1710337 (Refugee)

[2023] AATA 3817

1710337 (Refugee) [2023] AATA 3817 (21 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Ziting Lei (MARN: 1572416)

CASE NUMBER:  1710337

COUNTRY OF REFERENCE:                   China

MEMBER:Angela Cranston

DATE:21 August 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 21 August 2023 at 11:59am

CATCHWORDS

REFUGEE – protection visa – China – imputed political opinion – business debts – physical assault – fear of debt collectors – business restrictions and corruption – detention – harassment by criminal gangs – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 19 April 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of China, applied for the visa on 20 October 2016. In his protection visa application, the applicant stated that he was the [Manager 1] of [Business 1] from April 2011 to August 2011 and that from August 2011 to the date of application he was unemployed. He also stated the following:

I come from Liaoning province of China. I bought a [property 1] which was rich in [resources]. I bought it with [an Official 1] who is a relative of the head of [County 1]. In 2013, the county head and the [Official 1] were impeached due to illegal [practices]. I handled it using my own 'guanxi' and took the rap for them. In 2015, the local government started to build [a project]. The [resources] produced by my [property 1] met the criteria and was permitted to be used by the local government. But the county head was worried that the previous [illegal practices] will stand exposed. Therefore, he prevented the local government from using my products. As a result, I could not continue running the business. And I did not have the ability to repay the loan of [amount] RMB. Consequently, I gave the [properties] as pledge to the creditors. But the debt had not been paid off.
The creditors threatened me and beat me. They stayed by my house all the time. I could not maintain a normal life. My family and I were put into danger. I had the thought of suicide for many times since I really did not have the ability to repay the debt. If I go back to China, they will find me and hurt me again.
The county head threatened me not to supply the [resources] to the local government. The creditors delegated debt collecting company to force me to repay the debt. But the debt collecting company was actually a gangdom. They once put me into a small room and beat me, I got a fever but they refused to give me water. I managed to run away from them finally. Otherwise, I might lose my life.
Yes, I went to Beijing to seek Justice. But I was put into a detention centre. Nobody can help me.
The debt collecting company, which was actually a gangdom, has network all around China. Wherever I go, they will find me and hurt me. Running away from China is my only choice.

1. The Department rejected the visa and the applicant applied for review.

2. The Tribunal wrote to the applicant on 29 October 2020 at his last notified email address advising that it had considered all the material before it relating to his application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a telephone hearing on 18 November 2020. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice.

3. The applicant’s agent responded on 2 November 2020 asking if it was possible for the applicant to attend a hearing in person. The adviser wrote again on the same day as follows:

Would you please kindly consider to postpone the hearing due to [the applicant] does not feel very well recently.
[The applicant] was brought by an ambulance to [a named] Hospital on [a day in] November 2018 as he was being crushed between a [machines]. He
had abdominal tenderness and lower back pain, his CT abdomen showed
inflammation adjacent to the distal descending colon with a possible small
mesenteri bleed.
He has been attending [Hospital 1] since 2019, and the medical documents can be found at attachments in this email.

1. Also attached were the following:

Discharge of referral notes dated 30 November 2018

Final report for admission dated 26 March 2020

1. The applicant himself also provided the following request for postponement of hearing on 4 November 2020:

   Re: requesting for postponing the hearing scheduled on 18th November 2020

   Thank you very much for your assistance in my case.

   I had suffered serious physical injury [in] November 2018 as I was crushed between [machines]. Other than the physical injury, my mental health was also seriously impacted because of the event. For the purpose of the mental health treatment, I need to attend hospital for mental health consultation and treatment since 2019 on the regular basis.

   The most recent attending was on 3rd November 2020 at [a named health centre]. I was advised that the current medications may not be sufficiently effective. After having issued the new prescription, the doctor also recommended that further observations are required in the upcoming few weeks after the dosage of the new medications.

   I therefore seek AAT's understanding about my special circumstances. Notwithstanding I requested for postponing the hearing for 2 weeks in an earlier correspondence. After having seen the doctor yesterday and considered all relevant circumstances as well as the probability that I will be required to live in the hospital for observation on the day to day basis for some periods, I believe that postponing the hearing to another later date is likely needed. Therefore, would you please kindly advise that if the hearing date can be postponed for at least 8 weeks from the original hearing date.
   Relevant documents regarding the above events have been attached to this request. Your generous assistance in this matter is much appreciated; I look forward to hearing from you.

2. The Tribunal responded, stating that in the absence of any further medical evidence in support of the applicant’s request, the Tribunal intended to proceed with the telephone hearing as scheduled and the Tribunal was advised that the applicant would attend the hearing. And that the applicant had been undertaking mental health treatment since 2019 and his mental health condition was currently under observation.

3. On 11 November 2020 the adviser stated that on 10 November 2020, [Hospital 1] had advised that the applicant needed to commence medical treatment and [later in] November 2020 advised that he had been admitted as an inpatient. Also provided was a final report dated 13 November 2020 and on 16 November 2020, stated it was likely he would still be in hospital on 18 November 2020. 

10.  Also provided was a further statement dated 9 November 2020 from the applicant that stated as follows:

My name is [name], born on [date] in Liaoning Province. I shall herein briefly introduce the course of my lodgement of subclass 866 visa application on 20/10/2016, my history of founding business and being persecuted in China.

Visa application:

I came to Australia with a tourist visa in August 2016, and at that time the validity of tourist visa was only 3 months. Given that my life was threatened in China, I therefore would like to apply for a Protection Visa in Australia, and the details about the threats to my life and safety in China will be discussed later in this statement. When I came to Australia, this country was strange to me and I knew nobody here. I found a migration firm in the Sussex Centre of Chinatown and I met [Representative A] there. He briefly asked me about my circumstances of being persecuted and asked me to provide some documents. Then he advised that I was eligible to apply for a Protection visa according to my situation.
He said that he would help me to apply for this visa, all I needed to do was paying AUD $[amount] in cash, then he would take care of everything for me. [Representative A] did not explain anything to me about this visa. At that time, I did not know any other friends in Australia, let alone how to seek legal advice to protect myself, I therefore had to rely on [Representative A’s] advice.
In May 2017 [Representative A] informed me that 886 visa was refused. He asked me if I wanted to appeal the decision to AAT. I had no choice but to appeal as I would definitely be persecuted if I returned to China. Therefore, [Representative A] continued to help me handle the AAT appeal.
In March 2019, I notified [Representative A] about the renewal of my Medicare card, however, he told me that he no longer worked in this industry. At the same time, I learned that he was not a lawyer and he was also incapable of handling my visa application and AAT appeal, so I found [Business 2] to assist me in continuing AAT appeal. In addition, I have contacted [Representative A] for many times, asking him about the documents and forms previously submitted for visa application, but he was reluctant to provide me with answers.
Then [Business 2] made FOI application for me and I just found that most of the information provided in the application was inconsistent with the facts, and [Representative A] did not provide Department of Home Affairs with any relevant supporting documents. In addition, [Representative A] told me nothing about the interview required by Department of Home Affairs. At that time, I just arrived in Australia and did not know much about local culture, language, society and laws etc. Under this situation, I engaged the wrong person in my visa application, which was the primary reason lead to the refusal of 866 visa.

Business experience:
Before 2011, I mainly worked in the [product 1] industry. I established [Business 3] [in June 2001] with a registered capital of RMB [amount] yuan. The business scope was [product 1] wholesale, retail and processing, please find the business license in attachment A. Unfortunately, the development of [product 1] industry in China kept going down, then I decided to divert to other industry in 2011.
According to my research at that time, sales of [related products] had a good prospect, especially in the context that the construction of houses and highways were strongly advocated by the government. [In August 2011], I purchased [amount] subcontracted land [in Location 2] in [Village 1]. The subcontracting period was from [August 2011] to [specified year] and the subcontracting price was RMB [amount] yuan in total, please see attachment B for more information.

The contracted land was only allowed for [specified operations] at that time. To operate my business, I constantly communicated with the government and successfully got the approval of altering the properties of land use. Accordingly, operations such as [operations 1] was allowed and the sales of [related products] were permitted.
[In September 2011], I reached an agreement with [County 1] [Authority 1], which stipulated that l was permitted to do [operations 1] around the area of highway at [Location 2] in [Village 1], [Town 1]. The area for [operations 1] was about [amount] in total, please see agreement for more details (attachment C). As the [operations 1] went very well, [in November 2012], I contracted for [amount] hectares of land from [name] (the original land contractor), please see attachment D for more information. [In September 2012], I obtained the approval from [County 1] [Authority 1] to continue [operations 1], please see the agreement for details in attachment E. From 2013 to 2016, I was still engaged in the sales of [related products] as well as the operation of my company.

Course of being persecuted:
I knew [Mr A] in around 1993 or 1994 when he was [an Official 1] in [District 1]. Considering the special nature of doing business in China, I had to maintain a good relation with the local government to ensure the ongoing operation of my business. From then on, I had kept a good relationship with [Mr A] We often had meals and played mahjong together. [Mr A’s] brother-in­ law (his sister's husband) is [Mr B], who has great power locally. I started to know [Mr B] in 2012 when he was the head of [County 1]. He became the Party Secretary of [County 1] in 2015. Relying upon [Mr B’s] influence and power, [Mr A] committed a number of wrongdoings in [County 1]. [County 1] is a very small place, to keep my business running, I needed to get [operating license] of my company approved by [County 1] [Authority 1] every year, maintaining a good relationship with them was good for my company. I therefore frequently contacted with [Mr A] and [Mr B].
In May 2012, [Mr A] and [Mr C], the head of [Village 1], [Town 1], [County 1], were reported by local villagers for conspiring to [commit a crime] and sell the mountain for money. [Details deleted.] Because I had the [operating license] [in Location 2] in [Village 1], and the area I [operated] was closely adjacent to the [crime location], I became the most suitable scapegoat in [Mr A’s] mind.
[Mr A] used every possible means to make me become the scapegoat for their offence. I had no choice under his coercion, so I told [County 1] Public Security Bureau that it was me who [committed the crime].
To be honest, I was reluctant to help [Mr A], but I concerned that I may displease his brother-in-law, [Mr B] as I still wanted to continue my business in [County 1]. Therefore, I told [Mr A] that if [Mr B] personally asked me to take the blame and I did not need to go to jail, I would do it.
[Mr B] let his [staff], [named], conveyed his assurance to me that I would not go to jail, but would be fined at most, so I promised [Mr A] that I would take the blame for him.
In April 2013, local people again reported this case to [the named] Public Security Bureau and the bureau questioned me on the illegal process of [the crime] for verification. Under that circumstances, I had no choice but to say that it was me who [committed the crime]. [The named] Public Security Bureau informed me that I had committed a crime and I shall pay bail of RMB [amount] yuan. After the bail was paid, I needed to wait for the result from the prosecution.
In August 2013, [the named] Public Security Bureau prosecuted me in [Court 1] and I was sentenced to [period] (on probation) and fined RMB [amount] yuan.
ln 2014, [Mr A] altered a piece of agricultural land in [a named] Town of [County 1] into an abandoned land through [Authority 1], and then bought it for [selling its] resources. This was reported to the Liaoning Provincial [Authority 2] by local people because his conduct caused serious damage to farmland. Liaoning Provincial [Authority 2], [another agency] and Shenyang Municipal [Authority 2] launched an investigation into this incident in [County 1]. They suspected that my company was actually controlled by [Mr A] and [Mr B], so I was ordered to close it temporarily. At that time, my company was still within the validity of operation. I even bought the advanced [equipment], which were valued at more than RMB [amount] yuan. Because of this incident, my relationship with [Mr A] and [Mr B] changed. I knew too much about their illegal conducts and I even took blame for [Mr A] once. In addition, my business was involved and forced to be closed due to their conducts. I had a quarrel with [Mr A], suspicion and estrangement generated between us. He threatened me that the safety of my family would be at risk if I continued to act against them.
Given that I was only a business person while [he] was [an Official 1] with power, and I knew how he acted when meeting troubles, I was concerned that he was very likely to take revenge on me and my family. To keep my family safe, my wife and I got divorced [in] and I sent my ex-wife to my [child] who lived in [Country 1]. I sold three of my properties and gave all the proceeds from selling to my ex-wife.
In 2015, a turning point occurred in my business. Through my continuous efforts, the [Business 4] of [Corporation 1] expressed their interest of cooperating with my company regarding [a named major] project, which was a key national [project]. Because the [resources] produced by my company met the design and construction standards of [Business 4] of [Corporation 1], so my factory was confirmed to be the designated site for supplying materials to [a named] Section, [of the major project] (please refer to attachment F).
However, my company's exploitation rights still needed the approval from [County 1] [Authority 1]. I particularly obtained the Letter of Intent for Cooperation produced by the [Business 4] of [Corporation 1], hoping it could help to get a quick approval from [County 1] [Authority 1].
My license needed to be approved by the Party Secretary of [County 1]-[Mr B], but he kept finding all kinds of excuses to stall off my request, he also delayed the processing time, complicated the review procedures, and even asked departments at all levels to review all the reports and financial data of my company. Even though he kept finding troubles for me, I remained calm and tried my best to cooperate with their investigation and meet all procedural requirements. However, I got no response from them at last.
[In March 2016], [County 1 Magistrate] [named] promised me that he would process my case, but he needed to organise a meeting to discuss it. Then there was no further response from him anymore. In the middle of 2016, through the Deputy Director of Shenyang [Authority 1], I learned the reason why my company's license has not been approved by [County 1] [Authority 1] for a long time, which was because of [Mr B’s] opposition. Around June or July 2016, I sent report letters to Liaoning Provincial [Authority 2] and Shenyang Municipal [Authority 2] respectively. The content of report letters was the truth about [his crimes] in 2012 and [in 2014] caused by [Mr A] and [Mr B]. My report letters were sent by [courier]. At the same time, I also reported these on the website of [a national authority].
I applied for an Australian tourist visa in early July 2016, because I was concerned of being persecuted by [Mr B] and [Mr A]. I knew how they would act to get out of troubles, if they learned the information and content in my report letters, my life would definitely be at risk. [The named] Deputy Director of [County 1] Public Security, secretly informed me in the evening of 10/08/2016 that he could only hold off them for 3 days, and I must disappear within these days. [Mr B] already ordered '[Authority 2]' to deal with me. I knew how '[Authority 2]' operated very well and I could hardly have a chance to survive if [Mr B] ordered them to deal with me. I asked [Person A] to book a flight to Australia on [website 1] at about 10:00 p.m. on [date]. I transferred at Fuzhou Airport on [date] and I arrived in Australia [in August 2016]. When my life was threatened, I had to leave all my property, relatives, and friends behind and give up business that I had worked so hard for in [County 1] during these years. Now I have asked [Person A] to help me look for the booking records on [website 1]. Since he changed his mobile phone number and this may impact the search of records, we would insist on finding the booking history on the [website 1].
After I left China in August 2016, my wife [Wife A], was frequently questioned and searched by local police officers. Officers from [County 1] Public Security Bureau would directly enter her home during irregular time without a warrant issued by the court. My wife decided to sell the house as she could not stand up the constant harassment and search from [County 1] police station. Since then, she has been renting a place to live in the name of her friend.

I had no contact with [Wife A] from 2018 to 2019, because I was worried about getting her into trouble due to this incident. In addition, I was anxious that our call details and [messaging] contact history were very likely monitored. In May 2020, I contacted [Wife A] and asked her whether there was anyone looking for me recently. She said the [County 1] Public Security Bureau asked her whether I had come back during the Spring Festival and she replied that I had not. [County 1] Public Security Bureau also brought me a message, saying that I should not talk about my experiences overseas and I must visit the police station once I come back. After this, it is more certain to me that I cannot go back to China.
Now my passport will expire [in 2020]. I already entrusted my friend, [Miss A] to assist me in applying for a new passport at the Chinese Consulate in Sydney. The officer
in Sydney requested my visa letter, so [Miss A] sent my VEVO check record to the officer. However, as I am holding a bridging visa, I still need to provide a formal visa letter from Department of Home Affairs to the office of Chinese Embassy for verifying the subclass of visa that I applied for to obtain the bridging visa. Then [Miss A] provided them with my application letter for Protection Visa (subclass 866). In the afternoon of [date], I received a phone call from [a named officer] of the Chinese Consulate in Sydney. She asked me why I applied for Protection Visa (subclass 866) and requested a written explanation. I was also required to promise that I would not apply for this visa in the future.
After this, I become increasingly anxious about being persecuted if I return to China in the future and I may never be able to get a new Chinese passport. The Public Security System in China is all connected within the whole country and it is easy to get my information. Once I return to China, I will be at high risk of being persecuted.
I will send the record of communication with the officer from Chinese Embassy in Sydney to the AAT officer. If the AAT officer has any questions, I am willing to provide more evidence.

11.  Also provided were the following:

A workcover NSW certificate of capacity stating the applicant was injured on [a day in] November 2018 and that the diagnosis of work injury/disease was “intra abdominal trauma, mesenteric bleeding, 2. mental health problem: mutism? Depression and that he was first seen at the practice [in March 2020].

A medical report dated 12 July 2019 stating that the applicant seemed to have developed severe apathy and abulia with lack of speech, lack of emotional responses and reduced social interaction and poor attention. It also stated that this had had been caused by hypxia to the frontal lobes or basal ganglia as a result of the work related accident that he was involved in on [a day in] November 2018. 

Medical document marked final report dated 25 March 2020

Medical document marked final report dated 25 February 2020

An initial needs and ADL assessment report dated 22 January 2019

A Progress Report dated 30 September 2020 stating that the applicant had been certified unfit for work on 13 August 2020. It also raised issues relating to mental stability and schizophrenia.  

12.  The adviser also stated on 17 November 2020 that the applicant was unable to participate in the hearing because of his admission and ongoing mental ill health.

13.  The adviser attended the hearing on 18 November 2020. He stated he had seen the applicant on the 9 November 2020 and said the applicant had been admitted to hospital [later in] November 2020. The Tribunal adjourned the hearing and what followed were many attempts, over several years by the Tribunal to set the matter down for hearing, that is the Tribunal sought to have the matter heard on 19 January 2021, 27 January 2021, 27 May 2021, 26 October 2021, 17 May 2022 and 19 July 2023, all of which the adviser stated that the applicant was unable to attend because of his mental health condition.  

14. Prior to hearing attempts, the Tribunal asked for medical reports that addressed the following:

When was Mr [the applicant] first diagnosed with psychiatric issues?
If [the applicant] is complying with his antipsychotic treatment, then please explain the extent to which he can be expected to make rational decisions. Please also explain the extent to which he can understand informal legal proceedings, answer questions, give evidence and present arguments. Please address whether he can talk about present and past events.
If [the applicant] is not complying with his antipsychotic treatment, then please explain the extent to which he can be expected to make rational decisions. Please also explain the extent to which he can understand informal legal proceedings, understand and answer questions, give evidence and present arguments in support of his claims. Please address whether he can talk about present and past events.

15.  The Tribunal received responses including from, [Doctor A] dated 15 January 2021 which stated that he did not believe the applicant could make a rational decision. On 24 May 2021 [Doctor A] stated that it was reasonable to believe that the applicant would be able to understand informal legal proceedings give evidence and answer questions and present arguments in another 5 months which he again repeated on 18 October 2021.

16.  The Tribunal also received a further submission from the applicant’s adviser stating the applicant had longstanding medical conditions, and that according to the applicant’s statement, the applicant had contacted his wife in May 2020 and she said that [County 1] Public Security Bureau brought the applicant a message that he should not talk about his experiences overseas and he must visit the police station once back in China.

17.  In response to the hearing invitation on 16 May 2022, the applicant stated he had tested positive for Covid 19.  

18.  In response to the hearing invitation inviting the applicant to attend a hearing on 19 July 2023, the Tribunal received a further request for postponement. The Tribunal also received the following letter from [Doctor A] dated 2 July 2023:

Information from [the applicant’s] wife and myhealth record indicated that [the applicant] has been complying with anti-psychotic treatment. [The applicant] remains mute, incommunicable and highly forgetful. His speech mumbling and monosyllabic. He has very limited interaction and is poorly to instruct or to follow the process of consultation. I believe that [the applicant] is still not able to understand informal legal proceedings, give evidence, answer questions and present arguments. He is not able to recall his past events at this stage.

19.  On 17 July 2023 the Tribunal wrote to the applicant as follows:

The Tribunal has received your adviser’s latest request to adjourn the hearing on 19 July 2023.

This matter was set down for hearing on 18 November 2020 at which time your adviser attended the hearing and advised he had seen you on the 9 November 2020 and said you had been admitted to hospital [later in] November 2020). Since then, the Tribunal has rescheduled, at your adviser’s request your hearing 6 times, that is your hearing was rescheduled to the following dates:

19 January 2021,

27 January 2021,

27 May 2021,

26 October 2021,

17 May 2022,

19 July 2023.

While the Tribunal is committed to ensuring that it is accessible, fair and just, it must also consider its obligations to be economical, informal and quick. Given the number of times the Tribunal has attempted to reschedule your hearing and considering the most recent letter from [Doctor A] dated 2 July 2023, the Tribunal’s preliminary view is that it does not propose to again reschedule this hearing.

The Tribunal now invites you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

Please note, however, that we have not made up our mind about the information.

The particulars of the information are:

Your alleged employment

In your tourist visa application form signed 18 July 2016 you state the following employment:

·     general manager since 2001 of [Business 3] and

·     general manager of [Business 1]

This information is relevant to the review because it may be different to your protection visa application form that states your following employment:

·     May 1990 to April 2011 [Agency 1] driver

·     April 2011 to August 2011 [Business 1] [operations manager 1]

·     August 2011 to current unemployed

It may also be different to your protection visa statement in which you state that you bought a [property 1] which was rich in [resources] and in your later statement dated 9 November 2020 that states:

“I bought a [property 1] which was rich in [resources]. I bought it with [an Official 1] who is a relative of the head of [County 1]. In 2013, the county head and the [Official 1] were impeached due to illegal [practices]. I handled it using my own guanxi and took the rap for them.”

This is relevant because the Tribunal may find your statement as to your employment has continued to change and that you are not telling the truth about your employment or the alleged persecution that has happened because of your employment. If the Tribunal finds this, then subject to your comments, the Tribunal would affirm the decision under review.

Your alleged persecution

In your initial protection visa statement, you state that creditors were after you, that you went to Beijing to seek justice but was put into a detention centre however none of that was in your subsequent statement.

This is relevant because the Tribunal may find your statement as to your alleged persecution has changed. If the Tribunal finds this, then subject to your comments, the Tribunal would affirm the decision under review

You are invited to give comments on or respond to the above information in writing.

20.  The Tribunal received the following response dated 28 July 2023:

On 27 July 2023, our client attended our office for discussing the AAT’s inquiries. He was
assisted by his current de facto partner- [Partner A].
We explained to him that the AAT has reviewed the letter from [Doctor A] and currently does not propose to reschedule the hearing. We explained the AAT’s position in this matter. We explained that the AAT wants him to explain some inconsistencies mentioned in the letter dated 17 July 2023. We also explained what specific information the AAT believes inconsistent. Initially, our client talked a few sentences, then he was unable to provide us with meaningful responses.
We then asked [Partner A] to explain our client’s current condition. [Partner A] explained that our client’s current mental condition is still unstable and fluctuates. He sometimes talks and behaves like a normal person, but more often he is struggling with his mental illness. He cannot look after himself and he can hardly recollect the past events. He currently sees doctor regularly and takes medication as prescribed.
We then asked [Partner A] whether she knows anything about our client’s past employment and persecution. [Partner A] explained that she started to live with our client since 2018 before he was injured. [Partner A] explained that she had reviewed our client’s statement dated 9 November 2020.
She recalled that our client used to tell her some past events and what she knew about our client is consistent with his statement 9 November 2020. We then asked her whether she knew why there are inconsistencies on the Protection Visa application form. She said that the application was managed by [Representative A] who was mentioned in the statement dated 9 November 2020. She said that our client should have told [Representative A] the same contents as the statement dated 9 November 2020, but they did not know what [Representative A] had filled in the application form.
We also asked whether they have obtained the further medical opinions from [Doctor B]. She said they are still financially unable to afford that report, but they are trying to gather funds for this.
We then advised that it is inappropriate to keep AAT waiting for indefinite period and asked for the prognosis. She said she was not sure about the prognosis, but our client has been following doctors’ instructions to recover.
We then asked [Partner A] whether she could give a statement including what she has told us. She was pleased to do so. Hopefully, this statement can be provided by 31 July 2023. However, considering the time for translation, we will let the AAT know if extension is required on or before 31 July 2023.
We understand the AAT’s obligations and appreciate your constant generosity and
understanding. We also see that our client is still the best person to advise the AAT as to what he had experienced before he came to Australia, and there would be more specific details that our client wants to tell the AAT. We believe that it is important that an opportunity could be given to our client so that he could advise the full details of his persecutions. We sincerely seek the AAT’s understanding that the hearing needs to be rescheduled. We will also be endeavoured to assist the AAT to obtain any updates as soon as our client is fit to do so.
We will also keep the AAT updated as to our client’s health condition. We will also be discussing with the AAT in time about alternative process if our client cannot attend within reasonable period.

21.  The adviser also asked for a further extension and subsequently submitted the following translation of the applicant’s wife’s statement. 

I, [Partner A], am the wife of [the applicant]. Due to the current health condition of my husband, he is temporarily unable to recall and answer the questions asked by the Tribunal on 17th July 2023. Based on what I know about my husband's past, I give the following answers, hoping to assist the Tribunal process.

Currently, [the applicant’s] mental state is still unstable. He sometimes talks and behaves like a normal person, but most of the time his mental state is not good. He can't take care of his own life and can barely remember past events. Currently, he sees a doctor regularly and takes medication as prescribed.  He has also been following the doctor's advice for an early recovery. [The applicant] and I are not in a good financial situation at the moment, so he has not been able to visit [Doctor B] for consultation and get the report for the time being. I understand that the Tribunal needs more medical evidence, and we are still trying to find a way to get the report from [Doctor B] as soon as we can.

I have been living with [the applicant] since 2018. In our daily life, he also told me some of these past events. I've seen his statement submitted to the Tribunal, and what I learned was basically consistent with what was stated in the statement.  Regarding the inconsistent information in the refugee visa application, I remember he told me before that [Representative A] handled the refugee visa application on his behalf. He also relayed to [Representative A] according to what he told the Tribunal, but he did not know how [Representative A] filled out the application form.

Since my husband is currently unable to answer the questions, I'm trying my best to make the above statement according to what I know. I understand the Tribunal rules, and I am very grateful for the Tribunal's understanding. If the Tribunal needs any assistance from me moving forward, please feel free to contact me.

22.  On the 11 August 2023 the agent again asked for a further rescheduling of the hearing.

CRITERIA FOR A PROTECTION VISA

23.  The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

24.  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.

25.  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).

26.  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.

1. 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

28.  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

Preliminary issue

29.  This matter was initially set down for hearing on 18 November 2020 at which time the applicant’s adviser attended the hearing and advised he had seen the applicant on 9 November 2020 and said he had been admitted to hospital [later in] November 2020. Since then, the Tribunal has rescheduled the hearing 6 times, the latest being 19 July 2023 when the applicant’s adviser again requested the hearing be rescheduled and provided a letter from [Doctor A] dated 2 July 2023 stating that the applicant was still not able to understand informal legal proceedings, give evidence, answer questions or present arguments. 

30.  The Tribunal subsequently provided the applicant with an opportunity to respond to information in writing that would be a reason for affirming the decision under review and received a response with another adjournment request.

31.  While the Tribunal has considered the applicant’s adviser’s recent adjournment requests, given the Tribunal’s statutory obligation to complete reviews without undue delay and given the applicant appears to be incapacitated from participating in a hearing for the foreseeable future, the Tribunal has proceeded to make a decision without taking any further action, including proceeding to hearing.  

Main issue

32.  The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugee definition in China and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of his being removed from Australia to China, there is a real risk that he will suffer significant harm.

33.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

34.  In his protection visa application, the applicant stated that he bought a [property 1] which was rich in [resources] and bought it with [an Official 1] who was a relative of the head of [County 1], that in 2013 the county head and [Official 1] were impeached due to illegal [practices] but that the applicant took the rap, that he was subsequently prevented from contracting to the government and could not repay his loan and was threatened by creditors.

35.  Since then, the applicant has been diagnosed with serious mental health issues and despite many attempts over a very long period, the Tribunal has been unable to talk to him.

36.  The applicant’s mental health was first raised on 2 November 2020 after the applicant was invited to hearing and the applicant’s agent first asked if it was possible for the applicant to attend a hearing in person and then raised the applicant’s mental health as an issue. At that stage it was revealed that the applicant had been in an accident in November 2018 and that he had been attending [Hospital 1] since 2019.

37.  At no stage has it being submitted that the applicant’s mental health will cause him serious harm for a refugee reason or significant harm. 

38.  The Tribunal has not been able to observe the applicant.  Given that the medical evidence suggests that the applicant may have had difficulty with legal proceedings and that his mental health issues have been linked with his accident in November 2018, the Tribunal considers that is it is difficult to rely upon any of the applicant’s evidence after that date including the applicant’s submission dated 9 November 2020 which was written at a time when his progress report dated 30 September 2020 raises mental stability issues and according to the adviser’s submission, the applicant was undertaking mental health treatment.

39.  However, the Tribunal must still decide in relation to the issues and in doing so, it has considered the applicant’s submission dated 9 November 2020.

40.  The first issue relates to the applicant’s actual employment. On the evidence before it, the Tribunal finds it is unable to make findings about the applicant’s actual employment. That is because in his tourist visa application form signed 18 July 2016 the applicant stated the following employment:

·     general manager since 2001 of [Business 3] and

·     general manager of [Business 1]

41.  The Tribunal finds this information is different to the evidence in his protection visa application form dated 11 October 2016 that states that he was employed in May 1990 to April 2011 at the [Agency 1] as a driver, from April 2011 to August 2011 at [Business 1] as a [operations manager 1] and from August 2011 onwards he was unemployed. It is also different to his protection visa statement in which the applicant stated that he bought a [property 1] which was rich in [resources].  

42.  The applicant stated in his statement dated 9 November 2020 that most of the information provided in his protection visa application was inconsistent with the facts and blamed his then migration agent for that inconsistency. He also stated that he established [Business 3] [in] June 2001.

43.  However, the applicant’s 9 November 2020 statement that he established [Business 3] [in] June 2001 is inconsistent with his tourist visa application that does not state he owned a [property 1] but that he was general manager since 2001 of [Business 3] and general manager of [Business 1]. There is no explanation for this inconsistency. In reaching this conclusion, the Tribunal has considered the applicant’s wife’s response. In that response, she stated that the applicant used to tell her some past events and what she knew was consistent with his statement of 9 November 2020. In the Tribunal’s view, repetition of the applicant’s statement by another person without more does not make that statement true. The Tribunal has also considered the documents entitled Business license, one of which states that [Business 3] was established [in] June 2001 with the applicant as a legal representative, another license states that [a specified site] of [Business 3] was established on 5 March 2003 with the applicant as head of that company and yet another license states that on 26 March 2012 the [Business 1] was established with the applicant as investor. These alleged licences in the Tribunal’s view simply add further inconsistencies about the applicant’s employment.   

44.  The Tribunal finds that the applicant’s statements in relation to his alleged employment have continued to change and because the applicant’s alleged persecution in China is based on his alleged employment, there are doubts about the veracity of the applicant’s entire claims.

45.  The Tribunal does not accept that the applicant has been telling the truth about his alleged persecution in China and rejects the entirety of the applicant's claims. It therefore does not accept the applicant did buy a [property 1], or that he was prevented from subsequent business, nor that he was unable to pay creditors who then pursued him or that he went to seek justice and was put in detention. Neither does it accept that he became a scapegoat for others, nor that he was prosecuted and sentenced, nor that he was forced to sell his business, nor that his ex-wife and [child] were somehow targeted, nor that he sent report letters nor that he was being dealt with by the [Authority 2] or that he was forced to disappear. Given the Tribunal does not accept that the applicant is credible, neither does it accept the applicant’s claim that his friend [Miss A] provided the Chinese consulate in Sydney with his protection visa application letter.

46.  After considering the applicant's articulated claims, the Tribunal is not satisfied that if the applicant returns to China, he has a real chance of harm in the reasonably foreseeable future. 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 the Refugees Definition. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

47.  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).

48.  The Tribunal has rejected the applicant’s past alleged persecution and does not accept that his friend [Miss A] provided the Chinese consulate in Sydney with his protection visa application letter. After considering the applicant's articulated claims, the Tribunal is not satisfied that as a necessary and foreseeable consequence of the applicant being removed from Australia to China, that there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.

49.  The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

DECISION

50.  The Tribunal affirms the decision not to grant the applicant a protection visa.

Angela Cranston
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.

…

1. Protection visas – criteria provided for by this Act

…

1. 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.

…