1704626 (Refugee)

1704626 (Refugee) [2021] AATA 2876 (24 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1704626
COUNTRY OF REFERENCE:                   China
MEMBER:Joseph Lindsay
DATE:24 May 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 24 May 2021 at 9:36am

CATCHWORDS

REFUGEE – protection visa – China – religion – Christian – member of the local church – substantive claims are all fabricated – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 359, 424AA, 499
Migration Regulations 1994 (Cth), 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 2 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 19 August 2016.
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–5LA, 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 (DFAT) 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 considered the applicant’s claims, as well as the oral evidence that the applicant provided to the Tribunal over the course of several audio hearings, on 2 October 2020, 22 October 2020 and 2 November 2020, as well as the documentary evidence provided to the Tribunal.
In the hearing the applicant claimed:
-he joined the Chinese military, specifically the People’s Liberation Army (PLA), when he was 18 years old, but that he was actually 16 years old so his father changed his age so he could join the military. His total period of military service was two years.
-He did basic training for three months, but he was not given a service number.
-His rank on joining the PLA was the rank of Private.
-He then spent six months training to be a member of the Military Police, before he commenced his service as a member of the Military Police.
-He was then posted to a gaol in Gansu Province to guard prisoners.
-In the entire time of his military service, he never once left Gansu Province.
-He left the PLA after two years because he met a criminal who he thought was a good person and so he helped the person’s family to make an appeal to the court. He said that because he violated the “military rule” by helping the criminal, he was dismissed from the PLA because in the PLA such behaviour is not allowed.
-Despite his behaviour, he did not face any disciplinary charges whilst he was in service. He said that he was only punished because he violated the “military rule” and he was given a warning and then he was not able to stay in the military and dismissed early.
In later questioning, the applicant changed his evidence to say that he did not serve in the PLA, but rather he just served in the “local military police.” He claimed that the “local military police” simply belonged to the “local authority” and was not part of the PLA. When asked why it was called the “military police” if it was not part of the military, he said:
It is a kind of military police with a Chinese character.
Because the applicant has first raised claims about his parents, the Tribunal asked the applicant about his parents. He said he did have parents and that his parents were still alive. He said his parents lived in [a named] Village. He said he had a younger brother, named [name] who was born in [year]. He said his brother was now working in a factory in Jaingxi Province. When asked if he had wealthy parents, he said no and said that his family were farmers and not wealthy people. However, the applicant then said his father was actually a “substantial farmer” who grew edible food like wheat and corn, but then the applicant went back to say that his parents were “just ordinary people.” He said that every Sunday he would call his family using such messaging apps as “WeChat” or “QQ.”
When asked if his parents or brother had any problems in China, he said they don’t have any problems with their living. When again asked if his parents or brother had any problems, he said his parents are Christians and that they joined a prayer group and they were arrested by the local government because they don’t allow believers to spread the gospel. When asked when his parents were arrested, he said his parents were arrested in 2018 and 2019. He indicated that he learned that his parents had been arrested after the events had happened.
When asked for a further explanation, the applicant said that since his childhood, his parents have been Christian, and that Zhu Ma Dian City is very close to Luohe City.
The Tribunal again asked about the applicant’s assertion that his parents had been arrested in 2018 and 2019. In response, he said he was “not so clear” about that situation. He said that he was simply aware that his parents were not allowed to attend gatherings and they were not allowed to spread the gospel.
When asked what type of Christians his parents were, he said they belonged to the Family Church. When asked what the Family Church was, he said it was the Family Protestant Church.
When asked about the incident where his parents were arrested in 2018, the applicant said that the police just “confined” them and told them not to spread the gospel because that was not allowed by local government. He said his parents were released two weeks later because they were farmers. He then said because he was not there in China when the incident happened, he was not clear about the whole incident. When asked if his parents were detained for two weeks, he said “that’s right.” When asked where his parents were held, he said they were detained in the security detention centre in [a named district]. When asked how he found out his parents had been detained, he said he rang them and asked them where they were detained, and they told him they were detained in a security detention centre near their house. He said he had spoken to both his mother and father about the incident. When asked if his mother or father were harmed whilst they were detained, he said that neither his mother nor father were harmed while they were detained. Then he said his father only had a small injury and his mother was not injured and she just received a warning. The Tribunal again asked if his mother or father were harmed whilst they were detained, and he said:
no, they are not harmed. They only educated them and brainwashed them.
When asked what he meant when he said “educated them and brainwashed them”, he said the police educated them not to attend the church and not to spread gospel which is not allowed by the government. When asked if he remembered when in 2018 this happened, he said that it happened in around August or September when they are going to harvest corn. He then said that his parents stayed home and prayed and did not spread the gospel again until 2019 when they had a gathering and the government stopped them from doing that and nothing else has happened. When asked what he meant when he said his parents did not spread the gospel again until 2019, he indicated that because his parents were banned by the government and they prayed, they might be arrested again by the government because they were “spreading the gospel.”
When asked if he was saying that even though his parents were warned not to “spread the gospel” in 2018 they did it again, he said “yes.” When asked why his parents continued to “spread the gospel” despite being warned, he said that his parents are afraid of spreading the gospel because they are in fear of being arrested by the government.
When it was put to the applicant that he had just said that his parents did spread the gospel again, he said:
no, since 2018 when they were arrested they only prayed at home, they are afraid of spreading the gospel. In 2019, they did not spread gospel because the government will stop them from doing that when they go out. Because of that experience, they did not spread the gospel anymore.
When it was put to the applicant that he had just said that his parents were arrested in 2019, he said that his parents were arrested once, between 2018 and 2019, and he did not say that his parents were arrested again in 2019.
When it was put to him that he was saying his parents were only arrested once in 2018, he said:
correct. I only said between 2018 and 2019 they were arrested once. They were not arrested twice because they are afraid of spreading gospel.
After the hearing resumed, the Tribunal asked the applicant whether he had ever been harmed in China, and in response he said “no.”
When asked if he had ever been threatened in China, he said “yes, when I worked.” When asked for a further explanation, he said there was [a workplace incident]. He said that when the refilling started, he noticed another person in the chamber. He said that he tried to push this person outside the chamber, and then the water flooded, and then he tried to run out of the chamber. He said that because of this incident, the [leaders] tried to evade their responsibility because the [government employer] was investigating and the [leaders] pushed the responsibilities to “us all in lower level” and because of that he was “criticised.” He said that because he was “criticised” he immediately applied for resignation and he left the workplace.
When again asked if he had ever been threatened in China, he said the incident happened in [Guangzhou]. When again asked if he had ever been threatened in China, he said “no.”
When asked what made him decide to come to Australia, he said that when he worked [for his employer] he had been treated unfairly, and also he had conflict with his wife. He said that there were also people from his town that went abroad, and he went with one of those people to Australia. When asked who that person was that he travelled to Australia with, he said it was [a named person] but that [this person] has left Australia and has gone back to China.
When again asked why he came to Australia, he indicated that he had a bad marriage and he could not find good work in China.
When asked if he got the work he wanted when he came to Australia, he indicated that he came to Australia on a student visa, but he just had a tour and did not do any study. He said that he forgot what type of student visa on which he came to Australia, and he could not remember what course in which he had been enrolled. He indicated that the student visa had been arranged by an agent. He then said that he came to Australia on a student visa with no intention of ever studying. When asked why he did that, he said he just came to Australia to work and live. He indicated that he had been doing [specified] work but that he had [no] qualifications. He freely admitted that he was not qualified to do the work he had been doing in Australia.
The applicant then said he came to Australia on [date] November 2013.
When it was put to him that he indicated that he never told the Department that he only came to work and not to study, he said “that’s right.”
The applicant then said that his student visa was cancelled in 2018, but he was not sure which date in 2018 his student visa was cancelled. He then said that he did not know how to read English and can only speak a little bit of English.
When asked when he first applied for protection, he said it was in August 2016.
When asked if he applied for protection before August 2016, he said “no.” When asked again whether he applied for protection before August 2016, he said “no.” He again confirmed that the first time he ever submitted an application for a protection visa was in 2016.
When asked if he ever went to the Department to speak about his protection visa application in 2014, he said “no.” He again confirmed that he did not go to the Department to speak about his protection visa application in 2014.
The Tribunal put to the applicant that he had now told the Tribunal on multiple occasions that he did not go to the Department to speak about his protection visa application in 2014. In response, he again said he did not go to the Department to speak about his protection visa application in 2014 and that he never applied for a protection visa before 2016.
When the Tribunal asked the applicant if he had applied for a protection visa in 2014 and then withdrew that protection visa application, he said:
Yes, when I came to Australia because I did not know English I approached the agent so I can stay here lawfully. However, other people told me while I’m studying it was unnecessary for me to lodge the application therefore I went to the agent and asked the agent not to apply that for me.
When the Tribunal again asked the applicant if he had applied for a protection visa in 2014 and then withdrew that protection visa application, he said: “I don’t know.” He then said that he did not know if he had applied for a protection visa in 2014 and then withdrew that protection visa application.
When asked if he remembered going to the Department in 2014 and withdrawing his protection visa application, he said:
I don’t know because I only went to the Department to do the fingerprint. Whether other people did that for me, I don’t know.
When asked if he was saying that he did not apply for protection in 2014, he said “yes.”
When asked if he was saying that he did not withdraw a protection visa application in 2014, he said “I don’t know, maybe other people.” When asked who the “other people” were he said “the agent.” When asked who the agent was, he indicated that he could not recall the name of the agent but the company was in [Suburb 1]. He again confirmed that he could not recall the name of the agent he said he used to assist him.
When asked what he meant when he said he went to the Department to do fingerprints, he said the agent asked him to go there and he had no idea. When asked when he went to the Department, he said he could not remember. When asked if he remembered what he did at the Department, he said “I don’t know the exact time or approximate year because it’s been many years.”
The Tribunal put to the applicant that he had said he went to the Department to do fingerprints and asked him what he meant by that. In response he said he just did what the agent asked him to do, which was to give his fingerprints.
When asked if the agent went to the Department with him, he said “no.” He said the agent only took a train with him to Town Hall and then he went to the Department alone. When asked what he did at the Department he said “I just did the fingerprints and left.”
When asked how he could communicate with the Department if he could not speak English well, he said “there is a booklet there in the Chinese language.” The applicant said that he did not speak to anyone in the Department in English. When he was asked if he was sure that he did not speak to anyone in the Department in English, he said “I’m sure, definitely.”
When asked why he applied for protection in 2016, he said:
Because I wanted to work and also my parents in Family Church which aren’t allowed to preach and also spread gospel and my mother said just stay there and that’s why I apply for protection visa in 2016.
When again asked why he applied for protection in 2016, he said:
Because not long after I went abroad, my parents were not allowed to spread gospel, and the church was disbanded with force and the government did not allow to do the preach, and my mother said to stay there and apply for the visa, and I can keep safe here and stay here lawfully.
When again asked why his mother told him to apply for a protection visa, he said:
She did not tell me to apply for the protection visa, she only told me in the family she can’t spread the gospel and she ask me to work here, and the reason I applied for a protection visa is because many things happened in my family.
When asked about the things he said happened in his family, he said:
In 2017, the pastor of my parents resigned from the government church and then he organised a Local Church.
When asked what the events of 2017 had to do with 2016, the applicant said:
It’s nothing to do with 2016. Because I constantly get in touch with my family, and my parents believed in Jesus everyday and my parents ask me if I can find a church here.
When asked what happened in 2016 that caused him to put in a protection visa application, he said:
My parents said that because of the church, the family is persecuted and asked me to apply for the visa.

When it was put to the applicant that he had indicated to the Tribunal that nothing happened to his parents in 2016, he said:
Perhaps my expression is not clear. Because they don’t have the freedom to spread gospel in China.
When asked who prepared his protection visa application in 2016, he said:
I myself in 2016. I find person who understands English and I lodged the application myself, and I wrote it myself.
The applicant again confirmed he wrote his 2016 protection visa application himself. The applicant then said that he wrote his claims in Chinese and he asked other people to help him with the translation. He said he paid a person who is a certificate translator for this task.
When asked if he was aware of the submissions he had given to the Tribunal just before hearing, he said:
Yes I know before hearing I myself wrote the Chinese and asked others to translate for me.
He then said that the additional documents were written by himself and that the “previous one” was written by the agent.
When asked if he was saying that the 2016 protection visa application was written by the agent, he said:
I wrote the supporting claims, for the previous one I don’t know if that’s the agent.
When he was asked if he did or did not write the claims in the protection visa application, he said:
I did not write anything in 2014 but in 2016 I wrote the supporting claims.
When asked if the information in the protection visa application in 2016 was correct, he said “yes.”
When asked if there was any part of the information he provided in his 2016 protection visa application that was not correct, he said “no, I only submitted supporting claim.”
When again asked if all the information in the 2016 protection visa application was correct, he said “yes.”
When asked what the recent submissions were about, he said “that’s supporting claim.”
When asked if all the information in the written submission he provided to the Tribunal on 28 September 2020 was correct, he said “yes.”
When asked if he attended an interview with the Department about his protection visa claims, he said “yes I went there.”
When asked if he attended an interview with the Department to discuss his protection visa claims, he said:
yes, I went there. However when they ask me some question, my answers were different so I went home.
When asked what the date of his interview was, he said:
I cannot remember exactly, that was in the room in around 2017.
When asked how long the interview went for, he said “around 10–20 minutes, it’s not long.”
When it was put to him that he had a reasonably short interview with the delegate he said “yes.”
When asked if he remembered what he told the delegate about his protection claims at the time, he said:
They talk about my family situation, and the question that I answer is not consistent, I cannot remember exactly.
When asked what the answer was that was not consistent, he said:
For example they asked me where I lived and where I worked and what is parents worth and my answer is not consistent. They said that the material I had wrote is inconsistent with what I wrote in Australia. Then they did not continue to ask me any questions and they let me go.
When again asked whether he did an interview with the delegate about his protection visa claims, he said “Yes, I attended.”
When asked if he remembered what his 2016 protection visa claims were, he said “I don’t know.” He then said that the agent wrote his 2016 protection visa claims.
When again asked to confirm that he did not know what he said in his 2016 protection visa application, he said “that’s right, I don’t know.”
When it was put to him that there could be any information in his 2016 protection visa application and he would not know what it is, he said “that’s right.”
When it was put to him that he had told the Tribunal in the hearing that all of the information in the 2016 protection visa application was true and correct, he said:
What I mean is that the date of submission is correct but when the previous agent help me write something, or do something, the agent did not show to me and my English is not good and everything is in English so I don’t know.
When asked if he put his signature on the protection visa application in 2016, together with the typed statement that he provided, he said:
In 2016 the material was prepared by the agent and because I did not know that and then I attended the interview, and later they ask me for a long time and then I went back, and later I was not satisfied with the agent, and then I prepared my own supporting documents and had them translated and then submitted.
When asked why he did not provide the material earlier and why he provided it just before the hearing, he said:
I did not understand, I ask agent and the agent ask me to wait, and there is no result, that’s why it’s been postponed and been delayed until now.
When the Tribunal put to the applicant that he appeared to be referring to the agent whose name he could not recall, he said:
In 2014 that’s another agent, and when my student visas was about to be cancelled I approached another agent and I used the agent until now.
When it was put to him that he had not named any particular agent, he said he did not know the name of the company, but he knew the name of the agent was “[name]” but that people call him “[another name].”
The Tribunal then asked the applicant about his marriage. The applicant then said that he had been married but in 2018 got divorced. He said that his ex-wife is in China but she never came to Australia. He said that he has two children, a boy and a girl, who are in China. He indicated that he has contact with his ex-wife and children and that he financially supports his ex-wife and children. He said he divorced his wife because she did not believe in Christianity and she could not “mingle” with his parents who are Christian. He said he is not in a relationship with anyone in Australia.
At the resumption of the hearing, the Tribunal spoke to the applicant about his protection visa application from 2014. The Tribunal put to the applicant that, while the Tribunal had not made up its mind, the Tribunal may have concerns about whether the applicant had given credible information to the Tribunal. The Tribunal put to the applicant that on a number of occasions he had told the Tribunal that he had not submitted a protection visa application in 2014 but then he changed his evidence to give ambiguous answers as to whether or not he submitted a protection visa application in 2014. The Tribunal put to the applicant that it did have in its possession a copy of the applicant’s protection visa application from 2014. The Tribunal noted that there was quite a lot of information about the applicant in the 2014 application. The Tribunal noted that the applicant had previously said in the hearing that he could not recall the name of his agent. The Tribunal noted from the form that the agent was a person by the name of [Mr A] in [Suburb 1], NSW. The Tribunal noted that the Department received the protection visa application on 24 March 2014. The Tribunal noted that the protection claims made in 2014 were not the same as the 2016 claims. However, the Tribunal noted that previously in the hearing the Tribunal only discussed whether or not the applicant had made a protection visa application in 2014, and not the content of the 2014 claims. The Tribunal put to the applicant that while initially he said he did not go to the Department in 2014, he subsequently told the Tribunal he did go the Department in 2014. The Tribunal put to the applicant its potential concern that he appeared to go back and forth about whether he did or did not submit a protection visa application in 2014.
When asked if there was anything he wanted to say about the protection visa application he submitted in 2014, the applicant said that in 2014 he did apply for a protection visa, but he did not know what the contents of the protection visa application were because he did not see the application himself. He said the application was in English, which he did not understand. He said he went to the Department but he was not sure what was written in the application. He said he did not know what was written in the application, or the purpose or reasoning of the visa application.
The Tribunal put to the applicant that it may not accept that the applicant was giving the Tribunal a credible explanation. In response he said he was telling the truth and that he simply went to the agent to get a visa to allow him to stay in Australia. The Tribunal put to the applicant that, at the time in 2014, the applicant was already on a student visa and was in Australia lawfully. He said he paid the money to the migration agent to help him to apply for the protection visa in 2014. When asked why he applied for a protection visa in 2014, he said he was on a student visa but he was working instead, and so his friend told him he could extend his visa to allow him to continue to work in Australia. When the Tribunal put to him that he was indicating that he was not looking for protection, but instead he was just looking to stay in Australia to work, the applicant said:
Yes that was the actual situation because I did not know the process about the protection visa. I only told them I would like to legal stay in Australia and they told me I did not need to care about the rest.
The applicant said that, as part of the protection visa application process, the agent told him he needed to do a body check.
The Tribunal put to the applicant that he had indicated that in 2014 he went to see an agent to assist him to apply for a protection visa, and that he attended the Department as part of that process. In response, the applicant said he did not know what type of visa he was applying for in 2014. He said that on 8 April 2014, he had the “body check” but that he thought he was applying for a visa to “protect” his ability to stay in Australia and work. The applicant then said that he did not know what it meant when he was told the word “protection.” He repeated that he did not know the details of the application and he did not know what the visa was. When asked if he was telling the truth about what happened, he said “yes this is what happened.” He said he did not know that a protection visa was a “refugee visa.”
When asked if any of the information in the 2014 application was correct, he said:
I do not know the full contents of the application. I was not aware that it was a visa for refugee because I believe I am not a refugee. I was not explained about that. I only know I was applying for a visa.
When asked if he was saying that he did not know what his claims were at all in 2014, he said:
Yes I would like to ask the Member to understand that I did not understand what was entailed in the visa because I came for a short period of time and I did not understand that contents and it was not explained to me. Even if it were explained I would not have understood.
When asked if he knew how to write in English he said:
I don’t know English and I don’t know how to write it.
When the Tribunal put to the applicant that if there was handwriting in his 2014 application, it was not from him, the applicant said he did not handwrite in the application, he only signed it. He said he did not know how to write English.
The applicant then spoke about his [Occupation 1] service and said [this] service went from 2009 to 2013.
When asked if he was in a relationship with anyone in Australia in 2014, he said no.
When asked why he withdrew the protection visa application in 2014, he said at that time he was on a student visa and he was not “very far” in the visa application process. He said another person told him he should not apply for the protection visa so he withdrew the application. He said he was told the protection visa was “not good for me.” When asked what he meant when he said it was “not good” for him he said he was told that as a student if he applied for a protection visa it would not be good for him and his children in the future. He said that as to the details as to why he should not apply for the protection visa, he was not certain. He said that he felt the protection visa is “not good.” When asked why he thought the protection visa application in 2014 was “not good” he said he heard from “someone” that the protection visa was for refugees who lost their homes because of war, and so he decided that he should not be applying for that visa. He said that in terms of what was “not good” about the protection visa he did not know. The Tribunal put to the applicant that his answers were coming across as vague. In response, the applicant said there were some questions he did not know how to answer. The applicant said that while he did not think he was a refugee before, he thinks he is a refugee now. He said that when he first applied for the protection visa he just wanted to stay in Australia safely and legally, but when he heard the protection visa was not good and the student visa was better he immediately withdrew the protection visa application.
When asked if he knew any of the protection claims made in 2014, he said “that’s correct.”
The Tribunal then put information to the applicant in accordance with s.424AA of the Act. As part of this process, the Tribunal explained to the applicant that there was a typed document in English in the 2014 application. The Tribunal asked the applicant if his signature was on the 2014 typed document, but he said that he did not sign the typed document and he only signed an empty form with no content on the form, but he did recall signing the document.
The Tribunal then read out what appeared to be the applicant’s 2014 claims with his signature on the document, where he said:
My name is [applicant name], Male, born in a village of Luohe City, Henan Province on [date]. I graduated from [a] School in July 2008. In October 2005 1 married my wife (We got our marriage registered in 2010 afterwards). One year after our first child was born, my wife was pregnant again. I was working as a [Occupation 1] when she was pregnant for four months. I did not expect a disaster was going to happen to us. On one day, under the circumstance that I was not at home, the staff of local family planning department forced to take away my wife and did abortion for my wife. I did not know it until three days later. At that time I could not accept this fact, because it was a fresh life! And it was a boy. In China boys represent continuance of generations. The local government not only did forced abortion to my wife, but also imposed a penalty on me. Under that situation I had already lost my sensibility, so that I had oral and physical conflicts with the government staff. Their behaviours were illegal and targeted. That was because before that I had already completed all procedures of giving birth to a second child and paid the relevant fees. However, they did not issue a birth permit to me yet. When I inquired about the permit afterwards, they told me the person in charge was transferred from the department. I felt I suffered from injustice. I suddenly realized the government is dark and corrupt. They did not really protect their citizens well.
I did not accept to pay the penalty to the family planning department. Then they notified the local police and the police arrested me. During the time I was in detention centre, the staff of family planning department intimidated and mistreated me. They also ask the police to force me to discontinue my appeal and struggle. I was scared at that time, so I withdrew the appeal and also paid the penalty. Then I was discharged from the detention centre. When they knew that I was a [Occupation 1], they visited the law enforcement department and [my employer] and persuaded them to lay me off.
Besides that, I also experienced a cruel event in person. [Details of a fatal workplace accident deleted]. It shows how cruel and inhuman Chinese government is.
The similar things of what I have heard are far more than what is described above. I feel hopeless to China, with only disappointment and fear left. I really want to get rid of the place and the country. I tried a lot of ways and finally came to Australia. I like Australia very much as it is a fair, harmonious and peaceful country. I want to stay here forever as I do not dare to go back to China again. Because the unfair and horrible things I have experienced before, I am full of fear for China. Therefore, I sincerely hope Australia can accept me.
The Tribunal noted that the applicant’s wife’s name was the same name on the divorce certificate (that he provided to the Tribunal) as was mentioned in the 2014 protection visa application.
The Tribunal put to the applicant that he had told the Tribunal that he did not know anything at all about the protection claims made in the 2014 protection visa application.
The Tribunal put to the applicant that the Tribunal had in its possession a case note made by the Departmental official, [name deleted], who recorded a case note dated 15 April 2014. The Tribunal put to the applicant that the case note said:
Applicant attended counter for biometrics collection (TIS [#]). Applicant confirmed that they have applied for a protection visa and was able to provide specifics about the events recorded in their claims (Tribunal emphasis).
When the applicant was asked did they received any assistance with their application, he stated that his migration agent assisted with the form. I advised applicant that there is no agent stated in his PV application. I asked the name of his agent. He s[t]ated his name is [Mr A].
I advised him to speak to his agent and complete form 956 and send it to us as soon as possible.
After Biometrics were taken, applicant contacted his agent. I spoke to the agent and advised him that applicant is claiming that he is the agent. [Mr A] confirmed that he is not the agent for this client and merely assisted him in lodging PV application (Tribunal emphasis). I advised applicant of the same and advised him that there IS no migration agent for him and he needs to clarify the matter with him.
There is no migration agent for this client as stated in PV application.
The Tribunal put to the applicant that the case note indicated that the applicant reasonably knew he had a discussion with the Departmental official about the protection visa, and that the applicant was able to speak with the Departmental official about the specific events he had made in his protection visa application. The Tribunal put to the applicant that this information may not be consistent with what the applicant had told the Tribunal, that he did not know what visa he was applying for and he did not know what was said in the 2014 protection claims. The Tribunal put to the applicant that, subject to his response, the Tribunal may find that he has not given credible information to the Tribunal in this respect. The applicant was granted additional time to respond. After the adjournment, the applicant said in response that his ex-wife did not go through an abortion. He said he was not penalised or arrested by police. He said the story in his 2014 claims was not true but he was working as a [Occupation 1]. He said that the [workplace incident] was not true and was made up. He said that the reason given in the 2014 claims about why he came to Australia was not true. He said that his agent asked him to provide his personal and family information, but the story was not provided by him and was made up by the agent. He said that regarding his conversation with the Departmental staff member, he said that he did speak to the Departmental staff member about the protection visa but he did not know the details of what “protection” means. He said that because it has been a long time he may not remember clearly what he said in 2014.

100. The Tribunal put to the applicant that in the hearing, the applicant had told the Tribunal that at one point he said that all of the information in the 2016 protection visa application was correct and that in 2016 the applicant wrote what he called the “supporting claims.” The Tribunal put to him that he specifically told the Tribunal that there was no part of the information in the 2016 application that was not correct. The Tribunal put to him that when the Tribunal asked the applicant if he knew what he said in the 2016 protection claims, he said “I don’t know.” The Tribunal put to him that the applicant said that there could be information in his 2016 application, and he would not know what it was. The Tribunal put to him that the concern was that there appear to be widely different claims being put forward to the Tribunal, whether they be from 2014 or 2016 or at the present time. The Tribunal put to him that the Tribunal was happy to go through what the 2016 claims said. The Tribunal put to him that, as part of the 2016 application, there was yet again another typed statement, this one dated 11 August 2016 stating as follows:

Statement in Support of my Protection Visa Application
My name is [applicant name], born on [date] in Luohe, Henan Province, China. I arrived in Australia on [date] November 2013, holding a student visa. Since then I have been living in Australia.
Recently my parents informed me that they had been persecuted by the government there in China after refusing to move, because my parents believed that the relocation compensation offered by the government is not enough.
My parents inherited their house from my father's parents. My family had been living in the house for the whole of our life. Early this year (2016) my parents were served with a notice that the local government was planning to build a new railway station where our building stood.
My parents had initially agreed to sell the property and accepted the compensation. But my parents later found out the compensation is far less than what the land was worth. My parents started to negotiate with the local government for a proper compensation price. My parents' demand was never met. My parents stated that they own the land and my parents could not be forced to move away if they did not agree to. As a result, my parents were left stranded on their tiny land, while all around them the ground was dup up and constructions erected. The utilities to our home were cut off by the local developer. Furthermore our parents were regularly threatened by gangsters sent by the developers and had to fend over a number of attempts to illegally demolish our home. Finally against my parents' will, they were forced to move. Now my parents are left homeless, and have not received any compensation payments.
After I learned what happened to my parents and my home in China, I wanted to go back to my parents to help them. But my parents warned me that I mustn't return to China, otherwise I will suffer from persecution too.
Due to that my parents have been persecuted by the local government in my home country. I am not willing to return to China to face the persecution just like my parents were, and wish to apply to stay in Australia permanently.

101. The Tribunal put to the applicant that in the hearing the applicant was adamant that he attended the interview with the Department about his 2016 protection visa application. The Tribunal put to the applicant that in the hearing he said the departmental interview was in 2017. The Tribunal put to the applicant that in the hearing he told the Tribunal that the interview went for about 20 minutes, and that he had spoken with the delegate about his protection claims.
102. The Tribunal then put information to the applicant in accordance with s.424AA of the Act. The Tribunal put to the applicant that the delegate in his decision dated 2 February 2017 stated:
The applicant did not attend a Protection visa interview scheduled for 02/02/2017 at the Department of Immigration and Border Protection office at 26 Lee Street, Sydney NSW (Tribunal emphasis). The applicant was correctly notified of the scheduled interview by email on 19/01/2017. The Departmental record and the applicant's Protection visa application shows that the email address for service (f20) was current at the time and the same channel was used for the biometrics checks which the applicant duly attended.
The interview invitation letter advised the applicant that if he was unable to attend the interview he should contact the department to make other arrangements. It also advised that if he did not attend the interview his Protection visa application may be decided without any further delay, based on the information already held at that time. The applicant did not attend the interview and no reason was provided for his non-attendance (Tribunal emphasis). As the applicant did not attend the interview his application for a Protection visa has been determined on the information provided in his application form.

103. The Tribunal then put information to the applicant that it appeared that he had not given credible information to the Tribunal about his alleged attendance at the Departmental interview in 2017. The applicant was granted additional time to respond. After the adjournment, the applicant said in response that the material was prepared with the support of a lawyer. He said that in the hearing he did not say that the details of the 2016 application were correct and in fact he did not know the details in the 2016 application. The applicant said that personal information in his 2016 application was correct, but the information in the 2016 statement was “made up” and he had “no idea” about it. He said that his home has not been evacuated and he did not have any conflicts with the police or government officials as a result of this matter. He said that his lawyer “made up” the story in the 2016 statement, but that the real story was what he had told to the Tribunal. He said that he suspected that the lawyer who helped with his application in 2016 was not a proper lawyer or registered agent. He said that he thought what his lawyer had done was irresponsible and that was why he submitted other claims at the hearing. He said that, in respect to the interview, he was not notified about the interview and that was why he did not attend. He said he was not responsible for his non-attendance at the interview. He said that he had since found out that his lawyer was not a proper lawyer and he was the victim of a scam by the alleged lawyer. He said that he had sought help from his church elders and he has found out the location of the lawyer who scammed him, but he could not find the lawyer who scammed him.
104. The Tribunal then put information to the applicant that in the hearing and his written submissions to the Tribunal he claimed, in considerable detail, that he did military service in China. The Tribunal then put information to the applicant that in his response to question 27 in the 2016 protection visa application “have you undertaken military service?” he ticked “no”. The Tribunal put to the applicant that the Tribunal may find that the applicant had provided inconsistent information to the Tribunal about his claims of military service, and had therefore not given credible information about his claims of military service or any of his claims connected to his claim of military service. In response, the applicant said that he was part of the “armed police” in China. He said that the “armed police” was not part of the military in China. He said that when he was in the “armed police force” he also received “disciplinary action” which meant that after his two years of training he returned home and did not receive further training. He said he did not receive any “special military training” and he only received “general training.”
105. The Tribunal then put information to the applicant that on page 3 of part B of his protection visa application from 2016 about “character,” he was expressly asked whether he had “served in a military force, police force, state sponsored/private militia, intelligence agency (including secret police)?” and in response he ticked “no.” The Tribunal put to the applicant that the Tribunal may find that the applicant had provided inconsistent information to the Tribunal about his claims of being involved with the Chinese military or the Chinese police of any kind, and had therefore not given credible information about his claims of military or police service or any of his claims connected to his claim of military or police service. In response, the applicant said that he did not understand English and about whether he had joined any of “these forces.” He said there must be a misunderstanding and that his lawyer must have completed the form without his understanding. He said that even if the form had been explained to him, he would not have understood what he had signed or ticked, or the lawyer may not have even asked him about this issue, or he did not understand what the form “entailed.” The Tribunal put to the applicant that on the protection form there was a declaration which the applicant had appeared to have signed which declared that all of the information in the form was complete, correct and up-to-date in every detail. In response, he said he was only asked to sign the form and he did not understand the information in the form. The Tribunal put to the applicant that this was the second protection visa application in which the applicant had been involved. In response, the applicant said “Yes I know.”
106. The Tribunal put to the applicant that the part of the 2016 protection visa application about religion (question 33) was blank. The Tribunal put to the applicant that in his 2016 claims there was no claim about religion or Christianity. The Tribunal put to the applicant that he had signed the declaration that the information in the 2016 protection visa application was complete, correct and up-to-date in every detail, and it was the second time he had submitted a protection visa application, he had not made any reference to claims about religion, and therefore the Tribunal may find that the applicant has not made credible claims in respect to Christianity or any potential persecution because of his claimed Christian faith. In response, the applicant said he was not very educated and his English skills were a major challenge. He said he often trusted professionals and he paid them money and then they will help him do what is needed. He said he had told the church elders about what had happened.
107. The Tribunal referred the applicant to the baptism photos and the supporting letter dated 29 September 2020 from “The Local Church in Sydney” that the applicant provided to the Tribunal. The Tribunal put to the applicant that it acknowledged that the applicant has given evidence to the Tribunal about his church activities in Australia. The Tribunal put to the applicant that the letter notes that the applicant had been meeting at the church since [date] July 2020. In response, the applicant said that the individuals who signed the letter ([Mr B] and [Mr C]) could tell the Tribunal about his Christian faith over the last few months of 2020. The Tribunal put to the applicant that the Tribunal was prepared to accept that the applicant had been involved in church activities in 2020. However, the applicant asked the Tribunal to speak to witnesses about his religious activities in 2020.
108. The Tribunal spoke to the applicant about the DFAT Country Information Report for China dated 3 October 2019. The Tribunal put to the applicant that the information in the DFAT report indicated that there was low risk to people belonging to a “local church” or “shouters” at the present time. In response, the applicant said his religion is not acknowledged by the local government. He said he belonged to the “family church.” He said his parents are Christian and they worship at each other’s houses. The Tribunal referred to the DFAT report at paragraph 3.83 that states:
DFAT assesses members of unregistered churches who participate in human rights activism are at high risk of official discrimination and violence, as are their families (see Political Opinion (actual or Imputed). DFAT assesses the adverse attention relates to their activism and association with unregistered (and illegal) organisations, rather than specifically to their Christian faith.

109. The Tribunal put to the applicant that because at no time had he indicated that he had participated in human rights activism, the Tribunal may find that the applicant would not face a high risk of official discrimination and violence should he go to China in the foreseeable future. In response, he said that because his church was a family church or an underground church or local church, and if his neighbours reported him to the local police, that the local police force may force them to close down.
110. The Tribunal spoke to the applicant about his submission about COVID-19. When asked what he wanted the Tribunal to consider about this submission, he said he had a friend he spoke to. He said he told his friend about him converting to Christianity, and his friend told him about the restrictions in China due to religion and his friend told his parents he converted to Christianity and because of this his friend was arrested. He said this was unfair and unjust. He said that regarding the situation with the doctor that died in Wuhan, that because family churches had prayed for that doctor, the churches were labelled as evil cults. The applicant said that he felt that there were no human rights.
111. The representative then made an oral submission that he wanted the Tribunal to speak to the witnesses.
112. At the resumed hearing on 2 November 2020, the Tribunal spoke to [Mr B], [Mr D] and [Mr E]. Mr [B] said that the applicant was a very simple and pure person, and that the reason he joined the local church was purely because he wants to serve Jesus. [Mr D] said the applicant was a brother in the local church, and that he is an honest person who loves God. Mr [Mr E] said that the applicant was honest, and he admired the way the applicant serves God.
113. The Tribunal noted that on 1 November 2020 the applicant’s representative provided copies of the applicant’s tax returns as well as favourable character references from [names deleted]. However, the Tribunal notes that the three letters did not provide information that substantially related to the applicant’s claims for protection.
114. There were no other witnesses that the applicant wanted the Tribunal to speak to.
115. The applicant went on to say that his previous representatives were very unprofessional and attributed responsibility for his untruthful protection claims to those people. The applicant wanted the Tribunal not to consider his previous protection claims and only consider his current claims to the Tribunal. He said he was being very honest right now because he was a good Christian.
116. The applicant then mentioned that in his home town in China in the 1990s there was something huge that happened that made the news at the time, because of blood donations and people acquiring AIDS. The Tribunal asked if he was advancing new claims to the Tribunal, and the applicant said he was not advancing new claims. Rather, the applicant went on to suggest that he saw similarities between AIDS patients and himself because he, the applicant, had also been a victim of lies. He said he did not have AIDS.
117. The applicant confirmed that there were no other claims that he wanted to raise. Then the applicant went on to indicate that he went to a Federal Court hearing with his previous representative who got him to answer questions in court, and he later realised the hearing had nothing to do with him but rather he was giving evidence to the court, by saying the word “yes” when he was prompted, using another person’s identity. He said that he did not understand what was going on and he did not understand the questions.
118. After the hearing, the applicant’s representative gave the following submission:
Dear Rev. AAT Review Officer (The Member of AAT)
1.       I first of all would thank AAT Review Officer’s dedication into my appeal and after 3 consecutive days of hearing, I truly appreciate your professionalism and I am grateful for your work. On yesterday (2 November 2020) the hearing raised a few questions particularly about how my last two applications had been unsuccessful and the record of my appeal on FCC (Federal Circuit Court) in 2017 which was only raised up yesterday. All these questions caused me a lot of mental disturbances, and I found it was difficult to calm down when thinking about these issues, I lost sleep. For this reason, I would like to make a brief summary about the explanations I made during hearings in order to get the Review Officer clearer views about my thoughts.
2.       About my first protection visa application: In fact when I look for an agent the first time, all I wanted was a visa. Because I only came to Australia for a short time, no local legal knowledge, that agency [didn’t] explain to me what a protection visa was all about, they were only interested in getting my money, so they made up stories to lodge a protection visa application. They wrote a story, but I didn’t know what they wrote, no one told me about what they had written. I had no idea at all about protection visa application, and my concept about refugee was totally incorrect. It was one of my friends who lived in Australia for long time and also from my hometown explained to me, then I suddenly understood ( because this visa was very bad for my future and also it was not factual), therefore I went back to this agent and asked them to withdraw my application.
3.       About my 2nd protection visa application: This time I was again introduced to a so called lawyer whose surname is [Mr F]. At the time I didn’t know if he was really a lawyer, neither could I verify his identity, so I just believed him. The purpose of lodging the application this time was to get a protection visa because a few people from my hometown applied it and their circumstances were similar to mine, so I decided to apply too. In addition, I heard that after lodging the application, I could get a bridging visa so that I could legally work and live here. I didn’t want to live an unsettled life without visa in constant fear of being found out. But this “lawyer” [Mr F] didn’t explain to me what was a protection visa or definition of refugee; neither did he tell me what he wrote for me. He only asked me a few questions about my personal background such as my home address in China, family information, occupation etc, I then just paid him the fees, and he ensured me everything leave to him to handle. My interview with him was finished in less than half an hour. He asked me to sign on a form, but I don’t understand English, he didn’t explain what was on the form. If you found what I am claiming now is different from what was written on the form, please take my current statement as the accurate version because the current ones are my true circumstances. I found problem with this “Lawyer” [Mr F], I couldn’t trust him as he was irresponsible. He never rang me to inform me about my application progress. Whenever he rang, he was just chasing for more fees, so I was very unhappy with him. In fact, all claims made in my original statement are not true. The only correct and true information are my home address, family members, occupation etc. the basic personal information are correct, but all the other content in the application are false, they were made up by [Mr F].
4.       Truth about the FCC Appeal in 2017: The Review Officer mentioned yesterday: there is a record that I appealed once in 2017. I recollected my memory and communicated with my current migration agent, I can affirm you that that court hearing was organised under [Mr F]’s instruction. I replied the question at court ‘Yes’ because it was [Mr F]’s instruction to say ‘Yes’. In fact I didn’t even understand what questions were asked, neither did I know who was the person asked me the questions; nobody explained these things to me. That fake lawyer [Mr F] was sitting right next to me, all my actions were controlled by him. At the court, I found [Mr F] mixed up my name with another person who was really lodging an appeal. Although we had a same name, but we had different date of birth (This detail was explained to you yesterday during our hearing). But after I clearly told [Mr F] he mixed up us in error, he insisted I did according to his instructions, i.e asked me to replace that person who was actually appealing to the court. He shrugged and said to me: “It doesn’t matter. Don’t worry. You just listen to me’. He also instructed me that for any questions asked by the court, I just answer: “Yes”. So this is why I just followed his instructions to answer “Yes”. I truly didn’t understand law, nor English, didn’t know the seriousness of these answers. Because I entrusted [Mr F] to do my application, he took me to the court for a hearing, I thought it was natural. But I was at shock to learn the names of appellants were mixed up, I was not at the position to refuse his request and that I had to follow his instructions. As for me, I thought I spent money to entrust him to do application, I had to believe him. As he claimed he knew about law, if he said he could do, there certainly had plausible reasons. I am very regretful now. If I insisted my point of view not to come to court, at least, in this case, there would not have a record of me appearing in court.

5.       Now I finally realised [Mr F] is a liar. He had a daring to get someone in court in replacement, this is totally against his professional ethics, not what a lawyer supposed to do. This incidence shows he despised law, not follow the regulations. Through my observations, he is very irresponsible, his office is a mess, all documents are everywhere, never did he show me his qualification certificate as a lawyer, he shared an office with other people, and some of them are actually sell things. It is very different from my current migration agent who has a stable office and licence for registration. He is far from my current agent in every aspect of work i.e professionalism, legal awareness, responsibility and working ethics etc. Therefore I decided to terminate [Mr F]’s service with my case. I wrote a supplementary statement in Chinese and get it translated into English, then present to AAT. The purpose is to truthfully state my background and initial reasons of my application.
6.       About agents I used during the process of applying for a protection visa: Elders in my church and my current migration agent are very sympathetic towards my unfortunate experiences in this process, they wish I could tell full truth to AAT, also advised me make efforts to prove my belief and character, cooperating with their investigations. It was under enlightenment of my church and agent, so on my second hearing, I tried very hard to recollect those two agents I experienced. (i.e the first one is [Agent 1]; the second one is the fake lawyer [Mr F]) In fact the first two failed applications I lodged were all done in my personal names, no agents names, therefore no matter it is [Agent 1], or the fake lawyer [Mr F], none of them are my agents. The agents I authorised formally are just two: one was the agency in China for my student visa application and my current agent Mr. [G], MARA:[deleted].
7.       Words from bottom of my heart: The above is the expatiation I made to you Review Officer based on my true personal background. I raised an example to you during our hearing yesterday: I attempted to show you just how helpless I have been by saying an Aids patient in my hometown Henan, that how Aids patients are wronged and endure discriminations. I sincerely wish you would give a thorough understanding of my circumstances, forgive all the bad consequences because of my ignorance at the beginning and easily trusted others. Because of my poor English, in a strange new country like Australia, I have to rely on other's help. I have never been lucky, didn't get good people to help me. But from aspects of my Christian belief, it embedded with the wisdom of God. I believe my life in God's plan, the curves and hardships are God's test and experience, God made me to rely on Him, believe in Him, not humans in this rocky road of following Him. I was seduced, failed and fell in this world, but because of my sin and regrets, God raises me up in His grace to save me and make me alive. After considerations, I now believe more in Jesus, cherish my church and belief. I hope Australia gives me a chance, let me, a local church disciple to find a spiritual home, to get away from the Communists persecutions to reward God's grace. I will use my talents to make contribution to my church and thank Australian society. For this reason, all members of my church are praying for me, begging God to leave justice and fairness in the hand of Review Officer, let me testify my belief. Arman!

Analysis and findings
119. The Tribunal has carefully considered and balanced the evidence before it in making its findings. The Tribunal is deeply concerned about the applicant’s credibility and whether the applicant has given credible evidence to the Tribunal.
120. As can be seen above, there is a significant number of concerning issues, as well as apparently conflicting and inconsistent information about the applicant’s circumstances.
121. The applicant’s evidence to the Tribunal about his 2014 protection visa application is greatly concerning. The Tribunal finds that the applicant:
a)denied that he ever applied for protection prior to 2016,
b)denied that he went to the Department to speak about his protection visa application in 2014,
c)was vague and evasive in his responses about his 2014 protection visa application,
d)subsequently admitted that in 2014 he did make an application for a protection visa and that he went to the Department in respect to this application.

122. The Tribunal is not satisfied by the applicant’s explanation that he did not know what was written in the 2014 protection visa application, or the purpose or reasoning of the visa application. The Tribunal does accept the applicant’s admission that in 2014 he was not a refugee and he was not looking for protection, but instead he was just looking to stay in Australia to work. The Tribunal is not satisfied by the applicant’s explanation that he thought the protection visa was simply a visa to “protect” his ability to just stay in Australia and work.
123. The Tribunal is not satisfied by the applicant’s explanation that he did not know what the contents of the 2014 protection visa application were. The Tribunal does accept that the applicant attended the Department on 15 April 2014 and, at that time, the applicant confirmed that he had applied for a protection visa and was able to provide specifics about the events recorded in his claims. The Tribunal is not satisfied that the applicant’s agent, [Mr A], wrote the claims and that the applicant did not know what was written in the 2014 application.
124. The Tribunal accepts the applicant’s admissions that the 2014 protection claims are not true, but does accept that he has worked as a [Occupation 1]. In considering the totality of the evidence before the Tribunal, the Tribunal finds that the applicant’s protection claims that he made in 2014 were not credible. Accordingly, the Tribunal does not accept:
a) the applicant’s wife had an abortion;
b) the local government forced the applicant’s wife to have an abortion;
c) the local government imposed a penalty on the applicant;
d) the applicant was targeted by the local government;
e) the applicant was arrested by the local police;
f) the applicant was detained;
g) family planning department intimidated and mistreated the applicant;
h) the police forced the applicant to discontinue his appeal;
i) the authorities took any action to cause the applicant to lose his employment; or
j) the applicant was witness to, or involved in, [a fatal workplace incident in 2010].

125. Overall, the Tribunal does not accept any of the protection claims made in the 2014 application. The Tribunal finds that the applicant did not give credible information in this respect.
126. The applicant’s evidence to the Tribunal about his 2016 protection visa application is also greatly concerning. The Tribunal is not satisfied by the applicant’s explanation that he attended an interview with the delegate in respect to his 2016 protection claims. Rather, the Tribunal accepts that the applicant did not attend the interview with the delegate in respect to his 2016 protection claims. The Tribunal finds that the applicant did not give credible information in this respect.
127. The Tribunal is not satisfied by the applicant’s explanation that he did not know what his claims were in his 2016 protection visa application. The Tribunal is not satisfied that the applicant’s representative at the time was solely responsible for providing false information in respect to the 2016 protection claims. The Tribunal finds that the applicant, despite any apparent language issues, remains ultimately responsible for the information that was in the 2016 protection visa application. The Tribunal finds that by the time the applicant signed the 2016 application, and the declaration that was contained in the application that all of the information in the application was complete, correct and up-to-date in every detail, he had applied for no less than two visas, including the student visa as well as the 2014 protection visa application. Accordingly, the Tribunal finds that the applicant ought to have reasonably been aware of his responsibility to provide correct information in the 2016 protection visa application. The Tribunal’s finding in this respect is reinforced by the applicant’s admission during the hearing that all of the information in the 2016 protection visa application was correct and he wrote what he called the “supporting claims” as part of the 2016 protection visa application.
128. The Tribunal accepts the applicant’s admission that the 2016 claims are “made up” but does not accept that it was the applicant’s representative who “made up” the claims. Based on significant concerns about the applicant’s credibility, the Tribunal finds that it was the applicant who “made up” the 2016 protection claims. Accordingly, the Tribunal does not accept:
a) the applicant’s parents have been persecuted by the Chinese authorities for any reason, including an alleged refusal to move or any alleged disagreement over alleged relocation compensation;
b) the applicant’s parents have been subject to any adverse actions from Chinese authorities or property developers, including alleged threats from gangsters; or
c) the applicant’s parents were forced to move, or that they were left homeless or that they have not received compensation payments.

129. Overall, the Tribunal does not accept any of the protection claims made in the 2016 application. The Tribunal finds that the applicant did not give credible information in this respect.
130. However, the Tribunal has considered whether the applicant did in fact provide some accurate information in his 2016 protection application and has considered the further protection claims made to the Tribunal. The Tribunal has considered the applicant’s claims in respect to his alleged military or police service in China. Given the serious concerns about the applicant’s credibility, the Tribunal has carefully considered these further claims, which were never referred to at all in the previous protection applications in either 2014 or 2016.
131. The Tribunal accepts in his response to question 27 in the 2016 protection visa application “have you undertaken military service?” he ticked “no”. The Tribunal is not satisfied by the applicant’s explanation that he was part of the “armed police” in China, and that the “armed police” was not part of the military in China.
132. The Tribunal accepts that on page 3 of part B of his protection visa application from 2016 about “character,” he was expressly asked whether he had “served in a military force, police force, state sponsored/private militia, intelligence agency (including secret police)?” and in response he ticked “no.” The Tribunal is not satisfied by the applicant’s explanation as to the reason for the inconsistent information that the applicant had provided to the Tribunal about his claims of being involved with the Chinese military or the Chinese police of any kind.
133. The Tribunal finds that the applicant has not provided the Tribunal credible information in respect to his claims of military service or police service or “armed police” service or “military police” service in China. Specifically, the Tribunal does not accept the applicant’s claims that:
a) he joined the Chinese military, or the People’s Liberation Army (PLA), or the “armed police” service or “military police” service in China, or that he did any period of service with any of these organisations;
b) he was posted to a gaol in Gansu Province to guard prisoners;
c) he helped a criminal or that he helped the criminal’s family to make an appeal to the court;
d) he was ever subjected to disciplinary action or had his service terminated by the Chinese military, or the People’s Liberation Army (PLA), or the “armed police” service or “military police” service in China.

134. The Tribunal has considered the applicant’s claim that he is a Christian and that he has had involvement with the local church in Sydney. The Tribunal accepts that the applicant has professed to belong to the Christian faith and he has had involvement with the local church in Sydney. However, the Tribunal has considered the information in the DFAT Country Information Report for China dated 3 October 2019 at paragraph 3.83 that states:
DFAT assesses members of unregistered churches who participate in human rights activism are at high risk of official discrimination and violence, as are their families (see Political Opinion (actual or Imputed). DFAT assesses the adverse attention relates to their activism and association with unregistered (and illegal) organisations, rather than specifically to their Christian faith.

135. In consideration of the information available to the Tribunal, the Tribunal finds that because the applicant has not participated in human rights activism, the applicant would not face a high risk of official discrimination and violence should he go to China in the foreseeable future. The Tribunal finds that there may be a low risk to the applicant should he go to China in the foreseeable future, being a member of the local church, or family church or underground church at the present time.
136. In consideration of any claims in respect to his alleged attendance at a Federal Court hearing to give evidence using another person’s identity, given the serious concerns about the applicant’s credibility, the Tribunal does not accept that the applicant has given credible evidence in this respect and does not accept that he attended at a Federal Court hearing to give evidence using another person’s identity, or any other circumstances connected with this allegation.
137. In considering the totality of the evidence, the Tribunal finds that, 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).
138. 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).
139. 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 any of the criteria in s.36(2).
DECISION
140. The Tribunal affirms the decision not to grant the applicant a protection visa.
Joseph Lindsay
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.
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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.
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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.
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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.
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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.
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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.
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36     Protection visas – criteria provided for by this Act
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(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.
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[2021] AATA 2876

24 May 2021

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