1703408 (Refugee)

1703408 (Refugee) [2021] AATA 1544 (24 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1703408
COUNTRY OF REFERENCE:                   China
MEMBER:Catherine Carney-Orsborn
DATE:24 February 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 24 February 2021 at 12:26pm
CATCHWORDS
REFUGEE – protection visa – China – arrested and tortured after organising anti-government protest – dispute with senior police officer – death of cousin caused by police – vague and inconsistent evidence – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
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 9 February 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of the People’s Republic of China, first arrived in Australia [in] April 2016 as the holder of an FA 600 visitor visa. The applicant became an unlawful non-citizen on 1 May 2016.
The applicant applied to the Department of Home Affairs (the Department) for the Protection visa on 4 July 2016. On 9 February 2017, the delegate refused to grant the visa on the basis that the delegate was not satisfied in regard to the credibility of the applicant’s claims. The applicant applied to the Tribunal for review of the decision on 27 February 2017.
The issues that arise on review are whether the applicant is owed Australia’s protection under either the refugee criterion or the complementary protection criterion.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal has before it the Department file and the Tribunal file. The Department file contains the application forms, a copy of the applicant’s passport, an interlinear Mandarin and English statutory declaration setting out the applicant’s claims for protection, and a copy of the delegate’s decision record.
The application for protection form indicates the applicant had the assistance of a migration agent and his statement and information was read back to him in his own language.
The Tribunal file contains a copy of the delegate’s decision record provided by the applicant, a copy and translation of a death certificate for [Mr A], and a copy and translation of a warrant for the applicant issued by the [Public Security Bureau].
The applicant claims that he will be persecuted by the PSB and police after he attempted to pressure the authorities into investigating the road-death of his cousin.
The following information is provided in the application forms. The applicant was born on [date] in Fuqing, Fujian Province, China. The applicant lists no religion and is of Han ethnicity, and speaks, reads, and writes Mandarin. He married on 14 June 1999 in Fuqing. The applicant’s mother, father, brother, sister, wife, son, and daughter reside in China, and the applicant is in contact with them by phone or WeChat. The applicant resided in Fuqing City from birth until March 2015. The applicant lived in [City 1] when he visited [Country 1] and returned to the same address in Fuqing. The applicant attended primary school at the [named] Primary School, Fuqing from [year] until [year]. The applicant worked as a labourer on [Farm 1] in Fuqing from July 1988 until August 2008. The applicant was then self-employed as a driver in Fuqing from August 2008 until March 2015. The applicant worked in [a shop] and construction in [City 1] from March 2105 until June 2015, and then from July 2015 until January 2016. The applicant has been unemployed since April 2016.
The applicant visited [Country 2] from [December] 2013 until [January] 2014. The applicant visited [Country 1] from [March] 2105 to [June] 2015, then again from [July] 2015 until [January] 2016, and again from [March] 2016 until [April] 2016.
In the applicant’s written statement, the applicant states that he worked in [Farm 1] from around July 1988, which was run by [Mr B], a family friend who taught the applicant. The applicant worked at the farm for twenty years, and then purchased a truck in August 2008 and began working as a self-employed truck driver, specialising in long-distance transportation of [livestock] to [other] provinces.
The applicant’s cousin, [Mr A], used to work in [Industry 1], and in December 2013 he wanted the applicant to work with him in a [Industry 1] business with a [Country 2] businessman. The applicant went to [Country 2] with his cousin, but felt the businessman was unreliable, so he gave up and attempted to persuade his cousin to give it up. The cousin persisted and was cheated by the businessman and lost a lot of money.
From March 2014, the applicant began to teach his cousin to transport [livestock] by truck. The applicant’s cousin was in serious financial hardship following the business affair, and the cousin began to work in transporting [livestock].
[Mr B] had a relative who had spent many years in [Country 1] and ran a [shop] in [City 1], as well as working in construction. [Mr B] introduced the applicant to the relative, and the applicant worked in the [shop] and also did [other] jobs for the relative in [City 1]. While the applicant was in [City 1], the applicant’s cousin used the applicant’s truck to undertake the transportation business.
[In] January 2016, the applicant returned to China from [Country 1]. The transportation business was very busy due to the coming Spring Festival. The applicant wanted to help his cousin, but his cousin insisted that the applicant spend time with his family. The cousin died in a serious traffic incident [in] February 2016 while [driving]. There were three other people in the truck, two of whom were killed and one seriously injured, and the truck written off.
The Public Security Bureau (PSB) failed to investigate the serious accident thoroughly, and the authorities did not allow the media to report on the incident, because the troublemakers were three drunk policemen, one of whom was the [Relative C] of the [PSB’s Position 1]. The cousin’s truck had over-turned when he tried to avoid a collision with the drunk policemen’s vehicle.
The applicant took his cousin’s wife and the relatives of the other victims to [the PSB] many times, urging them to investigate the accident and for the troublemakers to be punished and compensate the victims, but the PSB refused and said the accident had been caused by the cousin. The applicant and relatives ran out of patience and, [in] March 2016, held a protest outside [the PSB]. Around 60 to 70 people attended, but the protest was quickly suppressed by the police, and applicant was arrested as he was regarded as the leader.
The applicant was detained from [date] March 2016 to [date] March 2106 and was interrogated and accused of organising an anti-government protest which harmed social security and was accused of inciting the public against the government through damaging the police’s good reputation. The applicant was tortured in order to make him confess. The applicant’s wife spent [amount] yuan to bribe a PSB officer, and the applicant was temporarily released on bail for medical treatment on [date] March 2016. The applicant escaped China on [date] March 2016, and his wife had to bribe another police officer at [Airport 1]. The applicant arrived in [Country 1] on [date] March 2016, but the applicant dared not remain there lest the Chinese police find him, as they could easily find that he had spent a long time in [Country 1].
The applicant claims that he is still under investigation by the PSB and police, and that the PRC authorities consider him a criminal at large, and he would be arrested and persecuted if he returned to China. The applicant’s wife, parents and other relatives have been harassed and threatened by the PSB.
Hearing
The applicant attended a hearing at the Tribunal on the 9 February 2021. The applicant had the assistance of a Mandarin interpreter. The applicant indicated he had no difficulty understanding the interpreter. The applicant’s representative attended the hearing.
A summary of the applicant’s oral evidence is as follows.
The Tribunal went through the purpose of the hearing and the procedures. The Tribunal explained that it had the evidence before it that he had provided to the Department and Tribunal. The Tribunal explained it was important to provide as many details as possible as this was the applicant’s opportunity to discuss his claims with the Tribunal.
The Tribunal went through the refugee definition and complementary protection.
The applicant indicated that he understood the interpreter. He confirmed that the information he provided in his application for a protection visa to the Department was true and correct.
The applicant provided some background, he stated that he was born in [year] in Fuqing, Fujian Province.
He provided some background; His parents, elder brother, elder sister, wife and children all live close by to each other in the same village.
His wife and children live with his parents, they attend school and his wife does some farming.
He works odd jobs in Australia in construction.
The Tribunal asked him to go through why he is fearful of returning to China. The applicant explained that his cousin used his vehicle to deliver [livestock] and had a car accident. He claims he had to take responsibility for the car accident, and it was an offence in China.
Tribunal queried why he had to take responsibility if he was not driving car.
He responded that in China the owner must take responsibility for the accident. The applicant’s cousin died in the accident, he said he was close to his cousin and they grew up together.
His cousin was about three years older than the applicant. The Tribunal asked how old his cousin was when he died. He responded that he did not know his age, but he was three years older than him. He needed to do a calculation and then replied [age] years of age. The applicant said that the cousin’s wife and children live with parents in the same village.
The Tribunal again asked why he, the applicant, would be responsible for accident. He responded because the car was registered in his name and in China the owner is responsible.
The Tribunal again asked why he cannot return to China.
He said the other car was driven by the [Relative C] of the [Position 1] of (Police Security Bureau) PSB and he was drunk. The car was not driving straight, and my cousin tried to avoid a crash and fell into a trench on the road.
Two died and one was injured. The other death was the owner of the [livestock]. He claims that because of the accident police arrested him and took him to the station.
The Tribunal asked why they would arrest him.
He responded that because when he heard about the accident, he was told that the other party was the [Relative C] of the [Position 1] of PSB. The Tribunal asked who the [Position 1] of the PSB he was responded he did not know his name as he was known as [Position 1, Mr D].
The applicant claims that he heard that the driver was the [Relative C] of the [Position 1]. He claims he went to the [Position 1] and asked him to give a reason. He claims he saw footage and the [Position 1]’s [Relative C] was not driving properly and this led to the accident. He claims he asked friends and they told him the driver was the [Relative C] of the [Position 1] of PSB.
He claims he went to ask for a solution.
He claims he was told all the footage was gone and the camera was broken so they would not let him see the footage.
The Tribunal reminded the applicant that earlier he had said he saw the footage and that was how he identified the [Relative C] of the [Position 1].
He responded with words to the effect that in the beginning he asked a friend, and a friend told him it was the [Relative C] of the [Position 1], he went to the police and bribed a police officer who showed the footage, but later on they refused to show him the footage.
He claims he went to the police to ask for a solution as the [Position 1]’s [Relative C] caused the accident and the applicant had to take responsibility.
The applicant claims that he thinks they then destroyed the footage and told him it was his cousins’ fault and he had to take responsibility.
The applicant claims that because he had already seen the footage, he knew what happened, so he asked the [Position 1] for a solution.
He claims that he gathered family members of the families and on [date] March 2016 went to the police station. He prepared banners and asked for justice and that the person who killed his cousin to pay for his acts.
He claims they were there for one and a half hours and then five or six police closed the gate. He claims there were about 60 or 70 people in the group. He claims that he stood in front holding a picture of his cousin and told police they should talk to him.
He claims he was identified as a leader and the police arrested him and took him to a detention centre.
They locked him up in detention. The Tribunal asked what happened in detention. He claims that he was released after 14 days but could not remember the date.
He claims he was hit with sticks and given bad food. He claims they tried to force him to admit his offence and charged him. They wanted him to admit to ruining the reputation of that police and antigovernment activities. He claims he did not admit his offence.
He claims that he was released when his wife bribed one policeman and he was let out on bail. The Tribunal asked if the other police asked why he was given bail, given his evidence is that they are intent on punishing you. He responded that he was not sure but maybe this police office was of high rank.
He claims his wife offered [amount]RMB and he was given release for medical reasons. He claims he did not go to the hospital.
A few days later he went to [Country 1]. The Tribunal asked why he did not seek protection in [Country 1]. He stated that the president of [Country 1] is very friendly with China and it would be easy for the Chinese police to go there and take him back.
He said the case is not closed so he is 100% sure they want to arrest him and take him back. He claims they will try to go to [Country 1] to take him back.
He claims he went three times to the police station and went by himself.
He claims he tried to talk but they did not want to talk to him. The Tribunal asked words to the effect if he really thought that the police would be so intent on getting him that they would go to [Country 1]. He again said they have the power to take him back from [Country 1].
The Tribunal stated that China has a system to deal with complaints against the police and asked why he and his family did not use those systems.
He responded that it would not work as the [Position 1] of police would stop any authorities from investigating him. He claims he could postpone proceedings and put the case aside.
The Tribunal again asked if he was saying that the [Position 1] of a provincial PSB could stop any investigation from a higher centralised government. He said that he did not petition as he thinks the [Position 1] has a high rank and there is no other way.
The Tribunal asked if he thought the [Position 1] had power in Beijing. He responded he did not know that. He agreed the fear was localised. The Tribunal asked why he could not move to another area in China.
He said that everything is online and in the online system. He said there is an outstanding warrant and the case is not closed.
The Tribunal asked if the warrant was issued before he left China, he at first said yes, he then changed to say it was one month after he arrived in Australia.
He claims it was issued after he arrived in Australia.
The Tribunal then discussed his exiting China. He claims he could exit as his wife needed to bribe his sister’s cousin to leave China. He claims he left through [Airport 1]. He stayed in Hong Kong and exited Hong Kong airport.
The Tribunal asked how given his circumstances he could exit Hong Kong. He said he did not know.
The Tribunal asked why he did not provide any evidence of a warrant until after he was asked for it at interview with the department. He said they asked him to provided information about the warrant in China and his wife posted it here, and it took a long time.

The Tribunal pointed out that in his application for protection he said there was no warrant out for him.
He responded that at the time he did not have the arrest warrant with him. He claims that at that time he did not know there was an arrest warrant he only knew it later. He claims he was not asked until at the interview.
The Tribunal pointed out that he had not mentioned it in his statement attached to his original application for protection.
He responded that he only found out about it one month after he arrived in Australia.
The Tribunal said he would know about it as he claims he speaks regularly to his wife. He responded that he only speaks to her occasionally.
Country Information
The DFAT report provides the following information on exit and entry procedures in China:
Chinese law provides for foreign travel, emigration, and repatriation. A number of agencies within the Ministry of Public Security hold responsibility for monitoring entry and exit procedures at airports, including the Public Security Bureau, the Entry and Exit Authority, and the Frontiers Inspection Bureau. China’s major airports have a centralised system with name matching alert capabilities. Facial recognition technology is also widely deployed at all international checkpoints (air, land and sea). Security monitoring capabilities at 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. The government maintains an immigration exit control list.
Biometrics and fingerprinting is conducted at most airports, and the National Immigration Administration (NIA) has taken over from the bureau of entry and exit and is gradually mainstreaming management of regional airports. This is supported by AI enhanced security and surveillance capabilities (see Security Situation), and a document examination centre at Beijing airport with connectivity to all airports across the country.
There are thirteen land border crossings, mostly on the Gobi desert, Himalayas, and southeast Asian jungle, which are harder to police but similarly harder to physically cross. Land borders between Yunnan, Vietnam and Myanmar remain porous. There are border communities, which are permitted to live in border zones with permits. There is also another lower tier of border crossings which only permit nationals of bordering countries to cross (and not other foreign nationals), and are governed by specific agreements between China and Mongolia, China and Myanmar, China and Vietnam, and China and Russia. For example, a Chinese resident can get a visa on demand at the Russian border on a ‘one time’ passport, but cannot travel beyond Russia.
In September 2018, a new joint Hong Kong and China immigration border point located in Hong Kong, created to facilitate the Guangzhou-Shenzhen-Hong Kong high speed rail, was officially handed over to Chinese jurisdiction, and thus is subject to Chinese national law (see State Protection and Security Situation).[1]
[1] DFAT, Country Information Report – China, 3 October 2019, pp. 71 – 72, paras [5.40] – [5.43].
A 2019 Q&A report by the Department provides the following information:
The Entry-Exit Administration Law of the People’s Republic of China regulates the movement of people across China’s borders. Article 5 acknowledges that the state maintains ‘a uniform exit-entry administration information platform to achieve information sharing among relevant administrative departments’. Article 11 states that ‘Chinese citizens exiting or entering China shall present their own passports or other travel credentials and other exit-credentials to the exit-entry border inspection authorities for verification and comply with the prescribed procedures and may exit or enter China only after being permitted to do so upon verification’. Article 12 prescribes under which circumstances a Chinese citizen is prohibited from exiting China:
(1) The Chinese citizen does not hold any valid exit-entry credentials or refuses or evades border inspection;
(2) The Chinese citizen has not finished serving a criminal sentence or is the accused or a suspect in a criminal case;
(3) The Chinese citizen is prohibited from exiting China as decided by a people's court for involvement in a pending civil case;
(4) The Chinese citizen has received a criminal penalty for disrupting national border administration or has been repatriated by any other county or region for illegal exit from China, illegal residence or illegal employment and the prescribed period of prohibition from exiting China has not expired;
(5) The Chinese citizen is prohibited from exiting China as decided by the relevant competent department of the State Council because the national security or interest may be compromised; or
(6) Other circumstances as set out by laws and administrative regulations under which the Chinese citizen is prohibited from exiting China.
In March 2014, the Immigration and Refugee Board of Canada published a report on exit controls and security measures at airports for Chinese citizens travelling overseas, including procedures at check points and the use of computerized identity verification, and sharing of information with officials at airports. The report outlines information sharing by Public Security Officials:
In 10 February 2014 correspondence with the Research Directorate, the Executive Director of the Dui Hua Foundation affirmed that airport security officials have access to the Public Security Bureau of China's online database of citizens who have been convicted of crimes or are wanted by the authorities [also known as Policenet or the Golden Shield]. Similarly, the representative of the Laogai Research Foundation stated that reports on "experiences of activists who have been detained while trying to board an international flight provide clear evidence that airport officials are connected to Policenet" (26 Feb. 2014). A colleague of Cao Shunli, who was also prevented from travelling to Geneva for the human rights training in September 2013, later publicized her own experience at the airport in Guangdong (HRIC 11 Oct. 2013). According to the Laogai Research Foundation, the colleague indicates that when her passport was swiped by airport authorities, scanning equipment immediately made noises alerting airport officials that she was wanted by police. She was subsequently detained in the Guangdong Baiyun Airport and told that Shanghai police would not let her leave. She was then transported from Guangdong to Shanghai for detention and questioning. This woman's experience provides concrete evidence of airport officials coordinating with police departments in tracking and detaining a political dissident.
The Immigration and Refugee Board of Canada report also provides information about security and exit control procedures at Chinese airports:
The representative of the Laogai Research Foundation wrote that the Chinese government checks the passports of citizens attempting to leave the country in order to ensure that they are suitable for foreign travel. Customs officials stamp the passports of citizens approved for foreign travel. Public security officials often confiscate passports held by individuals deemed unsuitable for foreign travel. (23 Feb. 2014)[2]
DFAT Country Information Report People’s Republic of China (2019)
Corruption
On taking office in 2013, President Xi launched a nation-wide anti-corruption campaign promising to catch officials of both high and low rank. Authorities conducted 172,000 anti-corruption investigations in 2013, 330,000 in 2015, 527,000 in 2017, and 302,000 in the first half of 2018. By mid-2017, the crackdown had caught over 1,800 officials, including 182 officials ranked at or above the deputy provincial or deputy ministerial level. It had led to the arrest, expulsion from the Party or conviction for corruption of 1,130 officials (including 139 senior officials). Ousted senior officials include provincial Party secretaries, former generals, and former Politburo Standing Committee member Zhou Yongkang. Targets include heads of state-owned enterprise and officials who have fled China with large sums of public money.
The campaign has led to a decline in some corruption-related activities. The 2017 – 2018 Global Competitiveness Index ranked China 49th out of 137 countries for frequency of irregular payments and bribes, and 20th for favouritism by government officials, compared to 67th for irregular payments and bribes and 34th for favouritism by government officials in 2012. Nevertheless, corruption remains widespread in China. The government and Party did not implement the law consistently or transparently and court judgements were not uniformly enforced against Party members, the military, government departments or state-owned enterprises.
In March 2018, the NPC adopted the Supervision Law (2018) and established a new National
Supervision Commission (NSC), with subordinate Supervision Commissions at the province, city and country level. The NSC is the supreme supervisory organ of the state responsible for investigating corruption within the Party; People’s Courts and Procuratorates; the People’s Congress, their standing committees and subordinate organs; China’s eight ‘democratic parties’; managers of state-owned enterprises, public universities, public research institutes, public hospitals and sports units; and anyone performing ‘public duties.’
Upon its creation, the NSC absorbed the investigative function of the People’s Procuratorate and the entirety of the Ministry of Supervision (which no longer exists), effectively merging with the Central Commission for Discipline and Inspection (CCDI) (the Communist Party’s internal corruption body). The NSC, in conjunction with the CCDI, is thus responsible for conducting graft and ideological investigations against all Party members and public officials. The NSC has the power to detain people under the liuzhi system in residential surveillance at a designated location (RSDL) for up to six months (an initial period of three months, extendable by a further three months), at undisclosed locations without access to a lawyer (see Arbitrary Arrest and Detention and Detention). Conviction rates for corruption cases, as with all criminal cases, are close to 100 per cent (see Judiciary).
[2] Department of Home Affairs, China: 20190218152038 – Christianity in Fujian province – Airport departure process, 1 March 2019, pp. 7 – 8.
Nationality
The applicant travelled to Australia on a valid Chinese passport and claims to be a national of the People’s Republic of China. The Tribunal accepts that the applicant is a national of China and has assessed his claims against China as his country of nationality.
Does the applicant have a well-founded fear of persecution?
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. This involves assessing the credibility of the applicant’s claims. The Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true. However, the Tribunal is not required to accept uncritically any, or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.
The Tribunal found the applicants evidence to lack detail, be vague, unconvincing and at times when given the opportunity to clarify differing versions was inconsistent.
He claims that his cousin was killed in a motor vehicle accident while driving a truck owned by the applicant. He claims that he was responsible as it was his truck. He claims he sought compensation and justice however it was denied to his cousin and his family as the driver of the other car was a [Relative C] of the [Position 1] of the PSB. In his written statement he refers to other drunken police being involved in the fatal accident. He claims he went to the [Position 1] seeking information and compensation, he led a protest, was detained, tortured and a warrant was issued for his arrest. He claims that he is still wanted, and he cannot be returned to China.
The Tribunal had concerns with the veracity of the applicant’s evidence. At hearing he stated that he felt responsible for his cousin as they were very close and grew up together however he did not know his cousin’s date of birth. He stated his cousin was three years older than him and stated his cousin was [age] years of age at death. This contrasts with the document he provided which purports to be a death certificate and lists the cousins age as [two years older] and his date of birth [year]. This would make the cousin six years older than the applicant. The Tribunal would expect close cousins who grew up together and who he feels responsible for to be aware of their ages.
When asked how he knew it was the [Relative C] of the [Position 1] of the PSB who was driving the other vehicle he stated he saw the footage from the video surveillance. This contrasts with his evidence at interview that the footage was destroyed, and he was not allowed to see it. When this was pointed out to the applicant, he changed his evidence to say that he bribed someone, saw the footage, and then it was destroyed.
The applicant at hearing said he identified the [Relative C] of the [Position 1] of PSB from the video footage. He claimed to the delegate, as set out in department’s decision record, that the video surveillance of the highway had been destroyed and a friend had told him three police were involved. At hearing he stated he could identify the [Relative C] of the [Position 1] of the PSB however he stated he did not know the name of the [Position 1] of the PSB as he was just called [Position 1, Mr D]. The Tribunal is concerned about this aspect of his evidence as it goes to the core of the issue and why he decided to protest outside the police office. One would anticipate that before anyone took part in such a fraught exercise such as organising a protest meeting of 60 to 70 people outside a local police station in China, and identifying yourself to the PSB as the leader, you would be sure you knew who the alleged culprit was. The applicant’s inconsistent and vague evidence in relation to how he found out the identity of the drivers of the other vehicle causes the Tribunal to doubt important aspects of his claim, that his cousins’ accident and death was caused by a drunk [Relative C] of the [Position 1] of the PSB and other drunken police officers.
He claims that he was detained for 14 days, and during that time he claims in his written statement he was tortured and mistreated with inhumane methods. At interview, as set out in the decision record he said he was hit with wooden rods, had injuries all over his body and took two to three months to recover from those injuries. At hearing he said he was beaten with sticks and fed bad food. He claimed that this was to force him to confess. He states he never confessed. The applicant claims that he was put on bail and released when his wife paid a bribe to a police officer. When the Tribunal asked how a police officer could organise his release if the other police and [Position 1] were so intent on punishing and silencing him, he responded that he was not sure but maybe the police officer was of a higher rank.
The applicant in his application for a protection visa lodged in July 2016 answered yes to the questions of “have you been found guilty or convicted of a crime or any offence in any country” and “are you aware you are the subject of a criminal investigation or have criminal charges pending against you”, however in response to questions in relation to character he stated that there was no outstanding warrant, he had not been convicted or charged with any offence.
The applicant in his written statement claims that his wife had a friend who facilitated his release. The Tribunal would have considered that if the wife had a trusted friend, they would know who the officer was helping them and the rank. The applicant was unable at hearing to provide convincing evidence of who the trusted friend was.
The applicant, despite injuries he claims took months to heal, was able to leave China a few days later through two international airports without coming to the notice of authorities, and despite the fact he was on Bail. Country Information was put to the applicant that it would be difficult for this to happen. He responded that his wife, though her connections, was able to bribe another police officer working at [Airport 1]. When the Tribunal asked how he was then able to exit Hong Kong he indicated he did not know.
The Tribunal does not accept that someone who was on Bail, suffering severe injuries and the focus of a vendetta from a [Position 1] of Police would be able to leave China on his own passport, through the numerous checks as set out above in Country Information. Further, if as he claims his wife through her connections was able to secure his release and exit through an international airport in the above circumstances, then he would have connections powerful enough to give him confidence to follow complaints to the centralised government, and to protect him from any future threats from the [Position 1] of a local police station.
The applicant provided a copy of an A4 document dated March 2016 he claims is an arrest warrant. The Tribunal asked why, in his application for a protection application, he had stated he had no outstanding arrest warrants against him. He responded that he did not know there was an arrest warrant and only knew about it later. The Tribunal asked why he did not provide a copy of the arrest warrant at his interview with the Department on the 17 January 2017. He claims he did not have it.
At interview with the Department, as set out in the decision provided to the Tribunal, he was asked if a warrant had been issued. He responded it was, however, was unsure of the date. He said he would provide a copy of it. One was not provided to the Department.
The applicant provided to the Tribunal via email a document which the applicant claims is a translation of a death certificate of his cousin. The certificate states that a male truck driver died in a traffic accident. The purported translation shows that there was a traffic accident and a death occurred. There are inconsistencies in the victim’s date of birth and age and date of birth of his cousin provided by the applicant at hearing. The Tribunal accepts that one could be nervous at hearing and make a mistake about a relatives age and date of birth, however when contrasted with the other evidence and the applicant’s claims that he was so close to his cousin, and grew up in the same village, the Tribunal would expect he would be roughly aware of his cousins age and not be out by six years, as six years is a substantial period when growing up with a close relative. The Tribunal does not accept that the death certificate relates to the applicant’s cousin.
The applicant provided to the Tribunal a translated copy of a warrant he claims was issued for his arrest after he left China. The document is a copy, no original was provided. It does not state what the applicant was charged with and states it is to be left with family. This is despite a clause which indicates that the arrest warrant is to be read to the accused and signed by him. It is dated March 2016. The applicant in his application for a protection visa lodged in July 2016, in response to questions in relation to character, stated that there was no outstanding warrant. When this was put to him at hearing, he responded that he did not know about it. At interview with the Department he did not provide a copy of the arrest warrant or mention it until the delegate asked if there was an arrest warrant.

The applicant in his application for protection states he is in contact with his family in China. The Tribunal does not accept that if such a momentous event had happened, that a warrant was issued and served on his family in China in March 2016, that he would not know about it in July 2016. The Tribunal does not accept that he would not mention such an important document which goes to the source of his fears and concerns about returning to China at his interview in 2017. The Tribunal does not accept that the translation of a document purported to be an arrest warrant in relation to the applicant is a genuine document. The Tribunal does not accept that an arrest warrant has been issued by the authorities for the arrest of the applicant in China.
The Tribunal has carefully considered all the evidence as set out above. The inconsistencies, as set out above, on their own appear minor however when considered with the overall evidence and ineffective response to the Tribunals’ concerns the Tribunal is not satisfied that the applicant has been truthful in his claims to fear the authorities in China, who he claims are being manipulated by a powerful individual. In response to queries about how he was released on bail and able to depart China from two major airports controlled by the Chinese authorities the applicant’s only response was that his wife was able to bribe police officers, or in relation to Hong Kong, he did not know.

100. At the hearing the applicant provided to the Tribunal his passport, which indicates that it was issued in the applicant’s own name in 2012. The applicant was able to depart the country in 2016 after he claims he was on bail while he was holding a passport in his own name. The applicant stated in evidence at the hearing that he was able to depart due to his wife bribing a friend and later stated he did not know. The applicant has given evidence of traumatic experiences including a detention, torture and continued harassment. He claims he later had to flee [Country 1] for Australia as authorities in [Country 1] are close to China. This would be the very reason it would have been difficult for him to flee to [Country 1] from China, while on bail, without the knowledge of the Chinese authorities and their extensive checking procedure as outlined in exit information above. The Tribunal has found the applicant to not be a truthful witness and does not accept those claims. The Tribunal considers the applicant’s ability to depart the country on his own passport to be inconsistent with the applicant’s claimed fear of persecution from police manipulated by a [Position 1] of the local PSB. The Tribunal does not accept that he is at any risk from continued threats and harassment that is condoned or uncontrolled by those authorities.
101. For these reasons, and the Tribunal’s finding about the applicant’s general lack of credibility apparent from the applicant’s lack of detail, inconsistency and ineffective response to the Tribunal’s concerns and questions, the Tribunal finds that the applicant has been untruthful in his claims to the Tribunal. The Tribunal rejects that the applicant had been involved in the pursuit of the [Relative C] of the local [Position 1] of PSB or other drunken police for compensation and justice in relation to a traffic accident his cousin was involved in but which he claims he is responsible. The Tribunal rejects the applicant’s claim that he spoke to people about his complaints, he organised a protest of up to 70 people at the local police stations or he held signs and identified himself as a leader. The Tribunal rejects the applicant’s claim that he was detained, harassed, tortured and beaten. The Tribunal does not accept that he was released on bail or that there is an outstanding warrant in China for his arrest. The Tribunal rejects the applicant’s claim that the police influenced by a head of PSB intend to harass, kill or detain the applicant or his family. The Tribunal rejects the applicant’s claim that the applicant was of any interest to the authorities, the police or criminal elements influenced by the police or that they are ultimately controlled by the Chinese authorities.
102. After considering the applicant's claims individually and on a cumulative basis, the Tribunal finds that if the applicant returns to China now or in the reasonably foreseeable future, there is no real chance that he will be persecuted for the reason of his political opinion, membership of a particular social group or for any other Convention reason.
Does the applicant meet the complementary protection criteria?
103. The Tribunal must also consider whether the applicant meets the criteria for complementary protection.
104. A person meets the complementary protection criteria if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
105. ‘Significant harm’ for these purposes is exhaustively defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
106. Section 36(2)(aa) of the Act refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
107. For reasons given above in relation to ‘real chance’, the Tribunal is not satisfied there is a real risk of any of the kinds of significant harm set out in s.5(1). The Tribunal is not satisfied 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 he will suffer significant harm. He therefore does not satisfy s.36(2)(aa).
CONCLUSION
108. 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).
109. 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
110. The Tribunal affirms the decision not to grant the applicant a protection visa.
Catherine Carney-Orsborn
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 1544

24 February 2021

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