1809383 (Refugee)

1809383 (Refugee) [2024] AATA 4387 (13 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1809383

COUNTRY OF REFERENCE: China
MEMBER:Damien Power
DATE:13 September 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 September 2024 at 6:11pm
CATCHWORDS
REFUGEE – protection visa – China – imputed political opinion – protesting against fraudulent investment scheme – fear of detention – fear of killing – attack on home and business – physical assault – university entry – exit procedures – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 March 2018 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 19 September 2017. The delegate refused to grant the visa on the basis that the applicant was not a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on 17 June 2024 to give evidence and present arguments. The applicant also appeared before the Tribunal at a second hearing on 11 September 2024. The Tribunal hearings were conducted with the assistance of an interpreter in the Mandarin and English languages.
CLAIMS AND EVIDENCE
Background
The applicant is a male aged [age] years of age from Jiangsu province in China. He is of Han ethnicity. He is married and has a daughter. Both his wife and daughter now reside in Nanjing, with his mother.
The applicant maintains contact with his family by phone.
The applicant speaks, reads and writes Mandarin. He undertook all of his schooling in Jiangsu province, completing college and gaining a qualification in [occupation 1].
Evidence before the Department
Migration History
On 28 June 2017, the applicant was granted a tourist visa. The applicant arrived in Australia on that visa [in] July 2017.
On 19 September 2017, the applicant lodged a valid application for a (subclass XA-866) protection visa.
On 13 March 2018, the delegate made a decision to refuse the applicant a protection visa.
Protection visa application
The applicant’s protection visa application provides the following information.
On 15 August 2016, the applicant learned about a company called [name] through the internet. The applicant used the company’s money to invest a large amount. As a director, he wanted to expand the scale of the company.
An entity called [Bank 1] acted as the depository. It co-operated with a law [firm]. [Bank 1] was aware that fraud was taking place but still kept deceiving people.
They finally declared bankruptcy, so they cannot return the principal or interest. After waiting more than half a year, the applicant got no return at all. There was a lot of debt owing. The applicant’s only choice was to unite the victims of the fraud and report the offenders.
The report was sent to [Police Station 1]. The police took no action, and the applicant suspects they had been bribed by criminals. The lawbreakers knew they were collecting evidence and uniting the victims. They finally found the applicant and told him that it was easy for them to make someone disappear in the city. The criminals have a gang background and imprisonment is not hard for them.
China did not offer a safe place to live. The applicant was afraid and came to Australia seeking asylum.
If the applicant returns to China, they will catch him and imprison him. They will beat him to death if they catch him, as they are cold-blooded murderers.
Evidence before the Tribunal
Application for review
On 5 April 2018, the applicant lodged an application for review of the delegate’s decision with the Tribunal. They provided the Tribunal with a copy of the delegate’s decision.
Additional submissions or evidence
The applicant did not make any additional submissions to the Tribunal prior to the hearing.
The hearing
The applicant attended a hearing on 17 June 2024.
The applicant gave evidence about his background, his business dealings, his family in China, and other matters. He also gave evidence regarding his claim that he had been targeted after protesting against financial fraud and uniting the victims who had been defrauded.
Subsequent to the hearing, on 25 June 2024, the applicant provided further documentary evidence in regard to his claims. The email (and a subsequent duplicate email the same day) contain what the applicant has put forward as business documents, a police report and a medical report.
The applicant was invited to attend a second hearing on 11 September 2024 to discuss the additional documents provided by the applicant and other aspects of the applicant’s evidence. The applicant also provided further documentary evidence and a statement of claims at that hearing.
The applicant’s evidence at hearing, where relevant to the consideration of his claims, is discussed in detail under Consideration of Claims and Evidence.
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.
Nationality
The applicant provided a copy of the bio-data pages of his People’s Republic of China (PRC) passport. The delegate was satisfied as to the applicant’s identity and nationality. The applicant has provided a consistent account of their claimed identity. In the absence of evidence to the contrary, I am satisfied as to the applicant’s identity and that their receiving country for the purposes of assessing their claims for protection is the People’s Republic of China. There is no evidence that the applicant is a national of or has a right to enter and reside in any country other than China.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
As noted above, the applicant was invited to an initial hearing on 17 June 2024. After the applicant submitted additional evidence, he was invited to a subsequent hearing to discuss that material and other issues that arose from the first hearing.
The evidence provided at those two hearings will be set out separately for clarity.
First Hearing
The applicant was asked about his family. He said that his father had passed away. His mother lived in Nanjing city in Jiangsu province with his wife and children. He said that they had moved there because of the problems they had experienced in China. His daughter, now an adult, was studying at [a named] University.
The applicant was asked about his employment. He said that he was currently employed as [an occupation 2] for a company that produced [product]. He had been employed in that role for about six years. He had also briefly done some construction labouring after arriving in Australia.
The applicant was asked what he had done for work in China. He said that he had been a business owner. He had two businesses – one business was an investment company and the other was a [business 1] company. He had studied [occupation 1] in China, so he had also worked as an [occupation 1] prior to starting his own businesses.
For a period of time, around three years, he had gone to [Country 1] and worked for the husband of one of his cousins. The cousin’s husband had owned a [factory] and the applicant did some work for them. When he returned to China, he went back to his job as an [an occupation 1]. He was asked what specific work he did as an [occupation 1], and the applicant said that he performed a specific [role] in the [specified] department and reported to a deputy director at his company.
The applicant had previously said that he was a business owner and was asked about the businesses he ran. He said that he ran a small investment company that employed [number] people besides himself. He began the company in 2013. It was essentially a consultancy firm and people would pay him to analyse projects for them. If he found suitable projects, usually smaller projects, the applicant would sometimes also invest in them directly himself. I asked the applicant what sort of revenue his company was generating at the time of his investment in [Bank 2]. He said his take home earnings (after paying salaries and other outgoings) was about [amount] RMB.
The applicant also had a [business 1] company. The company would [conduct operations] in Taizhou, a city the applicant described as being on the upper side of Taixing. That company employed an [occupation 1] and [number employees], [details deleted]. The applicant owned [specified equipment]. He had a friend who essentially managed the business and owned [other equipment]. The applicant earned about [amount range] RMB a year from [this equipment]. The applicant said he had also started the [business 1] company in 2013, a few months after he set up the investment company.
The applicant was asked why he feared returning to China. He said that he had lost a lot of money in a fraudulent financial scheme. When he went to the company to complain, they ignored him. When he went to the police, they listened to what he had to say but did not take any action or make any investigation.
The applicant said that he had invested the money with a government enterprise called [Bank 2]. He was asked how he had learned about [Bank 2]. He said that he had heard about the company from friends but had also seen their promotions. He said his friend was thinking about becoming involved with the scheme, so they decided to invest together.
[Bank 2] raised finance and funding from a number of different sources. They managed projects and when those projects were completed and profitable, they gave their investors dividends. I asked about the applicant’s involvement with [Bank 2], and he said he was only an investor. All up, he said had invested approximately [amount] RMB (or approximately [amount range] AUD).
He made his first investment of [amount] RMB sometime around August or September 2016. I asked what he had done before making the investment. He said that he had done some research online about the company and visited the company’s office. He learned that the biggest investor in [Bank 2] was a very large government bank, [Bank 1]. He learned that [Bank 2] was a subsidiary of [Bank 1]. [Bank 1] had been established for a very long time and the applicant said that this was part of the reason the applicant decided to invest in [Bank 2].
I asked if the applicant had confirmed with [Bank 1] that they had a relationship with [Bank 2]. He said that he had gone onto the website of a government body called the Commercial and Industrial Bureau[1] which the applicant said was responsible for overseeing all the companies and enterprises in the area. This bureau’s website had confirmed that [Bank 1] was the largest shareholder for [Bank 2].
[1] The applicant also referred to this body as the Commerce and Merchant Bureau. For ease of reference, the Commercial and Industrial Bureau will simply be referred to as the Bureau from this point.
I asked what had happened to his initial [amount] RMB investment. The applicant said that it had appeared to do well. They paid the promised monthly dividend for the first two months. The applicant claimed that the dividend had been 20% of the amount invested each month for two months. The applicant had decided to make another, much larger investment of [amount] RMB. He made this payment around November or December 2016. [Bank 2] had promised to pay a dividend monthly, but the payments did not happen. When the applicant went to the [Bank 2], they told him there was an issue with the company’s finances, but they would start paying him again next month.
The dividend for second investment never arrived, and the company stopped paying dividends on the first investment as well. He said that around the end of 2016 or the beginning of 2017, he had gone to the police and the bureau. He told both the police and the bureau what had happened from beginning to end. He had also shown them the contract that he had signed. He had been advised by both the police and the bureau to go home and wait, and they would get back to him.
I asked the applicant how long he had waited. The applicant said that he did not have a chance to wait. He claimed that two days after he had made those reports, someone had broken the window of his home with a brick. He said that this has occurred late at night, sometime between midnight and 2 am.
The applicant said that he had called the police. He said they had inspected the scene and taken photos. They said they would investigate and get back to him. He said that at the time, his daughter was preparing for an important exam to get into high school. In order not to affect her preparation, they had decided to move out of the home into a rental place. The applicant said that they had moved to the rental place sometime in February 2017. He said the rental place was also in Taixing because his daughter was in school in Taixing.
He said that every now and then, people had come to his business. He said that they looked like gangsters and had tattoos. They warned him to mind his own business. The applicant said that he was not only chasing money for himself, but also organising on behalf of other people who had been similarly defrauded by [Bank 2]. He said that he was a sort of leader within the group, which is why he had been told to mind his own business.
The applicant confirmed that people had started showing up at his business after he moved to the rental place. He said that they could not find him anymore at home, so they had come to his business. I asked what the people had said to him the first time they had come. They said that he should mind his own business, and that he should make a choice between his life and his money. He said four to five people had come and that they had smashed a desk and a lamp.
He said he had also spoken to [Bank 1] after the window-breaking incident and after people started showing up at his business. [Bank 1] told the applicant that they had nothing to do with [Bank 2]. The applicant told them that the shareholding chart had their [[Bank 1’s]] name on it. The people at [Bank 1] had said that this was not true, and he should go online to see for himself. When the applicant went back on the Bureau’s website to look at chart, [Bank 1] was no longer on the chart. The applicant said that the company was conspiring with government officials and that the government officials had changed the information. The applicant then said that he realised there was no point pursuing a solution with [Bank 1].
The applicant then claimed that a few days later, he was again visited by people at his place of business. He says that this time ten people came to his business and made threats. He said that they told him that they knew he had been going out and reporting them to different agencies, but that it was not helping him at all. He said that they were implying that these different agencies were all in it together and colluding with one another. The applicant said he believed them because otherwise how would they have known he went to the police and the bureau. The applicant told them he still wanted his money back because he had earned it through hard work. He said he was still sitting behind his desk when several people surrounded him. He was physically attacked. Mostly they were beating him, but when he felt that his clothes were wet and torn, he realised that he had been attacked with a knife.
The applicant said that after the incident he called the police, who again took photos and said they would investigate. The applicant was asked if he went to hospital. He said that he did attend hospital and had to have [stitches]. He was resting on a hospital bed when his wife came to pick him up. He said that they had discussed what to do now. The applicant said to her that if this continues, he could lose his life and that it was a choice between pursuing the money or staying alive. But they had also thought that even if they did not chase the money, bad things could still happen because he had organised so many people to make a petition and fight those who had defrauded them. He said he decided it was better to leave at this point and come to Australia. He was in a rush, so he made an application to come to Australia in April.

The applicant had not made more than a passing reference to the petition to this point, and I asked him where the petition came in. He said that during this time, he had also made a petition. He said that at the entrance to the highway at a toll station, police had stopped them going to Beijing. He said that he was the organiser of the petition, but his car got blocked at the toll station by police. He said there were other people who were successful in getting to Beijing, but when they got to Beijing they were caught. Local police were notified where the two people were from and were told they needed to pick the people up from Beijing.
I asked him when he had started the petition. He said that he had started the petition even before people had started approaching him at his company. He said they started work on the petition after they had reported to the police and the bureau, and nothing had happened. I asked him if he had started the petition after the brick was thrown through his window. He said that he had started it around January or February 2017, after the brick-throwing incident. He said that he had started it even before they had moved to the new rental place in Taixing.
I asked the applicant why he had started organising a petition at that stage, given he had only just approached the police and the bureau. The applicant said that the police had only said they would get back to them, and that he took that as a sign that the police might not do anything and that there was a possibility that the issue would not be resolved at a local level. For this reason, he had started making petition preparations right away. The applicant claimed that several hundred people had signed the petition and that they had included supporting documentation and copies of the contracts they had signed. He claimed that some of the people who had signed were major investors like himself but that there were also a lot of smaller investors.
The applicant said that it was during the preparation stage of the petition that people had found out that he was the organiser of the petition. I asked him how they knew this if the petition was still in the preparation stage and not yet public. The applicant said that he had told the police that if they did not resolve the matter, they would leave him no choice but to make a petition to a higher level of government. He speculated that the police had told the people involved in the fraud or that they had other ways of finding out the information. I pointed out that he had not mentioned telling the police he would petition at a higher level when asked what happened at the police and the bureau. The applicant replied that he did not go to the police and the bureau just once, but many times. He also speculated that the people he was petitioning against may have had him followed.
I asked him when he went public with the petition. The applicant said that it had been around late February or early March. He had met a lot of other people when he went to [Bank 2] to demand his money and he would speak to them. Those people would tell other people they knew who had also been defrauded and word had spread this way. He claimed he had gone to [Bank 2] almost every day over a period of two or three months after his payments had stopped, but that everything had stopped after the knife incident.
The applicant said that they had organised meetings of protestors. At one of those meetings, they had elected two people to go to Beijing and make the petition - a man and a woman. He said these two people went to Beijing around March.
He said that in order to ensure that these two people made it Beijing, they devised a ruse. The applicant knew that the police already had their eyes on him, so they spread the message that two particular people would go to Beijing, when in fact two different people were actually going to Beijing. While the police were following the applicant and this other person, the two people who had actually been elected to go to Beijing were able to make their way there without being intercepted.
The applicant claims that he later heard that the two people had presented their petition, and that accommodation was then arranged for them in Beijing. However, the next morning the two people realised that local police officers from Taixing were in Beijing and had come to collect them. The police picked the two people up and escorted them back to Taixing, where they were held in custody for five days and then released. The applicant said that after people saw what had happened to the two Beijing petitioners, they were too scared to take any further action.
I asked the applicant when the people had been escorted back to Beijing and he said that this had happened in March. I asked the applicant approximately when the knife incident had occurred, and he said that it had occurred sometime around the end of February or the beginning of March. I asked the applicant to confirm that he had proceeded with the petition even after the knife attack. The applicant replied that the petition had happened very soon afterwards.
I said to the applicant it appeared that by March 2017, the petition was effectively over, and asked the applicant if he had done anything else between then and departing China. He said that he had closed down his investments and had not dared to show his face. He sold [some equipment] in his [business 1] company. After he had arrived in Australia, he was short of money and had then sold [other equipment].
I asked the applicant if anything had happened to him during that time. He said he had closed down his company so that they could not find him at his company or his previous home. However, he claimed that he still received messages from his neighbours every now and then saying that they saw people looking him at his previous address.
He also said that after he had arrived in Australia, one of the police officers in charge of his complaint had sent him a message on WeChat. He claimed that the police officer did not know he was in Australia. The police officer had told the applicant that if he continued to pursue his complaint and make trouble, they would have to invite him in for a cup of tea[2]. I asked the applicant when this message exchange had occurred, and the applicant said he thought that it had taken place sometime in August or September 2017. I asked the applicant if he was able to show me those messages, and the applicant said they were on his old phone which he had not brought with him. He said he could check his current phone also but when invited to do so was unable to locate the messages.
[2] A phrase colloquially used in China to describe being taken in for informal questioning by the Chinese authorities – see “10 offenses that could lead to getting hauled in to ‘drink tea’”, Hsia Hsiao-hwa, Radio Free Asia, 31 Jan 2024
I asked the applicant why he had continued with the petition after he had been attacked with a knife. The applicant said that preparations had already begun before he had been hurt by the knife and that everybody involved had already done a lot of preparation. I said that I understood that but asked whether he had not thought it wiser to stop pursuing the matter, considering he had been attacked with a knife in broad daylight. The applicant said there were other people involved and they wanted to pursue their interests as well. I said that given there were hundreds of other people involved, I asked why he had not left it up to others at that point. The applicant said that was not the right thing to do. He had to continue for the sake of protecting himself and others. He was a company investor and others were just individuals. They looked to him to send a message on their behalf.
I asked the applicant if anything had happened to his family since he had been in Australia. The applicant said they had moved to Nanjing. I asked him again if anything had happened to them. The applicant said that they would still receive phone calls from old neighbours saying that they could see people at the family’s old address. I asked him the last time that neighbours had reported people at his old address. The applicant said that the last time was three years after he had arrived in Australia. His neighbour told them that the family had sold the house and no longer lived there. Then the people had stopped coming. He said that his wife had sometimes received phone calls in the first two or three years he was in Australia, telling her to consider whether the money or her life was more important and telling her to stop pursuing the complaint.
It was put to the applicant that I might find it implausible that people would keep attending his previous address for three years in circumstances where he had clearly abandoned the property. The applicant said that he believed they were also there to ask around if anyone knew where the family had moved to, and not just there to find him inside the house.
I asked the applicant if he had a copy of his signed contract with [Bank 2]. The applicant said that it was back at their old address. I asked him what he meant by his old address, and he said the house where the brick was thrown through the window. He said he could get his wife to go and look there.
I asked if he had any documents from that time relating to his investment in [Bank 2]. He said he used to have photos and many other documents, but he never expected that they would come in handy one day. He claimed that before he passed through customs in China, he had deleted every document off his phone. He said that he was worried he would not be able to get through customs if the material was on his phone. I asked him why customs would have checked his phone. The applicant said they were very strict and that even now customs will check your phone. I asked him what customs would have found if they had checked his phone. The applicant said that they would find photos of banners they had made protesting against [Bank 2]. There would also be videos of the wounds he had on his [body] and what the police had done. He said customs would consider it harmful to the reputation of the country.
I asked him to confirm that he had a video of him being involved in a knife attack. He said that his employees had shot videos of him being attacked of people making a disturbance. I asked him if his wife had kept a copy of the material and he said she did not. He said she did not get involved with the incidents that had happened, otherwise she would not be safe in China.
I asked the applicant how he had been able to afford to set up two companies, including paying wages and buying [the equipment], if he had only been employed as an [occupation 1] at a state‑owned enterprise. The applicant claimed that he had borrowed the money from friends and relatives. He also claimed that the [amount] he had invested in [Bank 2] had been borrowed from friends and family. I asked him if he had borrowed the whole amount, and he said he had borrowed about half the amount. He said he had been able to pay it all back.
I asked him how he had been able to pay back such a substantial sum. The applicant said he had sold his [equipment]. I asked the applicant if he had any documents relating to the loans that he had taken out in order to invest in [Bank 2]. The applicant said he had taken out a bank loan and had paid that back and that his wife could download a copy of those records.
I said I was still puzzled about how he paid back so much money. He said it had been a combination of his wife’s wages and the money he had earned here in Australia. I reminded him that [amount] RMB was about $[amount] AUD and would have represented even more money seven years ago. He had also lost all his money when [Bank 2] had failed. The applicant then claimed he had two properties in Taixing and had sold those properties, as well as his mother’s property. He said he had evidence relating to all those sales. I asked him if he had evidence with him today and he said he had not brought it to the hearing.
I asked him if he had anything he wanted to present to the Tribunal today and the application said that he had not made any preparations because he did not know it would be required. He said that he could get evidence to show he owned [the equipment], and that he sold [that equipment] and that he had sold his various properties. He also said he had evidence of an injury on his [body]. I asked him what the evidence was, and he said he had a scar and [stitches]. I said that he may have scars but that what would be most helpful was evidence he got the scars in a knife attack. I asked if he had any hospital documentation or photos. He said that he did have medical records at one time. However, he said that he had not thought they would come in useful one day and so he had not kept them.
I asked him to clarify an earlier remark he had made about getting his wife to retrieve documents from the house where the brick had been thrown. I asked him why he had not taken those documents to the new rental place they moved into after the brick-throwing incident. The applicant explained claimed that he had originally stored all the documents in two bags. He had carried those documents around with him in his car the entire time they lived in the rental property in Nanjing. However, he claims that just before he left China, he snuck back to their old property in Taxing and hid the two bags there. I asked him why he had decided to hide the documents in a house his persecutors knew about and to which he no longer owned or could access. The applicant said he still owned the property and had access to it. I asked him again why he would hide the documents in a place the people who attacked him already knew about. The applicant said that they were only interested in him personally, not in searching his house. They would not search the house because he still owns it. I asked him why he had not sold the house to finance his trip. He said that he had not sold that house because the police and others were always lingering in front of it, so no‑one would buy it.
At this point, I said that I was having trouble understanding his evidence. I asked the applicant why, if police and others were lingering in front of that house, he would go back there and attempt to store documents. The applicant claimed, without explaining why, that he could not keep documents at the rental property. I said to him that it was only two bags of documents, and asked why his wife could not have taken it to Nanjing. The applicant said he did not think of asking her to take it with her everywhere she goes.
I put it to the applicant that he had previously given evidence that he had talked to his wife in hospital after the knife attack and had agreed to stop any further protest activity. However, he then gave evidence that he proceeded with the plan and that gotten people to follow him and another person as decoys, while two other people went to Beijing. He said there was no contradiction and that plans had already been made. He said he had called the group after the knife attack and said they could continue the petition if they wanted but he was going to give up.
I said that he had said something different to me earlier. He said there was a ruse put into effect where the police would follow him and another person while two people went to Beijing. He talked about being actively involved that scheme. The applicant said that he had only put forward an example of what was discussed at the petition planning meeting and that he had not been picked as one of the two ‘fake’ people.
The applicant was asked what would happen to him on return to China. He said that the company was still there, and they may still come after him. I asked him if he could relocate, perhaps to Nanjing where his family was already located. The applicant said that he did not regard Nanjing as home, and that they could afford to buy a home there in any case. He then claimed that the only reason his family was safe in Nanjing was that he was not there. If he went to Nanjing, he would pose a threat not only to his own safety but to his family.
I asked if he could go somewhere else in China. The applicant said that the police can do anything and are very capable of tracking someone down. He claimed the police had said to him that if he were not in China, they would not do anything. However, the police said that if he returned to China, they would have eyes on him all the time.
At the end of the hearing, the applicant was given two weeks to provide any documentation he wished to rely on and was reminded such information would need to be translated in order to be considered.
Second Hearing
The applicant attended a second hearing on 11 September 2024.
The hearing was held in part to discuss some documents that the applicant had sent to the Tribunal after the first hearing. These included a business licence for his consulting company (previously submitted), a business licence for his [business 1] company, a police report and a medical report.
At the second hearing, the applicant also put forward documents relating to his family’s hukou, his daughter’s university entrance, a marriage certificate and an additional statement of claims. He had not put these documents forward in the two weeks he had been granted after the hearing or at any time prior to the hearing.
The applicant was asked why he had not put these new documents forward earlier. The applicant claimed that he thought that only harm relating to himself was relevant. He said that he later found out from others that harm to his family was also relevant. I said that this did not explain why he had not put it forward earlier. The applicant then claimed that his agent had only told him after the first hearing that harm to his family was relevant to his claims. I asked the applicant how long his current agent had been representing him and the applicant said he been representing him for six months. I asked him if he was saying that Mr Zhang had not said to him at any time in the previous six months that putting in documents such as the hukou and university admission outcome might help his case, and the applicant said that was the case.
I will deal with the documents submitted after the first hearing and the documents brought to the second hearing together.
I accept that one of these documents is genuine. It relates to his investment [business] and shows an establishment date of 22 December 2013, which approximately matches the applicant’s statements at hearing that he established this business in 2013. This document was also previously put forward to the Department with his protection application, although that copy was untranslated. The physical document has been photographed and appears to be a physical document (as opposed to a digital copy only). A better-quality photocopy of the consulting business licence document submitted to the Department also shows it to be a colour printed document that appears to have been commercially printed. I accept that the applicant started an investment and consulting company on that date.
The second business licence for his [business 1] [company] not put forward to the delegate (or produced at the first hearing). It is a relatively poor‑quality digital document in a different format.
The applicant was asked why he did not submit the business licence for the [business 1] company along with the business licence for his investment company. He said that it was because it was not his business and that he was only a shareholder. He said that it belonged to a friend. I said that this did not explain why he did not submit the document earlier. The applicant said that his name was not on that second business licence and so he did not include it because he did not think it would help. It was then pointed out to the applicant that according to the translation of the document he had submitted, his name was on the second business licence – indeed, it was the only name that appeared on the document. The applicant disputed that his name was on the second licence saying that this was impossible.

It was clearly restated to the applicant that according to the translation he had submitted, his name appeared on both business licences in the field translated as “Legal Representative”. The applicant appeared surprised to learn that his name was on the second business licence. The applicant had to take a moment to consult the copy of the second business licence on his phone.
After consulting his phone, the applicant was then agreed that his name did appear on the second business licence. I said the fact that he was unaware of some basic information on those documents relating to companies he was closely involved with may lead me to doubt the credibility of those documents. The applicant stated that the documents were genuine. The applicant then claimed that his friend had owned the [business 1] business, but it had been temporarily put into his name so that he could obtain loans from the bank to buy vehicles for the [business 1] company. He claimed they could not have obtained the loans if his name were not on the business licence.
I put to the applicant that he had put forward this document to the Tribunal recently. The document was also dated 2015, so the change was not a recent change. He was asked again why he had not put it forward earlier and why he was so surprised that his name appeared on the document.
The applicant claimed that he had forgotten about the amendment to the business licence and that was why he was surprised by his name appearing. He then said that it was only after the first hearing that he understood what sort of documents would be required. I put it to the applicant that he had already put forward one business licence document. I said I was not understanding why he would supply one business document and not the other. The applicant still did not address the question, stating instead that he could put forward other documents regarding the [equipment] he had purchased for his [business 1] business.
As noted above, the applicant submitted his first business licence to the Department back in September 2017. This second business licence appeared to contradict a key timing in the applicant’s account at the first hearing. The applicant claimed that he started his investment business in 2013 and that he started his [business 1] business just a few months later and also in 2013. He stated at hearing that there was not much gap between the two companies in terms of their commencement dates. He confirmed that information again later in the hearing when discussing his [business 1] company, stating that he started the [business 1] company several months after his investment company and ‘basically started the companies together. However, the business licences supplied state that the investment company was set up in December 2013 and his [business 1] company was apparently set up 19 months later on 22 July 2015.
I reminded the applicant that he had previously said a number of times that the businesses were both established in 2013 and asked him if that was still correct. The applicant confirmed that it was. I asked the applicant why was there was such a discrepancy between the establishment dates of the two companies according to the business licences – they showed the two companies were established 19 months apart.
The applicant initially speculated that the July 2015 on the second document could relate to the date the information on the second licence was amended. I said that this was not what the document said. It clearly referred to the July 2015 date as the establishment date of the company – it was not referring to any amendment of particular details.
The applicant said that he could not remember exactly and that he had not mentioned specific dates when talking about his companies. I put to the applicant that while he had not specified a date, he had specified both companies were started in 2013, and had underlined that in other ways by stating that there was not much distance between the two companies ‘datewise’ and that they were ‘basically’ started together. I said that these documents stated that there was in fact 19 months between two dates of establishment of the two companies. I said that I did not wish to appear combative, but the late production of this document and the significant date discrepancy it raised may lead me to question the genuineness of the document, so I was obliged to put this to him. The applicant then said there might have been a ‘yearish’ between them. I said that the gap was not even a year but 19 months. The applicant claimed that he was only speaking approximately about the dates of the company.
While I allow for some fuzziness around dates after so much time, the applicant consistently stated in explicit terms that the companies were started within a few months of one another and both in 2013. He also confirmed that in impressionistic terms by employing phrases such as ‘basically started them together’ and ‘not much distance between them’ in terms of dates.

100. I asked the applicant again why the [business 1] business had been changed into his name, and the applicant said that it had been necessary to obtain a loan from the bank. I said that we had gone through the setting up of his companies in some detail and he had not mentioned needing to change the name on the [business 1] business licence in order to obtain a loan. He said that he had not remembered about the loan.
101. I asked the applicant who he was saying had originally owned the [business 1] company. He said it was owned by a friend and named that person. I put it to the applicant that there was no indication on the document to indicate that it was a reissued licence or amendment to an existing record. The applicant said that the amendment would be reflected on the business deed for the company and claimed that the changes would be recorded elsewhere.
102. The applicant appeared to have access to a physical copy of the first deed to the consulting company but only had a digital copy of the second deed. The applicant was asked why he had not also taken a photo of the physical licence document for the [business 1] company. The applicant then claimed that after the bank loan had been obtained, the company’s name had been changed back to his friend’s name and so he was unable to access the physical copy.
103. The applicant was asked why he had not provided the police report earlier. The applicant said that his agent had not been told by his agent to provide this document. It was pointed out to the applicant that without prompting, he had previously provided other documents relevant to his claims, and even provided some documents to the department. I said I might therefore have difficulty accepting, even without professional advice, he would not have thought to provide a police report which he claims evidences the fact that he was attacked by ten men and wounded by a knife. The applicant said he did not think of it, and that he was not smart enough.
104. I said that I was having great difficulty with his explanation in regard to the police report particularly. I said that he was claiming that he was persecuted due to his petitioning activity and that he was forced to leave China for his own safety. He was aware he could submit documents in relation to his case and had in fact done so. I said that in those circumstances I was having great difficulty understanding why he would not also put forward a police report which was so central to his claims, and which he says establishes that ten men came to his company and that one of them had stabbed him. The applicant again claimed that it was only after the first hearing that he had gone back to his agent and asked him why he had not been told he could supply such information. After the first hearing, he also reflected and thought about what further information he could supply.
105. The applicant was asked at hearing whether he had any documentation relating to his hospital visit after the alleged knife attack, and the applicant replied that he had not retained any medical documentation because he did not think it would be needed in the future. When this was put to the applicant, he claimed that his wife had personally gone back to the [specified] hospital in Taixing and with the aid of friends had managed to covertly obtain a copy of the medical report.
106. In regard to the police report, the applicant claims the police attended his place of business after the knife attack, took photos and said they would get back to him. However, the police report merely states that the applicant phoned the police to report an attack and gives no indication that they attended the scene. The applicant also consistently maintained the police were in league with his persecutors and worked to cover up their crimes. In those circumstances, it is not clear why the police would issue him with any sort of written evidence confirming their knowledge of a serious crime that was connected to the fraud.
107. I put it to the applicant that according to his evidence the police had assisted his persecutors to target his home and then stood by and did nothing to investigate when he was knifed in his own workplace. I was therefore having trouble seeing why they would baulk at refusing to issue a police report, or at least modify it in some way. This was put to the applicant who claimed that the police were duty bound to issue some sort of report by their governing regulations.
108. The applicant was asked about the significance of the hukous. He said that because of him, his wife had been looked down on and subject to prejudicial behaviour and discrimination at her workplace. She was depressed and did not want to remain in a relationship with him. His wife had taken herself of his hukou without telling him and registered her hukou back in [a location in] Taixing. He said she is still living in Nanjing but updated her hukou. The applicant claimed that changing the hukou in this way was a big step and signalled that his wife was seeking to end their relationship. I asked the applicant if he had a divorce certificate or other evidence that their relationship had ended. The applicant said, “not yet”. I said that hukous were a household record and that he had been absent from China for seven years. In that sense, it did not seem unusual on the face of it that her name was no longer appearing on his hukou or that she had updated it. The applicant responded that there were cultural differences in China and this change was significant.
109. The applicant said the fact that his wife had taken herself off his hukou without telling him had devastated him. I pointed out to the applicant that she let him know – in fact, she had sent him a copy of the hukou. The applicant then said that he had begged the information from her. He said he had only found out about the change recently. I asked the applicant how he had found out about the change if she had done it without telling him. She said his daughter had needed to show the hukou to her school and he had found out that way. He claims he confronted his wife who only then revealed to him that she was discriminated at work and was denied pay rises and promotions.
110. I asked the applicant about a further document that the applicant put forward at hearing regarding his daughter apparently being refused entry to university. The applicant said that this university was his daughter’s first choice. It offered a scholarship and would even have paid his daughter a salary. However, because of his problems she had been refused entry. The applicant said that the school had discovered his record of protesting and petitioning, and she was not admitted to the university. He said he had to switch to a different university and now studied medicine.
111. I asked why the applicant had not put this information about his daughter forward at the first hearing. The applicant repeated his assertion that he had only recently learned that harm to his family members could be relevant, so he had not thought to include it. I put to the applicant that I was finding it difficult to accept that he would not think to mention his daughter’s issues at the first hearing. The applicant repeated his contention that his representative had not told him to put this information forward and that he did not think it was relevant. I said to the applicant that as a parent, the news of his daughter’s problems at the university must have affected him and I would have expected it to be at the top of his mind. I said that I may not find it plausible that he would not think to mention his daughter being refused entry to a university she dearly wished to attend because of the issues he faced with authorities, and this may lead me to doubt the credibility of the information. The applicant again repeated that it was only because of the discussions in the first hearing that it had occurred to him that harm to his family members might be relevant and had discussed it with his agent.
112. I put to the applicant that, leaving aside the issue of harm to his family members, the daughter’s claimed refusal to University was relevant to his situation because it potentially helped establish that he had an adverse profile with Chinese authorities. I asked why he had not put it forward on that basis. The applicant did not address himself to this particular issue directly but simply said he did not think it would be relevant. I said I understood the claim he was making not to have understood that harm to his family members was relevant, but this university document potentially established that he had a profile with authorities and asked again why he did not put it forward on that basis. He said that he only realised after the first hearing that a lot of this information would be relevant.
113. I asked the applicant how he had been able to leave the country if he had a profile sufficient to prevent his daughter being refused entry to university. The applicant said that he only left China a couple of months after the ‘incident’ and that was very quick. I said that the incident where people had been arrested was March and he had left in June, and that appeared ample time for the Chinese authorities to be aware of his profile and prevent him leaving the country. He claimed that they did not realise at that time and things had only got more intense afterwards. I said that he had been monitored him constantly in Taixing and police had gone to Beijing and detained others involved in the protest in March. I said I was having difficulty understanding how he could not have been on their systems by the time of his departure.
114. It was put to the applicant that a US Department of State report from around the time of his departure from China notes petitioners as one of the groups who “routinely reported being refused passports or otherwise prevented from traveling overseas[3].” I said the fact that the applicant was able to depart on a passport in his own name in July 2017 and had not reported any issues may lead me to conclude he did not have a profile with authorities. The applicant then said that he had left from Shanghai, rather than Jiangsu province, and that is why he had not had an issue. It was put to him country information indicating that Chinese authorities had a nationwide system of exit controls and knew when people entered or departed China, and that someone on a control list or exit list would find it almost impossible to leave China from a major port or seaport[4]. The applicant said that maybe his case was not big enough [to warrant his departure being prevented]. I pointed out that according to his evidence, his case was big enough that three years after his departure, his daughter was denied entry to university. The applicant re-stated that he had somehow managed to leave China. He also referred again to being called contacted by police on WeChat when he was already in Australia and told that they would call him in for a chat if he kept petitioning.
[3] 'Country Report on Human Rights Practices 2016 - China (includes Tibet, Hong Kong, and Macau)', US Department of State, 03 March 2017, OGD95BE926885
[4] 'DFAT Country Information Report - China 21 December 2017', Department of Foreign Affairs and Trade, 21 December 2017, CISEDB50AD7983
115. The applicant had consistently maintained at the first hearing that his wife and family were safe because his persecutors were only interested in him. He further stated that this wife and family were safe in China because he was not there, but they would be placed in jeopardy if he returned to China. Country information was put to the applicant that the family members of petitioners were often targeted as well, and that children of petitioners were subject to sanctions such as being prevented from attending school for a period. The applicant had not mentioned any issues like this impacting his family and this may lead me to conclude that he had not been targeted in China due to his petitioning activity. The applicant said that he did not think the authorities would not stop someone attending school, but the university refusal was true. I put to him instances in which family members of petitioners had been beaten, and an instance in which a petitioner’s child had been prevented from going to school and regularly monitored when she was allowed back at school[5]. I said I might find his claim that his family were safe from harm in Taixing not to be consistent with country information. The applicant said it was true that no physical harm befell his family, but that they moved to Nanjing to escape.
[5] 'China Human Rights Briefing October 21-26, 2011', Chinese Human Rights Defenders (CHRD), 27 October 2011, CX275249; 'China Human Rights Briefing September 13-20, 2011', Chinese Human Rights Defenders (CHRD), 22 September 2011, CX273057
116. The applicant was reminded that in the first hearing he was asked whether anything had happened to his family after he had arrived in Australia and he had said that nothing had happened to them. He said only that his family had moved to Nanjing. When the question was put to him again, he said that neighbours had called them and told them that there were people at his old address. I said that he had not reported any of the issues that he now says his wife and child faced, despite being specifically asked about his family’s welfare. The applicant said that he had not mentioned the issues with his wife and daughter because he thought I was referring to physical harm and they had not been beaten or physically assaulted. It was put to the applicant that the questions had not specified physical harm. I also said that I might find it implausible that a parent could be asked in general terms about harm to his family and would not think to mention that his daughter had been prevented from going to her preferred university because of him, even if his representative had not explicitly discussed this with him. The applicant said again that he thought I was referring to physical harm only.
117. I do not accept the applicant’s explanation for not putting these documents forward earlier. It has been more than six years since his application was refused by the Department in March 2018. The applicant was on notice at that time that his application had not succeeded on the basis of the information he had already put forward. The applicant was also clearly aware he could put forward documents to support his case and had done so earlier to the both the Tribunal and the Department. The police report, medical report and university refusal, if genuine, were directly relevant to establishing his fear of harm and I do not accept as plausible that the applicant would not have understood their significance to his claims or would not have considered them relevant.
118. Country information was also put to the applicant regarding the prevalence document fraud in China. While the general prevalence of document fraud in China is not proof that a specific document is fraudulent, it does indicate a need for caution when dealing with documentary evidence. The documents put forward by the applicant are digital copies only. Very little can be reliably gained from them about their manufacture, provenance or security markings.

119. I have considered the [business 1] company business licence. Given the manner in which this document has been introduced, the considerable delay in putting it forward, and the extent to which the information in it contradicts or conflicts with key elements of the applicant’s verbal evidence at hearing regarding the establishment of these businesses, I am not satisfied that this document is genuine, and I place no weight on it.
120. The hospital report and police report are photocopies only. Neither the police report nor the medical report is set out on any sort of official letterhead, nor do they have any identifiable security features. It is not possible to determine whether these documents carry genuine wet seals or whether they have been printed commercially (as opposed to merely photocopied or composited some other way).
121. In relation to the late production of these documents generally, it was put to the applicant that given the prevalence of document fraud in China, the considerable delay in putting some of these documents forward and the fact that they were only produced to the Tribunal after concerns were raised with the applicant’s account may lead me to doubt the genuineness of these documents. The applicant again repeated that he had not been told by his agent what to put forward and that he had not considered that harm to his family members might be relevant to his account. However, I note that the [business 1] business licence is related directly to his business and not to any secondary harm related to his family. However, the applicant did not offer a clear explanation for why he did not put forward the second business licence at the same time produced the licence for the consulting company.
122. Noting the prevalence of document fraud in China, and given the considerable delay in putting these documents forward, the fact that they were only produced to the Tribunal after concerns were raised with the applicant’s account, and the inadequacy of the applicant’s explanation for not producing them earlier, I am not satisfied that the [business 1] business licence, medical report and the police report documents are genuine and I place no weight on them. In the case of the second business licence, the information on it also appears to contradict the applicant’s evidence at the first hearing.
123. I have considered university admission document and the hukous provided by the applicant. Again, given the manner in which these documents have been introduced, the considerable delay in putting them forward, and the applicant’s failure to mention at his previous hearing the issues that he claimed his wife and daughter faced after his departure from China, I am not satisfied that these documents are genuine and place no weight on them.
124. The applicant had also submitted another untranslated document to the Departmental delegate that he did not submit to the Tribunal (or refer to at either hearing). As this document has not been provided in translated form, I am unable to consider it. The applicant also included his marriage licence but did not refer to this document at hearing or otherwise state how it was relevant to his claims. In the absence of information to the contrary, I will assume that it was put forward as evidence that he is married and of the name of his spouse.
125. At the end of the second hearing, the applicant said that he could also produce other documents. The applicant was advised that he had now had ample opportunity to lodge additional information and that no further extensions of time would be granted. However, he was advised that anything submitted to the Tribunal before a decision was made would be taken into account.
Findings
126. I have considered the applicant’s evidence, which in many respects was lengthy and detailed. However, there are a number of issues with the applicant’s account. As his evidence progressed, some significant discrepancies emerged, and aspects of his account were implausible.
127. The applicant gave conflicting accounts of his involvement in the latter stages of petitioning, and the taking of the petition to Beijing. He previously stated that he and another person had acted as decoys, while two other people who had been ‘elected’ at a meeting went to Beijing. He also stated on more than one occasion that his car had been stopped a toll station on the way to Beijing but that the two people elected to go to Beijing had managed to make it to the capital successfully and present the petition.
128. As set out above, I put to the applicant that this evidence also contradicted earlier statements that he had a discussion with his wife in the hospital after his knife attack, and they had agreed to cease pursuing the money and that he then quickly made efforts to come to Australia. The applicant then claimed that organisation for the Beijing trip had already been in train, and that when he pulled out events had proceeded without him. He claimed the ‘ruse’ he had referred to earlier was just an example. He then said that two other people had been decoys and he was not one of them. However, he previously gave very specific evidence that he was an active participant in the alleged scheme to help petitioners to get to Beijing, He talked about taking advantage of the fact that ‘all eyes were on him’, and specifically referred to his being stopped at the toll station on the highway to Beijing. I do not accept his explanation for this contradictory account of events.
129. The applicant also made a number of statements that his wife was somehow unaware of what was happening with his petitioning and that he kept her deliberately shielded from what he was doing in order to protect her. I found these statements to be wholly unbelievable. If the applicant’s account is to be believed, his family had a brick thrown through their window and were forced to move, the applicant organised a petition involving hundreds of people, visited the bureau and / or [Bank 2] on an almost daily basis for two or three months, carried two bags of documents around with him in his car relating to the alleged fraud matter for the whole time they were renting in Nanjing, and was knifed at his place of work by thugs and visited by his wife in hospital. I do not accept as plausible the idea that his wife would not be aware what was going on or that she would not have pressed him for details about what had occurred simply on the basis of the brick-throwing and knifing incidents alone. His statements in this regard are also at odds with his earlier statements that when his wife had visited in him hospital, they discussed whether to pursue the money or leave the fraud matter alone, and that the issue of the petition he had allegedly organised had given them concerns that bad things might still occur even if he stopped pursuing the matter.
130. I also do not accept as plausible the applicant’s various explanations for why his persecutors were able to locate and throw a brick through the window of his house just two days after he first approached the police, but were unable to locate the house the was renting in the same town in the many months he lived there prior to departing China. The applicant claimed that the police would not help his persecutors to find his new rental accommodation because they would cover up crimes but would not assist people to kill him. I find this distinction difficult to accept in circumstances where the applicant claims that police apparently were willing to ignore a serious knife attack in broad daylight that might have killed him, and openly aid his persecutors in a number of other ways.
131. The applicant also claimed that the police would find him if he returned to China, even if he went to another province or went to live in Nanjing. It was put to him that he had previously claimed that police would not help his persecutors find him at his new address in the same city (Taixing) but now seemed to be saying the police would help people locate him even if he moved to another city or another province entirely, and that those statements seemed to contradict one another. The applicant did not directly address the discrepancy, claiming that he had been blacklisted and was no longer welcome back in China.
132. The applicant has also been unable to provide any documentation related to the money he claimed to have invested in [Bank 2], the loans he claims he took out to invest in [Bank 2], the petition he organised or some of the other matters he raised at hearing.
133. The applicant was asked about documentation relating to his claims. As noted above, the applicant said that he had not brought any documents to the hearing. When asked if he had any other relevant documents, he claimed he had deleted everything off his phone before departing China. When asked about other documents, he claimed that he had stored them into two bags that he took with him everywhere but had decided (just prior to leaving China) to stash the document bags back at the house that had allegedly had a brick thrown through the window.
134. I consider it plausible that the applicant may wish to delete some photos relating to protests, or other obviously contentious documents from his phone before passing through Chinese customs. However, I do not accept as plausible the applicant’s claim that he deleted every single document relevant to his claims from his phone just prior to leaving China. I find it especially implausible that he did so without attempting to make copies of any of any of those documents, especially given his claim he had spent months carrying around two bags of relevant documents and had risked going back to his previous residence to hide them rather than abandon those documents. On a related point, I find particularly implausible his claim that he carried around two bags worth of documents in his car for the whole time he remained in Taixing after the brick-throwing incident but cannot now readily access those documents because he chose to secrete them back at the house where the brick was thrown - a location known to his persecutors which he claims they monitored closely at the time, and which he claims they continued to monitor for years afterwards.
135. I also find implausible his claim that people attended the property where the brick was thrown for three years afterwards in an attempt to locate him. By the applicant’s account, he had not resided at that house for some years, and his alleged persecutors had not been successful in finding him there. He claimed that his persecutors already knew the applicant’s place of business and had apparently been able to target him there instead. The applicant also claimed that his persecutors had contacts in the police who would have easily been able to ascertain that he had departed China long ago (and not returned). I do not accept there is a plausible basis for his persecutors continued to visit his abandoned home in Taixing for three years in an apparent effort to locate him.
136. I note that subsequent to the hearing the applicant did provide documents that he claimed were his business licences, as well as an alleged police report and an alleged hospital report. He also provided copies of hukous that he put forward as evidence of a rift in his relationship with his wife, and a document that he claims shows his daughter being refused entry to university. However, for the reasons set out above I do not accept those documents as genuine. Some of these documents also conflict with his testimony in specific ways or have other issues. However, in general, I do not accept that the applicant’s explanation that he did not think that the issues purportedly evidenced by the documents could be relevant to his claims, especially when the applicant stated that he had representation and in circumstances where he had previously put documentation before the tribunal. As an example, I particularly note the police report and find it entirely implausible that the applicant would not have understood the direct relevance of this document to his claims. I also note the applicant’s failure to initially provide the second business licence in circumstances where he had already considered it relevant to provide his first business licence.
137. I do not accept the applicant’s account of events as plausible. I do not accept that he invested a significant sum in a failed or fraudulent investment scheme. I do not accept that he protested that fraud and was targeted as a result. I do not accept that he would face any harm on return to China on the basis of those claims or for any other reason. I base this finding on the issues noted above and summarised below:
·     The applicant’s inability to produce documentation relating to matters central to his claim to have petitioned, such as the loan agreement with [Bank 2] or the documents relating to his petitioning, and the implausibility of his explanations for being unable to do so
·     The applicant’s failure to provide potentially probative documents which the applicant clearly stated that he could provide or which he volunteered to provide – such as a printout of records relating to his bank loan(s)
·     His conflicting evidence that he ceased all involvement with the petition after the knife attack versus his statements that he later participated in a ‘ruse’ and his car was stopped at a toll booth on the way to Beijing
·     The implausibility of his evidence that he snuck back to his old home and stashed all his documentation on the fraud matter in a house where (by his account) he had previously been attacked, which was known to his persecutors, and which he knew was being monitored by the police and others at the time
·     The implausibility of his evidence that his wife was essentially unaware or unclear about the details and the extent of his involvement in the fraud matter and subsequent petition, despite allegedly having had to move her family to a new home after a brick-throwing incident, her husband allegedly having organised and led a petition that attracted hundreds of people, having allegedly visited her husband in hospital after a knife attack, and despite having watched her husband allegedly liquidate his businesses, homes and other assets in order to raise money to leave China
·     The implausibility of his claim that people looking for the applicant would continue to search for him for several years at an address he had clearly abandoned, and in circumstances where their claimed associates in the police force could easily have determined that he had left the country long ago
·     His failure to produce earlier documentation that he later relied on in circumstances where the client could reasonably have been expected to see the direct relevance of the documents to his claims
·     His failure to raise at the first hearing the problems he claims were later faced by his family after his departure from China despite explicitly being asked about their welfare, and the inadequacy of his explanation for not putting forward these claims (and associated documents) earlier
·     The fact that he was able to leave China on a passport in his own name despite claiming to have a profile at that time and despite country information indicating that persistent petitioners are routinely prevented from leaving the country
138. 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).

140. I have considered the applicant’s claims under the complementary protection provisions. As noted above, I am not satisfied that the applicant was affected by a fraudulent scheme, that he was involved in a protest or petition against that fraud, or that he (or his family) would suffer any harm on that account on return to China. I am similarly satisfied that there is not a real risk he would suffer significant harm for those (or any other) reasons if returned to China.
141. The applicant has not put forward any other claims that would engage the complementary protection criteria.

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

143. The Tribunal affirms the decision not to grant the applicant a protection visa.
Damien Power
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.
…

[2024] AATA 4387

13 September 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice