1703945 (Refugee)

1703945 (Refugee) [2021] AATA 3305 (9 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1703945
COUNTRY OF REFERENCE:                   China
MEMBER:Mr S Norman
DATE:9 August 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 9 August 2021 at 12:50pm
CATCHWORDS
REFUGEE – Protection visa – China – land disputes – distribution of the ‘anti-government’ letter – substantive claims are fabricated – inconsistent evidence – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5J, 36, 65,499
Migration Regulations 1994, Schedule 2
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 14 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 China, applied for the visa on 9 March 2016.
The Department delegate’s decision was lodged with the Tribunal.
The applicant attended a Tribunal hearing on 3 August 2021. The Tribunal also took oral evidence from a witness (the applicant’s father). At hearing, the Tribunal was assisted by an interpreter. The applicant was assisted by his agent.
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 applicant’s migration history:
In their decision, the delegate noted:
[Details deleted]
The applicant’s receiving country / sections 36(3)(-5A) of the Act:
With the PV application, the applicant lodged:[1]
· Certified copy of People’s Republic of China passport (# EXXXXX ), in the applicant’s name, and issued in Fujian Province on (date given).
[1] Department – from folio 26.
Based on the evidence, the Tribunal accepts the applicant is a citizen of China, and that China is his receiving country.
As there is no material evidence to the contrary before the Tribunal, I also accept the applicant does not have effective protection pursuant to s.36(3)-(5A) of the Act.
The applicant’s claims:
In his PV application, the applicant claimed:[2]
[2] Department file – from folio 36.
·     the applicant was born on [date], in Fujian Province PRC (China). After he finished his education, between January 2009 and December 2010 he had worked on a family farm – and then between January 2011 and November 2015 he had worked in a [shop] – he arrived in Australia on [date] December 2015
·     however, on [date] December 1996 the applicant’s father had been arrested by the police from [a named] Police Station. This was because the father (and others) was protesting over the (forced) loss of his [shop] (which had been demolished). The father, like other business owners who lost their business, had been promised reasonable compensation but the applicant’s father had ‘not received anything within half a year’. In the end, the father organised a protest demanding the government ‘fulfil their promises’
·     the protest was considered to be an anti-government riot (a few police had been harmed at the riot), and the applicant’s father was regarded as the ringleader. The father initially went into hiding but he was later arrested and subsequently sentenced to 18 years imprisonment
·     the applicant was only [age] years of age at the time of his father’s arrest. The applicant said his mother initially told him his father had gone overseas – he said it was not unusual for people to leave home and work outside China. However, the applicant’s mother later told him his father was in prison sometime after September 2002, because some school colleagues called him the ‘son of a criminal’. The applicant said he was ridiculed, humiliated, and sometimes he was bullied and mistreated by other students. He also said he was subject to serious discrimination. He said he could not seek protection from the school or government authorities such as the PSB. The applicant subsequently ceased his education in July 2009 (and he commenced to work on his family’s land)
·     around the time he subsequently commenced to work in the [shop] (2011), the applicant first visited his father in prison. His father told him that during the protest he did not assault any of the police officers, however, he was forced to confess that he had assaulted police officers during his interrogation as he was being tortured
·     in 2013, the applicant’s mother wanted to send the applicant to study overseas through her good friend Mr XXX. It was said his mother thought the applicant would get a better education. Mr XXX worked at a named [place], and he had wide social contacts with some government agencies, including the PSB. The applicant then obtained his passport in [2013] – though he did not study overseas
·     the applicant’s father was released from prison on [date] October 2015. He had been imprisoned for ‘premeditatedly injuring or murdering the people’[3]
·     it was only after the father’s release that the applicant heard the ‘real story’ behind the protest and subsequent police investigation. The applicant became angry after learning of his father’s mistreatment and forced confession on false charges
·     in November 2015, the applicant wrote an anonymous letter to the Fuqing Municipal Government. In the letter he demanded the authorities reinvestigate the case about the protest in 1996, and that they redress the innocent victims and give them necessary compensation. He also asked for the police who were involved to be punished for bringing false charges
·     the applicant had made hundreds of copies of the letter and sent them to relevant government agencies. However, on 22 November 2015, the applicant had come to the attention of the police when he planned to secretly distribute copies of the letter [at a named location], Fuqing City.
·     The police found copies of the letter in the applicant’s bag. He was then sent to the [Police Station] where he was tortured by the police, but he refused to confess writing the anonymous letter (he said he picked up copies of the letter in the street). The applicant’s hand was injured during the torture he suffered (photographs of a bandaged hand were lodged[4]), and he was later released on bail (temporarily) for medical treatment on [date] December 2015. The applicant then had to report to the [Police] Station once per week
·     later, the applicant’s parents asked their friend (principally) Mr XXX to help the applicant depart China. He used his social contacts to get a visa for the applicant and organised the applicant’s escape from China
[3] Department – folio 75.
[4] Department – folio 78.
The applicant’s agent submitted:[5]
[5] Department – from folio 75.
To the Tribunal, the agent also advised that the applicant’s father arrived in Australia in late December 2017. He had independently applied for a PV.
The applicant’s father:
In support of the applicant’s case, the father lodged a statutory declaration dated 27 February 2018. That stated (words to the effect):
[He] arrived in Australia on [date] December 2017 … He was subject to inhuman treatment by the Chinese government and lost his freedom for 18 years and 10 months
from July 1989 to June 1994 he worked as a farmer in his home village … he was financially supported by his wife’s family and opened a [shop] … around March 1996 … (Chinese Spring Festival) he was notified by the Fuqing municipal government to move his [shop] or close it down by June 1996 … He was promised reasonable compensation but insisted he would not move his shop until he received the compensation … In June 1996 his [shop] was forcibly demolished by the government
from June to December 1996, he many times approached the Fuqing municipal government urging them to give him reasonable compensation … He did not receive anything within half a year. In order to create social pressure against the government … He contacted other victims who had lost their property and gathered them together and organise them to have a large open protest
in December 1996, he organised about hundred victims … To have an open protest in front of the municipal government offices. They demanded the government fulfil their promises. The government refused and sent armed police disperse the protest … Many people were injured and around 20 protesters were arrested by the police. He fled initially but was located and arrested on [date] December 1996
he was subsequently sent to a detention centre in Fuqing. There were a few police injured in the conflicts and the protest was regarded as an anti-government riot and he was regarded as the ringleader. He said he called for calm but the riot loss control. After being arrested he was forced to admit he organise the anti-government right and assaulted police. He denied this at the beginning but was subject to cruel torture while being interrogated and he finally had to submit to the police and make a confession according to their will
[date] November 1997, he was sentenced to death for having committed the crime of intentional injury with a two-year reprieve deprived of the political rights lifetime. He was later sent to a named prison
after he was arrested and persecuted his parents and siblings had to break off the relationship with his family because they were afraid of being implicated. At that time the present applicant was just [age] years of age his family worked hard and left of the income of a small piece of farmland
The father said that around one month after he had been released from detention, his son (the applicant) was arrested by the police as the applicant was suspected of distributing anti-government leaflets. The applicant did this because he believed the treatment of his father was unjust. The applicant’s mother, and the father, knew nothing of the applicant’s activities until he was arrested by the police. The father also repeated other claims made by the applicant.
The father then said that when the applicant failed to report to the police station (after travelling to Australia), the police attended the family home. The police told the applicant’s mother (as the father was not then at home) to tell the father to come to the station and explain what had taken place. The father instead decided to run away. During the following two years he hid himself and travelled from place to place in China. He said during this time the police had gone to the family home on many occasions and now think he is the ‘black hand’ behind the applicant’s activities.
On [date] December 2017, the father left China by the airport. Everything was organised by friends. He subsequently lodged a Protection visa application with the Department, however, at the hearing, the father said the Department had not yet decided his case.
At the end of the hearing, the father was asked on multiple occasions if he wished to say anything further in support of the applicant’s case. The father said he could ‘prove’ his son would be harmed if he returned to China. When pressed, the father then repeated many of the claims that had already been discussed with the applicant, and he also referred to the hardships he suffered while he was ‘on the run’ in China.
The Tribunal notes that both the father and the applicant previously resided in or around Fuqing City, Fujian Province, China. At hearing, the Tribunal noted the country information stated:
5.66 There is a well-established history of individuals from Fujian using fraudulent documents to obtain visas to Australia and other western countries. Fraudulent activity is supported by highly organised and well-resourced networks of agents and counterfeiters. High-risk documents include financial and employment records, which can be either fraudulent or altered. Organised immigration malpractice and syndicates selling immigration packages for visa applicants are active in Fujian. Syndicates have been known to alter identity documents such as passports or national identification cards to misrepresent the applicant’s place of birth (to avoid greater scrutiny of their applications). Sources report that applicants originating from Fuqing, Lianjiang and Pingtan have demonstrated particularly high rates of fraud and non-compliance. [6]
[6] DFAT COUNTRY INFORMATION REPORT, PEOPLE’S REPUBLIC OF CHINA, 3 October 2019.
Be that as it may, and as also noted at hearing (words to the effect), land disputes are not uncommon in China, and the Chinese authorities are capable of acting in a capricious and arbitrary manner. Therefore, and as did the delegate, the Tribunal has decided to accept the father was imprisoned for many years in China.
The Tribunal will also accept the father was charged and or convicted with ‘premeditatedly injuring or murdering the people’.[7] The Tribunal will also accept the father was released from prison on [date] October 2015. He then returned to reside with the applicant and the father’s wife (the applicant’s mother), in or around Fuqing City, Fujian Province.
The applicant’s school life:
[7] Department – folio 75.
As noted above, the applicant claimed to have been mistreated at school due to his father being imprisoned. The applicant completed his primary school education, but the taunts and teasing during his middle school years, at which time he confronted his school colleagues about their comments, caused him to be considered a trouble-maker. He therefore only completed one year of his two years of middle school. As his mother was also struggling at the time on the family farm, the applicant decided to work on the family land - and which he did for approximately 18 months. His mother then arranged for him to be apprenticed at a [shop], which was operated by one of her distant relatives. There was also discussion about sending the applicant out of China in 2013 for education (when he was approximately [age] years of age), and a passport was obtained, but at hearing he said his mother was unable to afford the expense of further education.
The Tribunal is aware that in China, the family members of Uighur,[8] activists/dissidents,[9] and presumably the family members of persons seen as being an ongoing threat, may be subject to the adverse attention of the authorities. However, that did not appear to be the case for the applicant, as his mistreatment while at school was directed at him by (principally if not solely) other students.
[8] DFAT COUNTRY INFORMATION REPORT, PEOPLE’S REPUBLIC OF CHINA, 3 October 2019, [4.7].
[9] ibid, [4.29]
After then considering the evidence, the Tribunal will accept the applicant was teased at school due to his father’s imprisonment. However, the now [age] year-old applicant completed his primary education in China, he managed to find work as an [apprentice], and he had now worked (since arriving in Australia) on construction sites. The applicant neither made any claims to have been bullied by his former school colleagues after leaving his school.
Accordingly, the Tribunal does not accept the applicant would now have a real chance of suffering serious (or significant) harm in China, arising from the taunts and teasing to which he was subject while at school in China, or by the persons who effected that treatment.
Contact with the applicant’s mother:
The applicant’s mother was said to still reside in or around Fuqing City, Fujian Province in China. When asked, the applicant said he had been able to speak to his mother around once per month since arriving in Australia (on [date] December 2015). When asked, he said she spoke to him after the police came to visit the mother, in search of the applicant. The country information stated:
2.55 … the government deploys a vast internal security apparatus. China’s internal security agencies include: the Ministry of Public Security, which is responsible, inter alia, for the police, border security and household registration (hukou) … ; the Ministry of State Security, the main intelligence agency; the People’s Armed Police (PAP), a paramilitary force responsible for internal security; and the People’s Liberation Army (PLA), China’s military … In November 2013, President Xi established a new National Security Commission to strengthen coordination of both international and domestic security issues.
2.56 Security personnel and surveillance technology are ubiquitous throughout China. Increased artificial intelligence (AI) capabilities serve China’s economic and military modernisation interests, while simultaneously enhancing Party stability through increased power to surveil and control the population …
2.57 Some reports estimate 170 million surveillance cameras have been installed in cities and towns across the country in the past decade. Everyday street crime and violence in China’s major cities is generally low. [10]
Though:
3.124 Prisoners and their families have reported harassment or intimidation, including police surveillance, telephone wiretaps, and property and body searches. [11]
[10] DFAT COUNTRY INFORMATION REPORT, PEOPLE’S REPUBLIC OF CHINA, 3 October 2019.
[11] DFAT COUNTRY INFORMATION REPORT, PEOPLE’S REPUBLIC OF CHINA, 3 October 2019.

The Tribunal notes the country information indicated the authorities have considerable access to security apparatus and surveillance in China. However, at hearing, the Tribunal said it may consider whether it was plausible the police would visit his mother around once per month for the last (approximately) 5 ½ years as claimed, in search of the applicant, given the applicant was said to have departed on a passport in his own name and the police would have been aware he had not returned to China.
The applicant then said that ‘in the beginning’, the police would visit his mother more regularly than they did at present. However, and as discussed at hearing, the Tribunal does not accept it is plausible (and now does not accept) the Chinese authorities would expend resources to regularly visit the applicant’s mother in China in order to find the applicant (as was claimed) – particularly given they would have been aware he had departed China and not returned.
Next, the applicant was released from detention after being injured (photos lodged). At hearing he said he was detained on [date] November 2015, that he was held and mistreated for 11 days, that he was released to undergo surgery on his hand, and that he then spent three weeks in hospital. As noted at hearing, bail is not necessarily common in China:
4.21 … 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.’
…..
4.24 Police and other security agencies have broad administrative detention powers and the ability to detain individuals for extended periods without formal arrest or criminal charge. Police can hold individuals for up to 30 days in criminal detention before deciding whether to pass the case to prosecutors, and for an additional seven days prior to formal arrest. …[12]
[12] DFAT COUNTRY INFORMATION REPORT, PEOPLE’S REPUBLIC OF CHINA, 3 October 2019.
The Tribunal is satisfied that if the claimed content of the anonymous letter was read by the police, there would have been little doubt from where it was sourced, particularly given copies of the letter were found on the applicant. The applicant confirmed he was released to undergo surgery on his hand – however, the Tribunal has doubts whether he would be released for this reason, if he was detained as someone who had ‘distributed anti-government material’ as claimed.
Given the Tribunal is not satisfied the applicant is generally credible, I do not accept his hand was injured for any reason he claimed.
The distribution of the ‘anti-government’ letter:
As noted above, the father was released from prison on [date] October 2015. It was claimed that prior to the father’s release, and though the applicant was able to visit his father on around 10 occasions between his first visit (in 2011) and the father’s release, the father was not able to tell the applicant the ‘real story’ behind the protest, and his subsequent mistreatment by the police. However, after his release, the father told the applicant what really happened, and the applicant was very angry.
At hearing, the applicant explained that he had heard of a person in Mongolia around 2014, who had been wrongly convicted of a crime, and after contesting the case, that person had the conviction overturned, and the person was compensated. The applicant said this gave him some hope, so without telling his mother or father, the applicant drafted and distributed an anonymous protest letter about the circumstances surrounding the protest for which the father had been imprisoned, rebuking the police engaged in the investigation, and objecting to the failure to provide adequate compensation for the lands/property that had been taken.
Within the five weeks after the father had been released from prison, the applicant sent this letter (anonymously) to (ie) the Fuqing Municipal Government. He then printed ‘hundreds of copies of the letter’ and began distributing copies around Fuqing City (not just [a named] Rd).
At hearing, the Tribunal noted the applicant was around [age] years of age at the time he drafted the anonymous letter, that he understood it was dangerous as the letter was anonymous, and it may not appear plausible he would have risked his own life or the life of his father and or mother, within five weeks of his father’s release. The applicant said the Mongolia case gave him some hope. The country information stated:
5.8 Chinese citizens have the right to lodge complaints against the police in their city of residence through a telephone hotline, or online complaints website, in person, or in writing to the Public Security Bureau Complaints Office. Local authorities have targeted petitioners (including those with complaints against police) with punishments including arrest and detention … Complaints against police rarely lead to disciplinary action and, where investigations are announced, their outcomes are not publicly released…[13]
And:
3.136 … Sources report that local officials are encouraged to ensure protests do not reach Beijing. The SCS can be used to restrict movement of people to prevent them from travelling to Beijing to petition the government … [14]
[13] DFAT COUNTRY INFORMATION REPORT, PEOPLE’S REPUBLIC OF CHINA, 3 October 2019.
[14] DFAT COUNTRY INFORMATION REPORT, PEOPLE’S REPUBLIC OF CHINA, 3 October 2019.
The Tribunal understands it need not make an applicant’s case for them, and the country information suggests there is no guarantee that any petition lodged by an applicant would be successful. However, and irrespective of the aforementioned Mongolia case, the Tribunal is satisfied that if the claimed content of the anonymous letter (the applicant understood what he allegedly did was dangerous) was read by the police, there would have been little doubt from where it was sourced, particularly given copies of the letter were found on the applicant. Neither do I accept it is plausible he would not have at least, discussed his plan with his parents. The Tribunal therefore does not accept it is plausible (and the Tribunal now does not accept), that the applicant would have risked his and his family’s life by distributing an anonymous letter as he claimed.
Next, at hearing the applicant said he had distributed around 600 copies of the letter to various addresses in Fuqing City. However, on [date] November 2015, while he had copies of the letter in his bag, he was arrested by the police. The letters were taken by the police and the applicant was taken to the [Police] Station. There he was held for 11 days and ‘tortured’. The mistreatment eventually resulted in the applicant being released in order to undergo hand surgery.
When discussed at hearing, the applicant said that when he was detained, he had other advertising material in his bag, and he said he just had picked up the anonymous letters off the street. He also said that he was released as the police were not able to prove he committed any offence as even under ‘torture’, he remembered the mistreatment of his father, and he refused to confess.
However, and as noted at hearing, the Chinese police are capable of acting in a robust manner, his father had just been released from prison some five weeks earlier, the anonymous letter referred to the very incident the applicant said his father was convicted of (and the father was allegedly the ‘ringleader’), and justice and proper compensation were then requested. The Tribunal then said it may not accept it is plausible the police would need a confession on his part, in order to convict him of an offence. The Tribunal also notes the father was not apparently detained for this letter, only the applicant – and the father was said to have regularly visited the applicant while he was in hospital (for three weeks), so the father’s whereabouts were readily known.
The applicant said this was none-the-less true, but the Tribunal does not accept it is plausible. Further, and given the Tribunal was not satisfied the applicant was generally credible, this is one reason that satisfied the Tribunal the applicant did not distribute an anti-government letter as claimed.
The applicant’s departure from China:
The Tribunal notes the applicant said he was detained on [date] November 2015, remained in detention for around 11 days (until approximately [date] December 2015); then he went to hospital for three weeks (until approximately [date] December 2015); and then he arrived in Australia on [date] December 2015. When asked, he agreed that one condition for his release on bail was that he was to report to the [Police] Station once per week. When asked at hearing, he believed that he had attended the [Police] Station on around six occasions after his release from detention and prior to his departure for Australia.
In their decision, the delegate referred to the following contemporaneous DFAT advice, about departing China:[15]
[15] DAFT Country Report China – Final, 3 March 2015, CISEC96CF1643.
The above country information was not dissimilar to the present DFAT advice, but it refers to the position around the time of the applicant’s departure. That being said, in their decision the delegate noted the applicant said he had departed China lawfully on a passport in his own name on [date] December 2015. This was at a time that he claimed to have been subject to weekly reporting to the [Police] Station. The delegate said that country information indicated there were a number of agencies which monitor the entry and exit of travellers at Chinese airports. The delegate believed this may indicate the applicant was of no adverse interest to the Chinese authorities at the time of his departure. Further, the applicant did not advise how he managed to evade detection of these agencies upon his departure. The delegate continued that it was also reasonable to assume if the applicant was required to report weekly to the police station, his movements would in fact be monitored by the Ministry of Public Security.
The applicant had then claimed that (principally) a man named Mr XXX had assisted him to depart China. At the Tribunal hearing, the applicant said that Mr XXX was in fact the boyfriend of a remote relative. The delegate then continued the applicant claimed that Mr XXX knew inter alia police officers at [Police] Station. However, the delegate did not accept the applicant was arrested or detained in China as a result of a letter he wrote regarding his father’s treatment in and from 1996. Neither did the delegate accept the applicant was in any way involved in his father’s situation. The delegate noted the applicant said he wished his father’s name to be cleared but the delegate was not satisfied the applicant would risk the mistreatment of his father, while his father was in China.
The Tribunal notes the country information also stated:
Most citizens could obtain passports, although individuals the government deemed potential political threats, including religious leaders, political dissidents, petitioners, and ethnic minorities, routinely reported being refused passports or otherwise prevented from traveling overseas. …[16]
[16] Country Policy and Information Note China: Background information, including actors of protection and internal relocation Version 2.0 March 2018, p.44.
At hearing and given the multiple agencies who checked on persons departing from China through an airport, the Tribunal said it may not accept the applicant was of any adverse interest to the authorities. The Tribunal notes the applicant was assisted by an agent when preparing his PV application, and when asked, there was no indication he departed China unlawfully.[17] The applicant then said that after his father had travelled to Australia as a tourist (in December 2017), he was only then told that his father had paid RMB300,000 (now approximately AUD 64,000 – though his father also said it was more in the vicinity of RMB400,000 - approximately AUD 84,000), in order to bribe officials to allow the applicant to depart China (this money was said to have been borrowed).
[17] Department – folio 53.
The father was said to have not wished to burden the (then [age] year-old) applicant with this information, on his departure from China. The applicant only learnt of this information after the Department decision. When asked, the applicant believed that he had also told someone previously about this.
Be that as it may, and when discussed at hearing, the applicant had said he was accompanied to the airport (prior to his departure from China) by Mr XXX (who had arranged everything); that Mr XXX had met a man at the airport and the applicant was taken through a staff entrance (away from other passengers); and he subsequently boarded the aircraft to Australia. The Tribunal understands the applicant was then only [age] years of age and he had not apparently travelled by aircraft previously. But instead of passing through the airport (with all other travellers), the applicant is claiming he circumvented the airport security, and all passport checks, by proceeding through the staff entrance (and by his father allegedly paying a substantial amount of money). As noted at hearing (words to the effect), the country information stated:
5.62 Organised irregular migration is common, and is backed by a high level of sophistication with respect to counterfeit documentation for visa applications. …
And:
5.63 DFAT is aware of sophisticated syndicates that provide packages, with targeted background stories, to support fraudulent documents used in visa applications.[18]
[18] UK Home Office, Country Policy and Information Note China: Background information, including actors of protection and internal relocation Version 2.0 March 2018.
However, the applicant was said to have been of ongoing adverse interest to the Chinese authorities and yet, he departed China on a passport in his own name. After then considering the country information, the Tribunal does not accept it is plausible the applicant, who was assisted in preparing his PV application by his agent, would not have understood his departure from China was at least irregular (if that recent claim was true), or that he would not have mentioned this previously, if his recent evidence of irregular departure, or his reasons for ‘fleeing’ China, were true.
The Tribunal therefore does not accept the applicant departed China unlawfully or irregularly, or that any (bribe) money was paid to facilitate his departure from China.
Findings on the applicant’s above claims:
After considering the above adverse credibility findings, and even after taking into account the accepted evidence cumulatively, the Tribunal is not satisfied the applicant is a generally credible witness. Therefore, I do not accept the applicant drafted or distributed anti-government material (in particular the anonymous letter); I do not accept the applicant was arrested for the reasons he claimed or at all; if the applicant’s hand was injured, I do not accept it was for the reason he claimed; and I do not accept the applicant had to flee China for the reasons he claimed, or for any other reason.
Therefore, the Tribunal does not accept the applicant has a real chance of suffering serious (or significant) harm in China, for any reason discussed above.
The applicant’s relationship with his father:
As noted above, the Tribunal has accepted the father was imprisoned for many years in China; that he was charged/convicted with ‘premeditatedly injuring or murdering the people’; that the father was released from prison on [date] October 2015; and that he then returned to reside with the applicant and the applicant’s mother, in or around Fuqing City, Fujian Province. As also noted above, the Tribunal has accepted the applicant was teased/taunted by school colleagues in China for reason of his father’s incarceration, and that the applicant left without completing his middle school.
However, the applicant then claimed (and the Tribunal accepts) to have found work with his mother on the family land in China, then he found work as an apprentice in a [shop]. He had also regularly worked in Australia since his arrival (in December 2015) on construction sites.
At hearing, the Tribunal said (words to the effect) that it had not made any finding on whether the father had been arrested (though I have now accepted this took place); or even if he was, the impact this may have on the applicant should he now return to China. For instance, the Tribunal notes the applicant completed his primary education, he was engaged as an apprentice in China (through family connections, notwithstanding the father’s family had ‘break off the relationship’), and he would now have skills, due to his work in construction in Australia. The country information stated:
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. … 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 … 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 father claimed to have been deprived of political rights for life, though no such claim was made about the applicant. Further, there was no claim the applicant or his mother were harmed, harassed or even questioned by the authorities, in the years the father was imprisoned. That being said, the country information considered, suggests to the Tribunal, that it may usually be the case that family members of possibly more high profile persons, or who were members of more sensitive groups, had a real chance of suffering serious harm in China for reason of ongoing harm, harassment or questioning by the authorities. That is presumably why the applicant and his mother were not similarly harmed during the father’s incarceration – and as noted above, the Tribunal has not accepted the applicant’s mother was visited by the Chinese authorities after the applicant’s departure from China.
Therefore, and even accepting the father was detained and imprisoned for a lengthy period, the Tribunal is not satisfied the applicant has a real chance of suffering serious (or significant) harm for this reason, on return to China.
Failed asylum seeker:
The country information stated:
5.44 DFAT is not able to verify the treatment of failed asylum seekers returned to China. DFAT has no information to suggest authorities target individuals solely for having sought asylum abroad if they have not otherwise come to adverse attention. DFAT is unable to verify whether having sought asylum abroad would worsen the situation of individuals attracting adverse attention from authorities for other reasons. Chinese authorities are likely, however, to be aware of the behaviour of Chinese asylum seekers while they are outside of China… [20]
[20] DFAT COUNTRY INFORMATION REPORT, PEOPLE’S REPUBLIC OF CHINA, 3 October 2019.
After putting the gist of this information to the applicant at hearing, the applicant eventually repeated he would be harmed in China, for the reasons discussed above. He did not claim, for instance, to belong to any clubs, organisations or groups which would bring him to the adverse attention of anyone in China. Further, the Tribunal has not accepted he had come to the adverse attention of the Chinese authorities (prior to his departure) for any reason. After then considering the country information, the Tribunal is not satisfied the applicant has a real chance of suffering serious (or significant) harm in China, if returned as a failed asylum seeker.

For the reasons given above, the Tribunal is not satisfied 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). For the same reasons, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Mr S Norman
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.
…

[19] UK Home Office, Country Policy and Information Note China: Background information, including actors of protection and internal relocation Version 2.0 March 2018.

[2021] AATA 3305

9 August 2021

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