1724830 (Refugee)

1724830 (Refugee) [2023] AATA 860 (5 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Harry Huang (MARN: 9579277)
CASE NUMBER:  1724830
COUNTRY OF REFERENCE:                   China
MEMBER:Rodger Shanahan
DATE:5 January 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 05 January 2023 at 6:12pm
CATCHWORDS
REFUGEE – protection visa – China – land dispute with local politician – father’s alleged murder – credibility concerns – extraordinary coincidence – lack evidentiary basis – delay in seeking protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
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 26 September 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 27 January 2017.
The applicant appeared before the Tribunal on 1 December 2022 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 2004, my father was in conflict with [Mr A], who was the village head in my home village, because the village head wanted to build up a new house for his son in my family’s farmland. As my home village is surrounded by hills and the farmland is really valuable, my father firmly rejected the village head’s request. The village head hen employed [Mr B], a “Big Brother” of the “Black Society”, who used to be imprisoned for many years, to compel my father to submit to him.
Eventually, my father was killed by [Mr B]. My family’s farmland was occupied by the village head. [Mr B] had medical evidence that he suffered from serious mental illness due to his having been imprisoned for many years in the past, and that he completely lost his capacity for normal conduct. Consequently, [Mr B] needed not to take any responsible for killing my father. Moreover, we were unable to have any evidence that [Mr B] has been employed by the village head. In other words, neither [Mr B] nor the village head has been subjected to any punishment by law owing to my father’s death.
From 2004 to 2014, my brothers and I spent 10 years to appeal for my father’s case. We approached many government agencies, including the PSB, the court, and the procuratorate. We also visited some legal firms in order to seek legal assistances. However, we could not get successful. Furthermore, [Mr B] left my hometown not long after my father’s death. After that, we could not locate him for quite a long time. During this period, [Mr A] was firstly promoted to work at [a] township government, and then to appoint as a senior officer at [the] municipal government. His younger brother [Mr C] became the village head of my home village. In such a situation, no one was willing to give us any helps.
In 2015, I saved [Dr D], an aged woman, who used to work as a doctor at [a] Mental Hospital for many years, when I renovated an old house for a resident in [Village 1]. [Dr D] then told me the truth that [Mr A] bribed the doctors at the mental hospital to provide medical evidence that [Mr B] had suffered from serious mental illness in order to assist [Mr B] to escape from punishment by law. [Dr D] also told me that her student, who worked at [Hospital 1] in Fujian, knew [Mr B] lived in a village in Ningde, Fujian, and that he even got married and had a son with his wife.
I later on secretly went to Ningde, and eventually found [Mr B] with helps of [Dr D]’s student. After I eventually found [Mr B], I made up my mind to appeal for my father’s case again. However, my whole family, including my mother, brothers and sister, did not support me. They thought that we had already spent 10 years to seek justice for my father’s death but we received nothing. They believed that it was actually not for the reason that we could not find any evidence and that it was because [Mr A] and his families had powerful official background.
But, I did not accept it. Since Jinping XI took the power in China, anti-corruption movement has spread throughout the whole country. I should have a chance to win the case with strong evidence. Furthermore, I got to know [Mr E], a relative of [Dr D], who was a solicitor and ran his own legal firm in Fuqing. Solicitor [Mr E] was willing to help me to appeal for my father’s case.Given that [Mr A] had powerful official background in Fuqing, Solicitor [Mr E] decided to assist me to seek appeal for my father’s case to Fujian provincial government.
From 2016, both [Mr E] and I many times went to Fuzhou, urging the provincial government to investigate the death of my father as well as corruption of Fuqing municipal government, particularly to investigate [Mr A] and his families. Considering our safety, we repeatedly required the relevant authorities of the provincial government to keep everything in secret. We waited and waited, and we could not get any helps for quite a long time.
One day in June 2016, when I worked at a construction site, I was suddenly informed by my mother that the police went to my home for me with an arrest warrant. I immediately fled away, and went for hiding at my friend [Mr F]’s home for about 4 months from then on. During that period, I learned that Solicitor [Mr E] had been arrested by the police, and that his legal firm had been closed by the PSB. I also learned that both [Mr E] and I were accused of framing Communist officials up and inciting “anti-government” movement. After that, the police went to my home to arrest me for many times. My mother, brothers and sister were questioned, threatened and harassed by the police. Even [Dr D] was implicated by my case. She was interrogated by the PSB for several times.
[Mr F] had a friend who worked at Fujian provincial government. Through [Mr F]’S friend, I learned that [Mr A] had found my appeal for my father’s case under the help of Solicitor [Mr E] with his connections within the provincial government, and thus [Mr A] wanted to put us to death. [Mr F] advised me to leave China as soon as possible. Otherwise, I would be murdered sooner or later.
[In] October 2016, I eventually got a chance to leave China from an airport in [City 1]. It was planned and organised by [Mr F] and his friend. As I have been on the “black list” of the PSB, it would be impossible for me to depart China. So, [Mr F] had to bribe an official in the airport through his friend. [In] October 2016,1 finally arrived in Australia.
Since I left China, the police have frequently made troubles with my families. The police threaten them that they would be arrested immediately if they fail to report any information about me. I have to apply for a Protection visa in Australia, because I must be arrested, imprisoned and even killed by the authorities if I go back to China.
AAT Hearing
At the hearing he was asked if he had any statement other than his initial claim statement and he said this was the only one. He was asked to confirm that he entered on a Taiwanese passport but that the Chinese passport was his real one and that he was Chinese. He was asked about a Thai visa in his Chinese passport and he said that the smuggler obtained them for him after he paid them money. He never actually visited Thailand. He said that he didn’t know why he obtained a Thai visa. It was put to him that the passport was obtained in 2009 and he agreed that this was true. He then confirmed that he requested and obtained the passport but didn’t know why there was a Thai visa in it.
Asked again why there was a Thai visa in his passport and he again said that he didn’t know. When he arrived at the airport he gave them the passport so those people could work out how he could get out of China. Asked why he applied for a passport in 2009, he said that he may have wanted to go for tourism somewhere. Asked where he was planning on travelling in 2009 when he got the passport, he said that it didn’t mean he wanted to go anywhere but he needed the passport if he decided to travel. It was his right to apply for a passport.
Asked when he first noticed he had a Thai visa, he said that he wasn’t aware until today that there was such a visa. He was asked how the Tribunal could know it was there but he didn’t. he said that he hadn’t looked at it and didn’t know what country issued the visa.
He claimed that if he returned to China [Mr A] (local government director) and his corrupt gang of government officials and [Mr B] (a hooligan/hitman) and his corrupt gang would beat him to death because he sued them through the courts after they walked free from court after the death of his father. Asked if he had his hukou, he said that he had already provided it. The adviser was asked if he had it and he said that it was probably in his office – he was told that he would be given time post-hearing to provide it.
He claimed that his father was killed because there was a dispute over their building foundation and he brought [Mr B] and [Mr A] before the judge and they were detained for a month but nothing happened to them and they were released. They complained to the authorities to no avail and after the two were released they came to the applicant’s house and harassed the family. His legal representative was also arrested and detained and he had subsequently died. They claimed it was a heart attack but the heart attack came shortly after his detention.
His father died in 2004, he thought it was October but knew it was the [date] of the month. His father was spreading the grains to dry and a neighbour witness saw that his father was stabbed two or three times on the neck. Asked whether anyone was charged given the eyewitness testimony, he claimed that he didn’t understand the question. Asked who killed his father he said it was the hitman. Asked if he was charged and went to court, he said that this occurred. The neighbour gave evidence at court about the assault and stabbing, and he claimed that the accused presented evidence that he was suffering from mental issues at the time and was released from detention after a month.
There was no trial or verdict. It was put to him that someone would not be released because of mental health leading to murder, they would be detained in a facility. He said he didn’t know the details – he only knew that the person claimed after his release that he provided evidence of mental health issues. They only knew this from what their neighbour told them about what occurred, so they complained to authorities.
Asked if he attended court over the incident in which his father was killed, as he didn’t appear to be very certain about what happened at the court, he claimed that there was no trial. His neighbour just provided a statement to the local PSB bureau. It never went to court and they asked the police what happened but there was never any verdict. The local police were just investigating the incident.
It was put to him that this made little sense as country information indicated that police investigate an incident and take it to the local prosecutor if they believe there is sufficient evidence to prosecute. There was an eyewitness who had provided a statement to the police so the Tribunal couldn’t understand why it didn’t go to court. Even if the attacker claimed mental health issues this would still need to come out in court. He claimed that in China they had no say over what police did. They had no power and those in power or with influence stopped the case. They went to the next higher government agency to lodge their complaint about the lack of police action.
Asked how he knew the person was working for the local government, he claimed that [Mr A] requested the transfer of his father’s land in exchange for another piece of land, and then later financial compensation. The land was in a good position so his father didn’t want to sell, which was why the hitman was sent to their house. Asked how he knew this person sent the hitman, he said that the threat was about the land so they were connected.
Asked when he left China, he said it was 2016. Asked what happened in the 12 years between his father’s death and his leaving China that made him think he was at risk. He claimed that every day he and his family were harassed by the hitman and his gang. Every time they went to complain about the lack of police action, the next day someone would come to his house and hit him. The local authority didn’t accept their complaint so they would go every few months to the city government to complain. At one point they went to see the police commissioner. Asked how many times this occurred over the years, he said many times. Asked how many times annually, he said it was four or five times each year.
Asked why he would be beaten to death now given they could have done this any time over those 12 years, he claimed that because he went with his lawyer to the regional capital in 2016 to make a claim against his father’s death. After his lawyer died he had been living in grave fear of being killed in or outside prison. He found out that his solicitor died shortly after Chinese New Year in 2016 after he came to Australia. He asked his mother to check at the solicitor’s house to see if he had been released and found out that he died.
This was February or March 2017 (Chinese New Year 2016). Asked to confirm that he only feared being killed after the death of the solicitor, he claimed that he feared it from the time his lawyer was arrested and jailed. After this local police officers and the hooligans came looking for the applicant at his house. The applicant didn’t believe that his lawyer died from a heart attack as he was unaware that he had a heart problem and wasn’t senior and didn’t look ill the last time he saw him.
He was asked why he didn’t leave China earlier if he was being beaten every few months from 2004 onwards. He claimed that he didn’t fear for his life, they were just warnings. He confirmed that he believed his life was at risk from the time his lawyer was arrested when they went to complain about the local government corruption and embezzlement. They lodged their complaint in 2016. He was asked why it took him 12 years to get to the upper levels of government over this complaint, and he claimed that they were ordinary citizens with no connections.
He was introduced to the lawyer by a friend who could help them to lodge complaints at the upper levels. The applicant said he wasn’t well educated and he didn’t realise they could go to this level until he found this lawyer. He was introduced to the lawyer by a woman from the village next door. He was renovating an old house and was working on this woman’s property – she fell down the stairs as she was old and he took her to the hospital. She was aware of his father and his death and she urged him to go to the upper levels of government.
Asked to provide more detail of the encounter, he agreed she was a doctor who had worked at the mental hospital and told him the truth about the hitman and his false claim of mental impairment. It was put to him that it was a significant coincidence that he renovated the house of, and then helped a doctor who knew of the bribe paid by the hitman. He said if it wasn’t believed there was no point in him making any claims. It was put to him that concerns had to be put to him and the coincidence of the meeting was extraordinary in a country as large as China and could call into question the truthfulness of the meeting claim.
He said their two villages was located within a basin with a river separating them so the village was close. Everyone in the villages knew what happened to his father. He was asked whether she supported their claim and was part of the complaint process. He said that she only introduced him to the lawyer. It was put to him that he claimed she was an eyewitness to the payment of a bribe – this was a key piece of new evidence that wasn’t available in 2004 that could have been taken to higher authority and he was asked if her testimony was taken to the authorities. She obviously wanted the complaint to go ahead as she told him about what occurred and gave him the support of a lawyer to go ahead.

He was asked why she didn’t come forward in 2004 given everyone knew about it, and why she wasn’t a part of the complaint in 2015. He said that China was a country of personal relationships and he didn’t know her before his father’s death. She didn’t pay much attention to what happened to his dad. In 2015 she just told him the fact about the bribe paid by the hitman and all she could do was give him the contact of the lawyer. He didn’t want to get her involved in the complaint. It was put to him that it was hard to believe that he wouldn’t want to get an eyewitness into the case involved.
It was also hard to believe that she wouldn’t have come forward with this information in 2004 just because she didn’t know the applicant personally. She was a doctor who was witness to a bribe to gain a falsified medical document. He again said that China was a society orf personal attachments. If he hadn’t been at her house, saved her and taken her to hospital she would not have felt obliged to tell him this information.
He was asked what had happened to the eyewitness given their testimony was crucial to his case and there was a hitman around who could have killed them at any time. In an allegedly corrupt local government organisation who were opposed to his case that rested on the testimony of one eye witness – if they killed the neighbour the case against the hitman relating to the applicant’s father would disappear. It was strange for a ruthless group that they had done nothing to the witness.
He said that his neighbour was also given warnings but was in his 60s and belonged to a large extended family so he was not afraid of the hitman and his gang. The applicant’s family wasn’t big. He was asked why they still didn’t kill him given they had already killed the applicant’s father, and was also asked whether he had mentioned the neighbour’s large family protecting him, he said that he wasn’t asked at interview.
He had never been arrested by the authorities, and was asked why his solicitor was arrested. He claimed that the local police went to his house to execute an arrest warrant but he was working elsewhere and they didn’t find him. His mother rang him and he never returned to his home. It was put to him that it was strange that the police went to his house during work hours to arrest him when it would have made more sense to arrest him at his workplace.
He claimed that it was after 5 pm and he went to a social activity after work so he wasn’t there. He was asked why they didn’t just wait until he came home, or leave an officer with his mother so she didn’t call him and then wait for him to return. He said he didn’t know what more he could say to the Tribunal to convince it. He had no intention to lie to the Tribunal. He had no idea what the police in the countryside would do. His mother could make an excuse to go upstairs and he didn’t think the police would follow her so she could then make a call.
Asked what crime he was charged with, he said they were allegations of anti-government conduct. Asked if he had received a summons, he said that his family had told him. Asked if he had a copy, he said that the police only presented it to his younger brother. Asked if a trial had bene held, he claimed that he didn’t know as he had no interaction with the police. It was put to him that he could have found out.
There was an arrest warrant for him six years ago so it was likely a trial would have been held (country information indicated they could be held in absentia) and there would be paperwork for the warrant, summons and trial outcome. Country information indicated that many trial outcomes were put online and he was asked what he had done to get documentation in support of his claim. He claimed the member had never lived in China and therefore had no idea. If the government wanted to arrest or detain him, there would be no paperwork. It was put to him that he had said there was an arrest warrant that he had mentioned, so if everything was so secret it was strange that local police had come to his house with an arrest warrant. The two seemed inconsistent with each other.
He claimed that an arrest warrant could be issued without a court as it was the local police. It was a long way away from Beijing. He was asked how he knew that he was on the blacklist as he claimed, and he said that a person who used to train as a [occupation] with the applicant, told him about his name on the blacklist. Asked how he knew, he claimed this person had some connections with government officials who knew this information. It was put to him that this appeared to be very coincidental and he said that he wanted to escape arrest and hid himself but couldn’t do it at relatives’ houses.
He claimed that this person lived in a different town and they had a good relationship so stayed with him to hide. During this time he asked the person to find out information about him held by the government. He claimed he left on his own passport and country information was put to him that it was nearly impossible to leave China if one was on a blacklist. He claimed that he gave a bribe to a border control officer at the airport.
He was asked how he did this and was asked to walk the Tribunal through how he was able to leave the country from the time he got to the airport. He was introduced by his friend to a person at the airport (named [Mr G]) to whom he gave his passport and he took care of everything. He was asked again to walk the Tribunal through each of the actions he took at the airport after he gave his passport to the person.
Asked if he gave the bribe money to the person at or before the airport, he said it was at the airport. He then said it was before he got to the airport. At the airport he gave them his passport and from then on it was their responsibility. He was in the waiting hall then they came and asked him to follow them. They crossed the border and got on the plane. He was asked to walk the Tribunal through from the time he was in the waiting hall to the time he left. He again said he crossed the border and was asked to be more specific. He said he was sitting and had no luggage, just one carry-on bag. It was put to him that he was potentially leaving the country for the rest of his life and he had only one bag – he said he wasn’t intending to stay for the rest of his life.
Asked what airline he flew on he said that he didn’t know. He was told that the name was on the side of the plane and on his boarding card and the flight attendants had uniforms. He said that he couldn’t remember. Asked what airlines flew to Hong Kong he said that he didn’t know. Asked if he went to the ticket counter to check in and get his boarding pass, he said that he didn’t. His contact came with another staff member with a badge and told the applicant to follow him. Asked if he was given a boarding pass, he said that he was given a ticket and told to follow this person. It was his first time on a plane.
Asked where he went from the waiting hall – to customs, onto the tarmac or through a secret door. He said that this person came and swiped his card somewhere so they didn’t wait in a line but he couldn’t remember exactly what happened.
Asked why he came to Australia, he claimed that he didn’t know he was coming to Australia. Asked where he thought he was going, he said that he didn’t know. He thought he may be brought to a western country and would take it from there. Asked why he wanted to come to a Western country, he then said he wanted to come to a foreign country. The interpreter confirmed he had said a western country at first. He said he wanted to get to a safe place. Asked why he came to Australia and didn’t fly to Taiwan with his Taiwanese passport, or Thailand using his Thai visa.
He said it was arranged for him and if he was in Asia without a valid visa he could be deported. It was put to him that he had a Thai visa and he said that he didn’t know he had a Thai visa until he was told today. He was not well educated. He was asked again why he wanted to go to a Western country – did he want to work, go on holiday or what. He claimed that he had a job in China and children there. Asked again why he wanted to come to a Western/foreign country, he said that he feared for his safety in China and wanted to flee somewhere else.
Asked what he told his friend about wanting to leave China, he claimed that before he met his friend he didn’t intend to leave China but his friend told him that if he didn’t leave he would be beaten to death. Asked what he was going to do in a foreign country, he said that he had no concrete plan. Asked if he was just going to stay in the foreign country without doing anything, he said he would look around the country. He was asked what the purpose of this looking around was, he said he was waiting to see if the circumstances in China would get better. He was asked why he thought they would given it had been 12 years. He said this was why he had no idea what to do.
It was put to him that he had arrived on a false passport in October 2016 allegedly fleeing China to avoid being beaten to death, yet he didn’t apply for protection for more than three months after he arrived. He was asked why there was such a delay and claimed that in the beginning he had no idea he had to apply for protection. It was put to him that he arrived on a false passport so couldn’t stay here forever. He also claimed that he wanted the Australian government to protect him form being beaten to death in China so it was reasonable that he could find out how to seek protection. He found accommodation, there was a large Chinese-speaking population from whom he could seek assistance even i9f he didn’t speak English.
He was asked what he did about seeking protection and said that he stayed in his room for the whole period of time and his landlord told him he may be eligible for protection so he did. He said he didn’t originally live with this landlord. Asked what he did himself about finding out his options, he claimed that he didn’t do anything in particular and was just staying in his room. It was put to him that his lack of action in seeking protection raised concerns in the Tribunal’s mind about the truthfulness of his claim.
He was asked again what he said he was charged with in China, and he said that it was being involved in anti-government activities. Asked if it was anything specific, he said no specific details were given. This was all that he was told and knew. He was told about s 424AA and it was put to him that today he had claimed he had been charged with getting involved in anti-government activities. He was asked the same question in his interview and said he had been charged with trying to frame a Communist official. These were two different charges so there was an inconsistency in his account which went to issues of his credibility. He said he had been lodging complaints with the officials and thought that the interpreter had got things wrong. What he had presented today came from the words of the police. He said the interview had been recorded. He was advised he would be given time post-hearing to provide an alternative interpretation of the interview section in question.
He was advised that country information indicated there was large-scale document fraud in China and the death certificate of his father had no security features and he had access to someone who had obtained a Taiwanese passport for him to use. So a death certificate could easily have been forged and the Tribunal had concerns about the genuineness of the death certificate he provided.
He said the Tribunal could enquire as to whether his father was murdered. He was asked if there was any media report of his father’s death that could support his account and he said there wasn’t. he said he could provide the original of the certificate and he was said that he was free to do so. He said he could also provide the family booklet to show their relationship. It was put to him that his father may well have passed away but not murdered, and this was the central issue. The Tribunal was concerned that the certificate was fake.
CONSIDERATION OF Claims and evidence
The applicant arrived in Australia [in] October 2016 on a Taiwanese passport in the name of [Alias 1]. He subsequently lodged a protection visa application on 17 January 2017 under the name [the applicant], a Chinese national. He claims that [the applicant] is his real name and he is a Chinese national. The Tribunal accepts this to be the case and his claim will be assessed using China as his country of reference.
The applicant is a [age] year-old man who claimed that if he returned to China he would be beaten to death by a hitman and associates of his and a corrupt local politician because the applicant was pursuing them through courts for their role in his father’s murder.
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 his 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 he fabricated his claims in order to be granted a protection visa.
Death of Father
I do not accept that the applicant’s father was murdered over a land dispute with a local politician. I considered the applicant’s request to inquire about his death with Chinese but determined that to do so would be impractical both procedurally and in terms of protecting the applicant’s privacy. The applicant has provided a copy of a death certificate in support of his claim however I lend it no weight. Country information indicates that document fraud is very common in China and on a scale unmatched in the world.[1] The applicant’s was able to obtain a fraudulent Taiwanese passport to enter Australia so has the demonstrated ability to obtain and utilise fake documents, and the Tribunal has had regard to this and the country information concerning document fraud in apportioning weight to the death certificate presented to it.
[1] DFAT Country Information Report China – 22 December 2021, p 42.
His account regarding knowledge of the hitman’s bribing of a hospital official to obtain a mental health certificate also lacks credibility given its reliance on an extraordinary coincidence and implausible approach to a new witness. The coincidence relates to the fact that the applicant was renovating the house of an elderly woman in the next village when she fell down the stairs and he saved her by taking her to the hospital. She was, as it turned out, a doctor in the mental health hospital from which the hitman obtained a certificate regarding his mental health. Not only this, the woman allegedly witnessed this event in 2004 and knew that the person killed was the applicant’s father.
Besides the extraordinary coincidence this involved, the Tribunal finds it difficult to accept that having witnessed this corruption she would not have reported it. I do not accept that she failed to do because in China, personal relationships are paramount and she had no such relationship with the applicant so felt no obligation to report the bribe. It makes no sense and the claim put forward by the applicant lacks any evidentiary basis. It also makes no sense that, having then found this new and key eye-witness, he would not include her as part of his more than decade-long crusade to seek justice for his father’s alleged killer.
She was also obviously keen to support him as she told him this information and arranged for a lawyer to work with him. Given the length of time he allegedly sought justice for his father’s killer, and their allegedly constant harassment of him that meant he would have been keen to have legal action taken against them to alleviate this pressure, his subsequent claim that he ‘didn’t want to get this doctor eye-witness involved in the claim lacks credibility.
Because I do not accept that the applicant’s father was killed by a hitman, or that his story about the woman revealing this information to be true, it follows that he would not have required a lawyer to represent him in his quest for justice. As a consequence, I do not accept that the doctor eye-witness guided him to a lawyer, or that this lawyer was detained or subsequently died in prison.
Nor do I accept that the applicant had an arrest warrant out for him, was told by a friend that he was on a blacklist and then had to escape the country using smugglers. He provided no evidence of an arrest warrant, it has also been more than six years since he left China and he was unable to provide any court documents that would indicate that his matter has gone to trial.
I also do not believe his account regarding how he learnt about his name on the blacklist or how he left the country. The blacklist was revealed to him again through an extraordinary coincidence. A friend whom he had trained to be a [occupation] with, and this person had ‘connections’ with ‘government officials’ who knew about his name on the list.
Country information also indicates that it is very unlikely and nearly impossible for someone who is on a blacklist to leave the country. The same information says that it is nearly impossible to leave China without the authorities’ knowledge and that it is difficult to bribe an official if one was to inspect a person’s travel document because of sensitivity to corruption and their relatively well paid status.[2] I also note that the applicant’s story about bypassing security at the airport was unconvincing. He simply claimed that someone came and swiped his card somewhere so they avoided the queue but he couldn’t remember exactly what happened.
[2] DFAT Country Information – China, 22 December 2021, p 40.
For someone who claims to have fled China to avoid being beaten to death, his more than three month delay in applying for protection also raises questions about the truthfulness of his claim. Whilst I accept that he lacked English and may have had no knowledge of how to apply for protection, but he was in Sydney with a large Mandarin-speaking population and could readily have explored options to prevent being sent back to China (given he knew he entered on a false passport and was not validly in the country.
Other Issues
Because I have found that the applicant’s entire account regarding his father’s murder to have been fabricated, it follows that the applicant was never beaten every few months as a warning, his family were never harassed, their land was never taken by a local politician, police never came looking for him to arrest him, and he never complained to higher authorities about the politician.
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 the applicant does not have a well-founded fear of persecution for any s 5(J) reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the applicant’s father was ever in a land dispute or murdered because of it, that the applicant was ever beaten or threatened, on a black list, the subject of an arrest warrant, or that his solicitor was arrested and died, 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 in 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 860

5 January 2023

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