1714790 (Refugee)

1714790 (Refugee) [2023] AATA 3204 (13 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Harry Huang (MARN: 9579277)
CASE NUMBER:  1714790
COUNTRY OF REFERENCE:                   China
MEMBER:Rodger Shanahan
DATE:13 July 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 July 2023 at 4:31pm
CATCHWORDS
REFUGEE – protection visa – China – scammed by the nephew of the local police chief – credibility concerns – knowingly providing false documents – fraudulently obtain an Australian visa – inconsistent information – delay in leaving the country – delay in seeking protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 424AA
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 23 June 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of China, applied for the visa on 14 August 2015.
The applicant appeared before the Tribunal on 21 June 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
Protection Visa Application Statement
[In] May 2015, I arrived in Australia. On [date], I was born in [Village 1], [Town 1], Fuqing City, Fujian Province, China.
In July [year], I went to Guangdong after I graduated from [School 1]. I worked at different [shops] in [District 1], Foshan City for nearly l O years. I not only mastered the skills of [Occupation 1] but also gained profound experience.
[In] February 2002, I got married with my wife. In order to look after my family, I decided to stay at my hometown in Fujian. In March 2002, I got a job in a [shop]. 1 worked there for 5 years and developed good relationship with the boss. Therefore, when the boss migrated to the South Africa in 2007, he transferred his [shop] to me. I then had the [shop] renovated and named "[Shop 1]".
In July 2007, my "[Shop 1]" was formally opened. During following years, my shop's business was successfully developed. I got many regular customers and won good reputation.
Around June 2014, [Mr A]. who was the nephew of the deputy president of [Town 1] Police Station ([Town 1] PSB), returned to China from the overseas. l was told that [Mr A] had studied in [Country 1] for many years but he got nothing. After he returned to China. [Mr A] set up a trading company in [Town 1] and pushed sale of [Product 1] to my shop. All of these [Product 1] were renovated [Product 1], which were reproduced from old [Product 1]. Their quality was very poor. but the price, which [Mr A] decided, was much higher than the prices in the market. Therefore, I had to refuse [Mr A].
In January 2015, [Mr A] came to my shop with many people, and put a lot of renovated [Product 1] in my shop by force, and asked me to sell them for his company, and said that he would take the payments for those [Product 1] in three months. Although I stated repeatedly that it would be impossible for me to sell these [Product 1], [Mr A] still left these [Product 1] in my shop. After that, I many times contacts [Mr A]. asking him to take these [Product 1] away, but he ignored me completely.
In March 2015, [Mr A] and his men came to my shop and asked me to make the payment for those [Product 1] which he had previously left in my shop. I pointed out to them that none of those [Product 1] had been sold. [Mr A] said that it was not his business. He asked me to give him RMB100,000. l said: "I have never agreed to sell these [Product 1], but you left these [Product 1] by force. And, we do not sign any written agreement. Furthermore, values of these [Product 1] are far less than RMB I 00,000." [Mr A] blamed me to refuse to sell his [Product 1] on purpose. He also blamed me to damage his [Product 1] and made him suffer from serious financial losses. [Mr A] threatened that he would let the police arrest me if I failed to give him the money.
I believe that this is blackmail and extortion and decided to report to the police. Considering that [Mr A]'s uncle was the deputy president of [Town 1] PSB, I was worried that they might not help me, and thus I went to Fuqing City Public Security Bureau (Fuqing PSB) directly. The police at Fuqing PSB promised to help me. Several days after that. the police from [Town 1] PSB came to my shop, saying that they were notified by Fuqing PSB to collect relevant information. They also told me that the deputy president of [Town 1] PSB advised them to investigate this matter fairly.
On 1 April 2015, [Mr A] let his men take away all these [Product 1] from my shop. Shortly after that, [Mr A] came to my shop, saying that these [Product 1] were all wrecked. He asked me to compensate him RMBl 50,000. I said that I had never touched these [Product 1]. I was also asked him: "You originally said that the values of these [Product 1] were RMBl00,000. Why they have been changed to 150,000RMB now?" [Mr A] never listened to me but threatened that he would lead his men to smash my shop if I failed to give him the money. I had to go to Fuqing PSB again. However, Fuqing PSB said that this case had already been transferred to [Town 1] PSB, and advised me to contact [Town 1] PSB.
On 8 April 2015, when I was preparing to go to [Town 1] PSB from my shop, [Mr A] led many people to smash my [shop]. My brother [Mr B] was in the shop at that time. Both of us were beaten up by [Mr A] and his men. In order to protect me, my brother was seriously wounded. He died shortly after we sent him to the hospital.
l went to [Town 1] PSB together with my parents as well as my sister and other two brothers after the incident, demanding the police to investigate this matter immediately. But. the police said after their investigation that the incident was because that I failed to pay the money which I had owed to [Mr A], and that my brother was accidently killed owing to his conflicts with others. The police therefore refused to do anything for us.
In order to seek the justice and particularly let [Mr A] and others who had killed my brother be subjected to punishment according to the law, I decided to make my complaints. I knew that [Mr A]'s uncle was the deputy president of the police station. I thought that he would have close relationship with Fuqing PSB. It was obviously impossible for my case to be treated fairly in Fuqing. I. therefore, went to Fuzhou, urging Fujian Provincial Government to investigate not only my case as well as my brother's death but also [Mr A]'s uncle and the corruption within [Town 1] PSB and Fuqing PSB.
On 30 April 2015, when I returned to my home in Fuqing from Fuzhou temporarily for public holiday of "May 1st International Labour Day", I found that the police from [Town 1] PSB came to my home to arrest me. l had to flee away at once. I then hid in my good friend [Mr C]'s home in Guangdong. I used to stay together with [Mr C] for many years. He ran a [shop] in [District 1]. In order to save me, [Mr C] asked his friends to organise my trip to the overseas in a very short period. So, J was able to leave China [in] May 2015.
Since I left my hometown in Fuqing, the police have never stopped harassing my parents, my sister and my two brothers. The police say that I have committed a crime of "inciting subversion of the state's political power". The police threaten my parents and others that they will be sent to the jails if they fail to well co-operate with [Town 1] PSB and Fuqing PSB to investigate my "crime".
If I return to China, I must be arrested and even killed by the police. I therefore, have to seek protection in Australia.
AAT Hearing
He was asked if he knew everything that was in his protection visa application and that it was true and correct and he said that he did. He did not wish to add anything. Asked whether he knew everything that was in his business visa application he said he was given help from the people whose house he was staying at. It was put to him that he would have provided certain information to them for the visa application and he said that he just provided his passport only. It was put to him that he would have signed it and provided some financial/employment information.
He said they did it all themselves as he was too afraid to go out for fear of being arrested. His brother had been beaten to death. It was put to him that on the visa application there was normally a requirement to list all close relatives, including if they were alive or dead. He was asked whether he had mentioned his brother in his business visa application and that he was deceased. He said he didn’t know as the other person did the visa application, and he hadn’t told the other person that his brother was dead. He was asked whether he knew if his brother would have been included on the visa application as alive or dead and he said he never told his friend that his brother was dead. It was put to him that his brother must then have been included as being alive on the application form, if he hadn’t told his friend that his brother was dead.
He was told that the visitor’s visa application required that his family members be included on his application form and whether they are dead or alive. He said he didn’t understand and repeated that he only provided to his friend his passport. He was asked again whether his visa application included his brother being dead or alive and he said that he didn’t know. It was put to him that the application should show his brother as alive if he hadn’t told his friend that his brother was dead. He again said he only gave his friend the passport. It was put to him that the Tribunal was concerned that his business visa would not show his brother as deceased. He did not respond.
He claimed that if he returned to China, he would be charged with overturning the regime, would be arrested and detained and perhaps beaten to death by the police. They would do this because he owed a person some money who had scammed him. [Mr A], the one who sold him the dud [Product 1] was the nephew of the [Town 1] deputy police chief.
Asked if he had copies of the court records, he said they were seized during a search at his house. They also took his ID and business licence and some tax-related documents. Asked what court documents were seized, he claimed that there were photos of his brother being hit and documents from the court process. Asked if he had mentioned these court documents previously or going to court previously, he didn’t answer. Asked what actual court documents he had, he claimed that they were from the Anti-Corruption Authority – asked if this was a court, he said they filed the matter to the [Town 2] Authority as Fujing had passed it to them.
It was put to him that in his statement he said that he went to Fuzhou in Fujian Central Government which was different to what he had said today. He said it had been a long time since he had written that and it was hard to remember. It was put to him that he should be able to remember where he went if not the dates he went. He claimed that he couldn’t remember that much because Fujiang had a new police station built. It was again put to him that the problem was the organisation and location he claimed today that he went to was different to what he said in his statement. He said he couldn’t remember exactly but had told his adviser what he knew. It was put to him that he had had advanced warning of the hearing so he should have been able to refresh his memory before he attended today.
He agreed that he ran a [business] and took some people to court over an issue and was asked for more details. He said that he took over his former employer’s business and then a couple of years later this person ([Mr A]) came to him with recycled [Product 1] without compliance that they passed off as compliant. He had to sell 100,000 RMB. He sold no [Product 1] but asked for another 40-50,000 RMB and took the [Product 1] away. [Mr A] took the [Product 1] away and said the [Product 1] should have been written off and then demanded compensation from the applicant.
He was asked why they would give him [Product 1] to sell then later take them away for testing. He said they had been there for a few months and had been re-cycled. After the testing he accused [Mr A] of blackmail and [Mr A] sent people to beat them up. His brother was beaten up but didn’t remember whether his brother was killed this time. Asked when his brother was born, he claimed that he didn’t know it but he also didn’t know his other brothers’ birth dates. It was put to him that it was strange that he didn’t know his brother’s birth or death dates. Asked how old his brother was when he died, he said he didn’t know but thought he was in his fifties. The applicant said that people didn’t know their siblings birth dates and people looked after themselves. It was put to him that he didn’t even know when his brother died.
After his brother was killed they tried to take the people to court. Asked which court this was he said it was in Fujing City but the court referred it back to [Town 1] police. He was asked again and agreed that they went to court after his brother was killed and filed a court case. The adviser interjected and said there was confusion between appeal and court and this may be a problem. The interpreter rejected this comment from the adviser. The adviser was not a NAATI-qualified interpreter and he was told if there was an issue regarding this he could provide an alternate interpretation post-hearing.
He went to the court and he provided the photos of his brother being beaten as evidence. Asked if he had mentioned these photos previously, he said the photos had been seized. Asked if he had previously mentioned that he possessed photos of this type he said not in the statement and not at interview because they couldn’t send them to him, his wife didn’t know how to send them to him and he was afraid if they were seen. He made the complaint about his brother at court accompanied by his wife.
The second time was with his older brother. He went there seven or eight times and they only accepted his signature on the last occasion. Asked what he meant by this, he said the police seized their evidence when they tried to make a complaint. Asked who seized the evidence, he said it was security – asked to clarify he said it was court security. They returned later to look for things and they were told the matter had been referred back to [Town 1] police station.
Asked if anything happened after this, he said that [Mr A] and others were looking for the applicant, smashed windows at his home and pushed his father. The oldest son of his oldest brother was also beaten and had now gone missing (he was deaf and dumb). This occurred in 2015 about six months after the applicant arrived in Australia.
The applicant fled to his friend’s house. He had only known this recently because he had learnt that his phone was being monitored. He was afraid that the [Town 1] police station would know where he was because his phone number would show on their side. Asked what he meant (landline, Whatsapp, mobile) and how he knew, he said in China all numbers show up and he used a mobile phone. Asked how the police could see the number on his family’s phone and how he knew his call was being monitored as the point of monitoring a phone is not to let the party know it is being monitored so they can listen in. What he was saying didn’t make sense.
He said that after he rang then someone from China would call him back and this made him scared. Someone said that they wanted him to go back soon. He was asked if they asked him to return or threatened to hurt him if he did or didn’t go back – he was asked to clarify. He said that if he didn’t return they would harm his family and if he did they would harm him. The second return call came from [Town 1] Police Station. He was asked why they would call him in Australia and threaten to harm him as this could cause him not to return, whereas their alleged aim was to get him to return so they could harm him. What he was saying didn’t appear to make any sense. He repeated what he said previously – they threatened his family often in the last few years. Asked if anything happened to his family, he said his older sister was arrested in September 2017 and went missing. They had also gone to his home and made chaos and his wife had run away to another location and was too afraid to return. That was all.

Asked how he was able to escape China if he was being looked for everywhere, he said that the day he was to be arrested he happened to be out and when he returned his family told him the police had been and his children were told to warn him so he could run away. He ran away to his friend [Mr C] in Guangdon. He was away from his house when the police came. He believed they had an arrest warrant but wasn’t sure as he was away. His child notified him abut the police and he ran away to his friend’s house. He took his passport.
He was at his friend’s house for more than 10 days. Asked what he intended to do when he got to his friend’s house, he said he asked for them to arrange for him to leave the country. He wanted to leave as soon as possible – any country would do but his friend chose Australia. Asked why they chose Australia, he claimed that he had no idea as his friend chose the destination. Asked how long they took to get his visa to come to Australia, he claimed that the friend got him a flight for [date in] May but he wasn’t sure how long the visa took.
He was at the house for around 18 days before his flight left – he was asked why his friend booked him a flight so far in the future if he wanted to leave China as quickly as possible. There were plenty of flights out of China and he could transit through another destination before he came here. He was asked why his friend booked a flight so far in advance given the applicant’s alleged urgency to leave – it didn’t make sense. He said he just stayed home and didn’t know why his friend chose this date.
He said he thought it may have been difficult for his friend to make arrangements and needed to arrange security to escort the applicant through Bayun airport. Asked if he was talking about his local airport, the applicant said that it was in Guangzhou not Fujian. He was asked why he needed security at this particular airport and he claimed that his friend arranged all his travel and security through a friend of his friend’s. The airport that he left from wasn’t close to where he normally lived and he was asked why he needed security in this case. He said he didn’t know what the security was for as his friend arranged it.
Asked how long after he received his visa that he left on the flight, he claimed that it was about 10-18 days between his visa and the flight and he just hid at his friend’s place – he wasn’t even sure when the visa was granted. Asked what his intention was when he left China, he said he wanted to save his life and hide offshore so he couldn’t be found.
Asked when he applied for protection in Australia and whether it was at the airport when he arrived, he said that he didn’t know enough when he arrived and he later found from someone else who to contact. He was told this was very vague and was again how long it took him to apply for protection given his brother had been beaten to death and he was in hiding before he came to Australia. He said it was around 28/29 May when he applied – he found someone to authorise to apply. It was put to him that he applied on 14 August 2015 which was nearly three months after he arrived in Australia.
He was asked why there was such a delay given the harm he claimed to be fearing at the time he left China, and he claimed that he wasn’t familiar with things here and didn’t know English and was trying to find someone who could speak Chinese. It was put to him that it was pretty easy to find Chinese speakers in Sydney and it didn’t make sense that it would take him three months (just before his visitor visa expired) which raised questions about the genuineness of his fear. He said he was looking but couldn’t find anyone and even if he asked no one would have told him.
He was asked why a church or other assistance group or the immigration department would have refused to speak to him, and he said he didn’t even know where Chinatown was when he arrived. He was asked what he did to find a Chinese speaker to assist him during the three months it took him to apply for protection, he said that he tried to find a lawyer to help him with protection.
He was asked how his sister-in-law died and he said that after his brother was killed the authorities looked for his family and beat them and this happened after a year and she suffered from internal injuries. Asked to re-state what he had said, he said that [Mr A] got a few people to look for his sister-in-law. Asked how old she was when she died, he said that he didn’t remember.
It was put to him that the Tribunal had documents that he had provided (death certificates, search warrant and summons) and he was told that country information indicated that fraudulent documents were easily obtained in China and the documents he provided had no security features and could have been produced on any home computer so it was unlikely the Tribunal would be able to give them much weight. The lack of knowledge regarding his brother and sister-in-law’s age or birth dates or dates of death raised concerns that perhaps he either didn’t have either relative or that they were never killed in the first place. He said that he wouldn’t have come to Australia given he had a business and a family. It was put to him that the Tribunal didn’t hypothesise about his reasons for arriving here, it just adjudicated on his claim.
He was then told about s 424AA and it was put to him that he said his nephew went missing in 2015 after he came to Australia and that when he went to the court to report his brother’s death he first went with his wife and then with his older brother. During his Departmental interview in 2017 he claimed that his niece had gone missing rather than his nephew and he also only mentioned one occasion he went to the police station to report his brother’s death and that he went with his father and there was no mention of his wife or brother. These inconsistencies could call into question his credibility as a witness.
He stated that he came to know later on that his nephew and older sister went missing. His niece and older sister also went missing. So, a few people had gone missing and this was why his parents didn’t want him to return. The times he went to the police station or court he just mentioned this roughly as it was a long time ago that these events occurred.
It was put to him that his actions in China and Australia didn’t appear consistent with someone fearing death. He was granted a visa on 8 May 2015 but didn’t leave for another week and a half. If he was someone fleeing for their life or that someone was arranging travel on his behalf it was reasonable to believe that they would want him on the first plane out of China once he had a visa so the delay didn’t make sense. Then his delay of nearly three months once he arrived in Australia before he applied for protection also raised questions about the truthfulness of his claim to fear death in China.
He said that his friend in China gave him the address of someone to contact in Australia but he couldn’t find him and he had to sleep rough for a while. He was asked if he had any evidence of this and he said he didn’t. He found accommodation and shared a place with an old man from Shanghai who helped him with his rent. It was put to him that he was able to find accommodation yet claimed that he was unable to find out how to apply for protection for ten weeks. The Tribunal was concerned that he had fabricated his story about what occurred to him in China. He said that what he said was true. The adviser was asked and said that he didn’t wish to raise anything and that he didn’t wish to pursue the issue he raised regarding the interpreting.
Second Hearing 12 July 2023
The applicant was asked and agreed to waive the preliminaries for this second hearing. The applicant was asked and agreed that prior to coming to Australia he had not travelled overseas previously. He was also asked about the sequence of events regarding his fleeing to his friend’s house. The police came to his house while he was outside and took ID and a range of documents. He agreed this was the case – he was at the store (later said that he was halfway between the shop and home) and his wife told his child to tell the applicant to run away. He then fled to his friend’s house from the shop. He agreed that he only had with him what he took to the shop.
Asked why he had his passport on him, he claimed that the passport was taken to his friend’s house. It was put to him that he had said previously that the police came and took his ID, business registration and tax documents and they would likely have taken his passport to stop him travelling. He was asked how he came to have his passport and he said that it was with his marriage certificate which was in a different place to the other identity documents so it wasn’t taken.
He was told about s. 424AA and he was asked to clarify that he gave his friend his passport and his friend then began the process of getting the applicant’s visa. His friend began acquiring the visa the same day he gave the friend the passport. It was put to him that the Tribunal had access to his business visa application in China and the Tribunal was concerned that he had provided false information to the Australian government and he had fabricated his claim that his brother had been beaten to death.
Regarding his family composition there was no mention of his dead brother. He said his friend did the whole process for him and he wasn’t aware of the details. He had been asked at the previous hearing whether he told his friend that his brother was dead and he said he hadn’t told his friend this fact. Therefore it made no sense that his good friend would not include his brother in the family composition. The family composition included in his protection visa application however, bore no resemblance to the family composition he provided as part of his application in China. A brother was included but with a different name and different date of birth to his allegedly deceased brother. There was nothing in the visa application that indicated it had been filled out by somebody other than the applicant.
He again reiterated that his friend filled out the application and he had no idea what was included. It was put to him that the passport presented to the Australian embassy in China contained a Schengen and US visa and entry stamps to the US, a European country and [Country 2]. The details on the passport copy from the embassy file was the same as his current passport in all respects except they had different places of birth and place of issue. It is unlikely his friend would have had time to get a false passport to commence the visa process in the timeframe the applicant indicated and the Tribunal was concerned that the applicant had knowingly presented a false passport to the embassy to gain an Australian visa.
He repeated that he gave the passport to his friend and he did the process and didn’t know what he did. It was also put to him that he had claimed that the police had taken his ID documents however a range of ID documents were provided to the embassy and the Tribunal was concerned that he had not been truthful regarding the police searching his house and taking his ID documents. He repeated his claim about his friend who would not have told him the illegal things he did.
It was put to him that it would have taken some time for his friend to find a false passport and the fake visas and entry stamps. The applicant stated that it took his friend over ten days to complete the process and he hid at his friend’s the whole time. The applicant left on [date] May. It was put to him under s. 424AA that he signed his visa application on 4 May and it was approved on 8 May which was four days between submission and approval rather than ten days – this further raised concerns regarding the applicant’s truthfulness. The Tribunal was concerned that the applicant had knowingly changed his place of birth and established a false travel pattern to improve his chances of getting a visa and he was fully aware of the false information he provided. The Tribunal was also concerned that he had no problems with authorities in China and his brother was never beaten to death. He again said that his friend was responsible and he had no idea of the false information that was provided.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on a business visa [in] May 2015, and applied for protection on 14 August 2015. He is a [age] year-old man who claimed that if he returned to China he would be charged with overturning the regime, arrested and perhaps killed by the police because he was scammed by the nephew of the local police chief who claimed that the applicant owed him money.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not expected to accept uncritically any and all claims made by an applicant.
Overall I found the applicant’s evidence regarding her claims to lack credibility. For reasons set out below I did not find the applicant to be an entirely credible, reliable or truthful witness, and find that she fabricated her claims in order to be granted a protection visa.
Knowingly Providing False Documents
I am satisfied that the applicant has knowingly provided a fake passport to Australian immigration authorities in order to fraudulently obtain an Australian business visa. Following the first hearing the Tribunal obtained a copy of the applicant’s business visa application he submitted in China. The photocopy of the passport he submitted in China is the same in all respects as his current one he travelled to Australia with, however in the one submitted in China it shows his pace of birth and the passport’s place of issue as ‘Zheijang’ whereas in his travelling passport both are shown as ‘Fujian’.
The passport submitted in China also contained a Schengen and US visa and entry stamps for both as well as [Country 2]. The applicant had stated that he had never left China prior to departing for Australia. I do not accept that the applicant’s friend with whom he stayed was entirely to blame for this deception. It would have taken some time for his friend to obtain the range of documents that he did (fake passport nearly the same as the real one, fake visas and entry stamps and the same ID documents that the applicant claimed to have been taken by the police during a house search prior to arriving at his friend’s. The applicant when asked stated that the process took his friend ten days, yet the visa application was signed on 4 May and approved on 8 May.
Other Credibility Issues
Although the false documents presented by the applicant represent a major mark against his credibility, there were a number of other, more minor issues where the Tribunal felt it was reasonable for the applicant to have known certain information, or where he gave inconsistent information, that led the Tribunal to form an adverse opinion as to his credibility as a witness. These included, but were not limited to the following:
a.In his Departmental interview he claimed that his niece went missing, his sister-in-law died and that his sister was also missing in China. At hearing he claimed that he found out his (deaf and dumb) nephew was beaten and then went missing six months after the applicant arrived in Australia, and that his sister was also missing. When he was advised of this inconsistency regarding whether his niece or nephew went missing, he then said that his nephew and his niece were both missing. I do not accept this to be the case as he only raised the dual disappearance when he was confronted with the inconsistency in his claim. At hearing he was given the opportunity after he had mentioned his nephew was missing to state what had happened to his other family members and he only stated that his sister was missing and that this was all;
b.He claimed that his brother had been beaten to death and provided a death certificate to this effect. However, in his business visa application tendered to the Australian embassy no such brother is recorded as either living or deceased. I have already rejected the applicant’s claim that any inconsistency is the fault of his friend who allegedly submitted the application. It also makes no sense that this close family friend (who had not been informed of the brother’s death) would fail to make mention of the brother in the visa application given it would have made sense to have as much of the information in an application to be as truthful as possible.
Dispute with [Mr A]
I do not accept that the applicant ever had a dispute with someone called [Mr A] over the sale of suspect [Product 1], that [Mr A] then tried to blackmail and extort money from the applicant, that the applicant’s brother was killed, that the applicant ever reported the matters to the courts, the police were searching for the applicant or that he ever had to flee China to escape the authorities or [Mr A] and his henchmen. The account relies to a large extent on the applicant’s oral testimony, large parts of which lack credibility. It also relies to some extent on documentary evidence provided by the applicant (two death certificates, a summons and a search warrant). I can not lend these any weight given country information[1] indicates that document fraud is common in China and on a scale unmatched anywhere else in the world. The copies of the documents that he provided also contain no security features.
[1] DFAT Country Information Report – China, 22 December 2021, p 42.
The applicant claimed that he had court documents[2] that were seized by the police, however I do not accept that this is the case. He also claimed that he had his ID documents seized by the police yet his business visa application in China indicated that his ID documents were provided to the Australian embassy after he claimed they had been seized. Without the provision of any such documents I am forced to rely solely on his oral testimony unsupported by any corroborative information these documents may or may not have contained. I have already noted that the applicant lacks credibility as a witness.
[2] There was some confusion regarding to what institution complaints were made and who accompanied him when he made them. The Tribunal has not explored this further given I have already found that the claim about a dispute with [Mr A] to have been completely fabricated in the first place.
I do not accept that the applicant’s brother was beaten to death by [Mr A]’s henchmen or that his sister-in-law was also beaten and died from internal injuries. To begin with he claimed that he couldn’t remember whether his brother was killed the initial time that [Mr A]’s henchmen came to beat them up. I have also noted previously the absence of the brother from the record of family members provided to the Australian embassy in Beijing as part of the applicant’s business visa application. I have taken into account the death certificate that he claims is evidence of his brother’s death however I have already noted the prevalence of documentary fraud in China, as well as the applicant’s use of fake documents to obtain a visitor’s visa.
The applicant’s delay in leaving China and applying for protection in Australia are also inconsistent with the serious harm he claimed to fear. It also make no sense that his friend, having allegedly obtained a visa for the applicant would then wait for 10-18 days for a flight out of the country. I do not accept that the delay was because the friend needed to arrange security to escort the applicant through the airport. He had not mentioned this previously nor could he explain what the security was for.
Then, having arrived in Australia allegedly with the intention to save his life he waited for nearly three months to apply for protection. Whilst I accept that he did not speak English which could account for some delay, he could just as easily have presented himself to Customs/Immigration at the airport or to seek a Chinese speaker in Chinatown or several of the Chinese-speaking suburbs of Sydney. It is reasonable to believe that if his friend in China had the wherewithal to obtain an Australian visa, airline ticket and security detail to enable the applicant to leave China then he would also have been able to produce some guidance as to what to do once he got to Australia in order to commence the protection process before the applicant left China.

Australia was chosen as the destination for a reason – presumably as the applicant claimed to be fearing serious harm because the friend knew he could seek protection. It lacks credibility that his friend in China would simply have put him on a plane with no other assistance, or simply given him the name of a friend in Sydney without any other details, or arranging for that friend to meet the applicant given the applicant’s language limitations.
As the applicant hasn’t raised any other claims to fear persecution, and having regard to all the evidence and his claims both singularly and cumulatively, the Tribunal finds that there is not a real chance that the applicant will suffer serious harm for any s 5(J) reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the applicant was ever in a business relationship with, or scammed by [Mr A], was or is wanted by any Chinese security or police authorities or that he had his house searched, his brother and sister-in-law killed or his niece and/or nephew had been disappeared, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
As a consequence, I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, that there is a real risk that the applicant will suffer significant harm on the basis of these claims as set out n the complementary protection criterion set out in s. 36(2)(aa).
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rodger Shanahan
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 3204

13 July 2023

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