth and has fabricated accounts of events and claimed fears, upon which he has based his protection claims.
Does the applicant have a well-founded fear of persecution if he returns to China?
119. Overall the Tribunal does not accept that the applicant is a witness of truth in relation to his protection visa claims. The Tribunal does however accept that the applicant is from Shandong Province. It is also willing to accept that the applicant may have worked in [Business 1] while he lived in China. The Tribunal is also willing to accept that the applicant may have had a friend called [Mr B] who ran a food van in China. Given the country evidence regarding corruption, the Tribunal is also prepared to accept that [Mr B] may have been the target of corrupt officials and may have been forced to pay bribes. The Tribunal does not however find the account of [Mr B]’s imprisonment to be convincing and does not accept that he was imprisoned for the reasons claimed, or that he committed suicide or died while in prison. The Tribunal is also prepared to accept that the applicant may have written a blog post on the Tianya website about the corruption of local Chengguan officials. The Tribunal is also prepared to accept that such a blog post may have been deleted within 24 hours of being posted, but finds that if this occurred, on the country information set out above, the post was most likely deleted or removed by a moderator from the website. The Tribunal does not accept that the local police in Qingdao had the ability to remove such a blog post in 2010 from a national website such as Tianya in less than 24 hours, nor does it accept that any authorities removed the blog post within such a short space of time.
120. The Tribunal does not accept that the applicant was arrested [in] September 2010 because he posted one blog post to the Tianya website about a case of local corruption. It does not accept that the applicant was taken to the PSB and interrogated, nor does it accept that he was taken to a detention centre in Qingdao, nor that he was tortured or mistreated in the manner indicated as a result of posting the one blog post in 2010. The Tribunal does not accept the applicant’s claims that his father was able to bribe police officials to release him on bail for medical treatment. The Tribunal also does not accept that the applicant underwent any treatment for gastrointestinal problems immediately prior to his departure for Australia. The Tribunal does not accept that the applicant was required to report to police every Wednesday after release from detention, nor that his home was searched or raided by police in connection with his claims to have posted a blog post in 2010. The Tribunal does not accept that the applicant fled China to escape further imprisonment. The Tribunal also does not accept the applicant’s explanation for the delay in lodging his Protection visa, and finds that the applicant’s Student visa ceased in October 2011, following which he remained in Australia unlawfully for a period of over 4 years and 6 months.
121. While the Tribunal is prepared to accept that the applicant may have written a blog post on the Tianya website in relation to a case of local corruption, on the country evidence, the Tribunal does not accept that this would give him a profile of someone regarded as threatening state security. The Tribunal does not find the applicant’s account of the reasons for his arrest following the publication of one such blog post to be credible, nor does it consider his claims are supported by the country information, which indicates that at the time in question, the Chinese national government relied heavily on websites to carry out their own censorship activities. The country evidence indicates that even today there is some level of tolerance for publication of information regarding local corruption. Accordingly, the Tribunal does not accept the applicant’s claims regarding him being of interest to Chinese authorities on the basis of the publication of one blog post which attracted only moderate attention and does not accept his claims that he was charged with spreading false rumours on the internet or threatening public security, nor does it accept that this would be sufficient to result in the applicant being ‘blacklisted’ by Chinese authorities.
122. The applicant's delay in lodging his application for a Protection visa casts further doubt on the genuineness of his fears and the credibility of his evidence. The applicant first arrived in Australia [in] November 2010. His Student visa ceased on 30 October 2011 and the applicant remained in Australia unlawfully until he lodged the Protection visa application on 27 June 2016, over five-and-a-half years after he arrived in Australia. The applicant has not provided a meaningful explanation for why he delayed lodging his protection visa application. The applicant claims he was afraid at the time and he considered the Protection visa might also be seen as betraying his country, and that he also had fears that his parents would be threatened. The Tribunal does not find these explanations to be convincing or compelling, and notes that the applicant was university educated in China, and finds it unlikely that someone who was genuinely accused of being a threat to state security unnder the circumstances outlined by the applicant, would delay an application for a Protection visa for this period. In the Tribunal’s view, the delay is significant and is suggestive of the applicant not having a genuine fear of harm of returning to China.
123. There is nothing to suggest that the applicant has publicly made any adverse comments about the Chinese government or about any other issues of sensitivity to the Communist Party, and nothing to suggest that he has undertaken any activities in Australia which would result in him being considered a political activist by Chinese authorities. On the applicant’s own evidence, he has not undertaken such activities because his family is still in China.
124. Having carefully considered the country information, including the comments made by the applicant in response to this information, the Tribunal is not satisfied the applicant, as a person who has posted one blog post about a case of local corruption in 2010, and otherwise has no history of activism or criticism of the government, either in China or Australia, will face a real chance of serious harm for reasons of his political opinion upon return in the reasonably foreseeable future. It accepts that internet censorship is extensive in China, however the Tribunal does not accept that this amounts to serious harm in the sense contemplated by s5J(5) of the Act.

125. I am therefore satisfied that there is no real chance that the applicant will be questioned, harassed, detained or otherwise harmed by the authorities or anyone else for reasons of his political opinion, now or in the reasonably foreseeable future.
126. 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 serious harm amounting to persecution from anyone for any reason, if he returned to China, now or in the reasonably foreseeable future.
127. 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?
128. 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.
129. Section 36(2)(aa) of the Act refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB[27] 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.
130. ‘Significant harm’ is defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
131. 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.
132. 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 torture or 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.
133. 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.
[27] MIAC v SZQRB [2013] FCAFC 33 (Lander, 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]
Conclusion
134. 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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION

137. The Tribunal affirms the decision not to grant the applicant a protection visa.
Frank Russo
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.
…

[2021] AATA 5265

28 November 2021

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