1814485 (Refugee) - [2024] ARTA 804

1814485 (REFUGEE) [2024] ARTA 804 (12 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 1814485

Tribunal:General Member M Tubridy
Date:12 December 2024

Place:Sydney
Decision:The Tribunal affirms the decision under review.

Statement made on 12 December 2024 at 1:07pm
CATCHWORDS
REFUGEE – protection visa – China – imputed political opinion – allegations of criminal activity – extortion by chengguan officials – corruption – fear of killing – exit procedures – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
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 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister on 8 May 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The application for review was lodged with the Administrative Appeals Tribunal (AAT) on 18 May 2018 under a cover letter from the applicant’s then migration agent, Mr H, who the applicant appointed as his representative to the Tribunal. This attached a copy of the refusal notification issued by the Department of Home Affairs (the Department), and also a copy of the delegate’s decision. The Department was then required to provide the Tribunal with such documents in its possession or control as were considered relevant to the review. This it did, and this included copies of: the applicant’s September 2017 protection visa application (including the protection claims submitted by the applicant in writing by way of a statutory declaration; a copy of the applicant’s passport pages; and a form appointing Mr H to act as the applicant’s representative to the Department); a 4 April 2018 email from Mr H which provided documentary evidence to the Department; an audio recording of the applicant’s 18 April 2018 interview with the delegate (conducted with the assistance of an interpreter of Mandarin Chinese and English); associated correspondence and administrative documents; and a further copy of the delegate’s decision.
On 21 May 2018 the Tribunal emailed the applicant (via his representative) with an acknowledgement that his application for review had been received. In doing so, the Tribunal also advised the applicant that if he wished to provide further material or written arguments for the Tribunal to consider he should do so as soon as possible. No such further material or information was received from the applicant in response to this invitation, and the only further evidence the applicant would provide to the Tribunal would be presented orally when he appeared before the Tribunal at a hearing some six years later in January 2024.
The Tribunal did thereafter receive occasional emails from the applicant’s representative which requested, on the applicant’s behalf, that the Tribunal provide a letter to enable the applicant to maintain access to Australia’s Medicare universal health insurance scheme (and the Tribunal provided a letter of this kind in each instance), but these requests gave no indication, nor was it otherwise apparent, that these requests had any relevance to the applicant’s protection claims or to the review more.
On 31 May 2023 the Tribunal emailed the applicant, via his then representative, and advised that the applicant’s file was being prepared to be given to a Tribunal member. The applicant was asked to assist the Tribunal by completing and returning a pre-hearing information form within 7 days. On 6 June 2023 the Tribunal received a response to this in which the applicant indicated that he was willing to attend a hearing. Asked if he wished to provide any additional evidence or reasons why he feared return to his country, he referred the Tribunal to such documents as had already been submitted to the Department and the Tribunal.
On 6 December 2023 the Tribunal emailed the applicant, via his then representative, and advised him that it had considered the material before it but was unable to make a favourable decision on this information alone, and that he was therefore invited to appear before the Tribunal on 19 January 2024 to give evidence and present arguments relating to the issues arising in his case. The applicant was advised to reply within seven days to confirm that he would attend this hearing, and that by 12 January 2024 he should have provided the Tribunal with all the documents he intended to rely on to support his case. He was also advised to have regard to the decision made by the Department, and to advise the Tribunal of any changes to his circumstances.
On 8 December 2023 the applicant’s then representative emailed the Tribunal and advised that that the applicant had instructed that he would like to withdraw his application for review of the decision to refuse to grant him the visa. Attached to this was a withdrawal form signed by the applicant that same day, 8 December 2023. Some hours later, a further email was received from the applicant’s then representative, and this requested that the previous email (the withdrawal notification) be disregarded as the applicant would like to continue his application and attend the hearing; and a form attesting to this in writing was attached signed by the applicant that same day, 8 December 2023.
On 11 December 2023 the applicant emailed the Tribunal and submitted as follows: ‘In September 2017 I applied for a Protection Visa, and in May 2018, the Department refused me. My friend found an agent for me and submitted the AAT review application. Recently, my friend told me the AAT invited me to the hearing, but now I cannot contact my friend anymore. I am worried about my case status. Please refer to the attachments and update my personal information.’ I did not find this persuasive. The applicant’s application for review had been submitted by the same migration agent as had been representing the applicant since his protection visa application was lodged in September 2017; and it was difficult to believe that the applicant had not been promptly and directly informed of the hearing invitation by his former migration agent given the history of the applicant’s communications with the Tribunal via this person. Regardless, the Tribunal immediately emailed the applicant a further copy of its 6 December 2023 hearing invitation. The applicant replied that same day, 11 December 2023, with confirmation (as per his previous response of 8 December 2023) that he would attend the hearing scheduled for 19 January 2024.
On 19 January 2024 the applicant appeared before the Tribunal to give evidence and present arguments (and this hearing, hereafter the January 2024 hearing, was conducted with the assistance of an interpreter of Mandarin Chinese and English). At this hearing, the Tribunal asked the applicant if he could explain why on 8 December 2023 his former representative had communicated to the Tribunal that he (the applicant) wished to withdraw from the review. The applicant submitted that his migration agent had advised him that he had little chance of success owing to his lack of evidence, and that he had better give up. The applicant submitted that he had felt confused at the time, and so he had agreed, but later he regretted this and thought he should not give up. The applicant said that at the time he had also felt very nervous about the prospect of appearing before the Tribunal. Given how all this has unfolded I am not satisfied that the applicant can be relied upon as an entirely accurate source of information about what occurred in this regard. This noted, given that the applicant indicated that one of his reasons for momentarily deciding to withdraw from the review (on 8 December 2023) was that he felt nervous about the prospect of appearing before the Tribunal, I consider that the applicant’s former migration agent was keeping the applicant updated about Tribunal communications like the hearing invitation of 6 December 2023.
At the 19 January 2024 hearing the applicant indicated that he feared returning to China for just one reason and that this was (as had been his claim since September 2017) that he feared arrest upon return to China as a result of his having been framed by a local official as the leader of an organised crime gang, and that the official had done this because the applicant had (with the assistance of some friends with whom he had served in the army) been standing up against this official when he sought to extort money from local shopkeepers. The applicant gave evidence about this, and the Tribunal put several concerns to the applicant, and he provided responses for the Tribunal to consider. The applicant was advised that he could make a request for additional time to respond to the Tribunal’s concerns whether in writing or at a resumed or a further hearing. The applicant indicated that the only other evidence he would want to provide would be documentary evidence to establish his claim that some of his friends were arrested and jailed for [term] following his departure from China, but that he would need to contact these persons to discuss whether this was possible. I advised the applicant that the Tribunal would undertake not to make a decision until after 2 February 2024 and that if he decided he needed more time he could make a request for this (that is, for the Tribunal to give an undertaking that no decision would be made until after such a date as he might wish to provide his further evidence by). The applicant was also advised that the Tribunal would consider any further evidence or information which he provided before it made a decision on his matter. Nothing further was, however, ever received from the applicant.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for 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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
Receiving country
The applicant has consistently claimed to be a citizen of China who was born in China’s Fujian Province to parents who were both citizens of China, and that he is ethnically Han Chinese. I note that the Nationality Law of the People’s Republic of China 1980 (Article 4) provides that: Any person born in China whose parents are both Chinese nationals or one of whose parents is a Chinese national shall have Chinese nationality.[1] The applicant has provided a copy of his People’s Republic of China (PRC; or China) issued passport which confirms he was born in China’s Fujian Province and which presents his nationality as: Chinese. I accept that the applicant is a national of China, and I find China to be his receiving country for the purpose of this review.
[1] Low, C.C. 'Report on Citizenship Law: China and Taiwan', Robert Schuman Centre for Advanced Studies, October 2016, 20190212133821, p.9.
Protection claims
As has been noted above, at the 19 January 2024 hearing the applicant indicated that he feared returning to China for just one reason and that this was (as had been his claim since September 2017) that he feared arrest upon return to China as a result of his having been framed by a local official as the leader of an organised crime gang, and that the official had done this because the applicant had (with the assistance of some friends with whom he had served in the army) been standing up against this official when he sought to extort money from local shopkeepers.
The applicant’s 2017 statement
In his statutory declaration of 18 September 2017 (hereafter the 2017 statement) which was attached to his protection visa application (this was set down in Chinese with accompanying English translations) the applicant presented these claims as follows:
The applicant was born in a village in the vicinity of Fuqing. In 1999 his father was killed in a horrible car accident. The culprit came from a very rich and powerful background, and the applicant’s family received no compensation at all. In [specified year] the applicant graduated from [a tertiary] course, but he found it difficult to find a stable job. In [year] he was recruited by the People's Liberation Army (PLA) and completed his two years of military service in Henan Province in the vicinity of Anyang City. Joining the PLA used to be the applicant’s childhood dream. He always thought that his family was unable to have justice for his father's death due to their powerless background. If the applicant became a soldier, no one would dare to bully them again. In [year] he was discharged from the army. Although he did not serve in the army anymore, he was a military reservist according to relevant regulation in China.
From [year] to December 2015, the applicant worked as a labourer on [specified jobs]. In January 2016 he began to work at a [shop] run by a distant relative, Mr C, in a [[location] in the commercial centre of Fuqing City. The shop's business was really good but Mr C was frequently bullied by [Mr A] who was an officer of the local City Urban Administrative and Law Enforcement Bureau (known as the Chengguan), and who was in charge of the [location]. Mr C had to give [Mr A] what are known in China as hongbao (‘red packets’; red paper envelopes containing a gift of money). Mr C had to do this at every festival and during public holidays and at other times.
[Mr A] had previously been a police officer at [Public Security Bureau] (PSB), and many of his family members worked at the [municipal government] or with the provincial government. With the powerful background [Mr A] was a local bully and everyone had to submit to him. Someone used to report [Mr A] to relevant government agencies, expecting relevant authorities to investigate [Mr A]. However, it was eventually useless to do this due to [Mr A’s] special family background, as anyone who dared to make trouble for [Mr A] would be subjected to severe punishment and would, at the least, completely lose their business. Mr C told the applicant that they just had to swallow their treatment by [Mr A] but the applicant found it more and more difficult to tolerate this; and as a military reservist the applicant firmly believed that he was obligated to protect ordinary people and make everyone respect the basic human rights of ordinary people, no matter who they might be.
At the beginning of January 2017, the applicant attended a gathering with his friends who had previously served in the army together with him, and he exchanged his views with them and suggested that their army friends should unite to protect ordinary people and assist them to resist extortion of the chengguan officials led by [Mr A]. Most of his army friends agreed with him. After this, when the [specified festival] was coming the applicant persuaded Mr C not to give red packets to [Mr A] and other chengguan officials as usual. When [Mr A] came to the shop with some chengguan officials and intended to make trouble, the applicant immediately contacted his army friends who quickly arrived at the shop and gave them strong support. [Mr A] had to give up and left with his men.
From [2017], more and more people who ran their businesses in the [Location 1] came to the applicant asking for help because the applicant had won a good reputation after he and his army friends had successfully resisted the extortion attempt of the chengguan officials led by [Mr A]. During the following [festivals] many shop owners refused to give red packets to [Mr A] and other chengguan officers as they usually would have; and more and more shop owners did not submit to the chengguan officials led by [Mr A] anymore and firmly refused their demands. The applicant was then more and more frequently, threatened by [Mr A] and other chengguan officials because these corrupt officials considered that the applicant had cut off their source of money. [Mr A] threatened that if the applicant continually set himself against his ([Mr A’s]) chengguan officials then he (the applicant) would be in big trouble.

The applicant had an army friend [Friend A] who worked as a security guard at [an airport]. [Friend A] was one of the applicant’s best friends in the army but had not supported the applicant’s activities against [Mr A] and his chengguan officials. [Friend A] thought that the applicant was banging his head against a brick wall, and that sooner or later the applicant would be subjected to persecution by corrupt officials. [Friend A] was worried about the applicant’s safety and, when he realized that he was unable to persuade the applicant to give up his struggle, he ([Friend A]) asked his ([Friend A’s]) girlfriend [Girlfriend A] (who was a guide at a travel agency in [location]) to secretly organise the applicant’s trip overseas so as to be prepared for the worst.
For some time, the applicant did not think too much about [Friend A’s] advice, because he did not consider he had done anything wrong; he had just protected shop owners and assisted them to resist extortion by chengguan officials led by [Mr A], and he (the applicant) had been widely supported by many people and had won a good reputation among the [Location 1] shop owners. But unexpectedly [Friend A’s] prophecy came true. On [a day in] June 2017 the applicant was informed by a reliable friend, who worked at Fuqing PSB, that he had become a target of the police because he had been framed by [Mr A] and other chengguan officials with establishing an ‘illegal group’ just like a ‘black society’ with his army friends. Fortunately, [Girlfriend A] obtained an Australian visa for the applicant on the same day, and with great help from [Friend A] the applicant immediately left China from [the specified airport].
On [a later day in] June 2017 many police went to the applicant’s home in Fuqing, but they could not get anything because the applicant had already left China. However, at least [number range] of the applicant’s army friends were arrested by police and were still being detained at [a] detention centre in September 2017.
China’s Chengguan Urban Management officers
In May 2012 Human Rights Watch (HRW) produced a major report about how China’s Chengguan Urban Management Law Enforcement had earned a reputation for excessive force and impunity; and that Chengguan had become synonymous among some Chinese citizens with arbitrary and thuggish behaviour including assaults on suspected administrative law violators, illegal detention, and abuses accompanying forceful confiscation of property and extortion; and that some Chengguan officials would determine in an arbitrary manner whether vendors were or were not permitted to sell in a given location.[2] Various news reports about incidents of this kind also appeared at the time and subsequently.[3] This noted, reporting has also appeared in subsequent years which has indicated that the situation is, or at least has become, more nuanced; and even that the problem may have now swung in the other direction, with Chengguan officials suffering beatings from vendors when doing no more than attempting to have vendors comply with local laws.[4]
The April 2018 submissions
[2] HRW, '"Beat Him, Take Everything Away": Abuses by China's Chengguan Para-Police', May 2012, CIS23114.
[3] Lubman, S. The Ticking Bomb of China's Urban Para-Police’. Wall Street Journal, 7 August 2013, ; Jiang, C. ‘China’s Brutal Chengguan Police Are Told to Get Polite’, 16 October 2013, ; Hongqi, P. ‘End incidents involving chengguan officers’, China Daily, 22 April 2014, ; Shun, T. ‘In China, Defending Grandma From The Heavy Hand Of The State’, WorldCrunch, 25 April 2016,
[4] Caron, E. ‘Interactions Between Chengguan and Street Vendors in Beijing’, China Perspectives, January 2013, ; Jingen, X. ‘Why China’s ‘Chengguan’ Are Public Enemy Number One’, Sixth Tone, 14 November 2016, ; Xiaokun, L. ‘Urban patrols break stereotypes’, China Daily, 17 August 2017, ; Beimeng, F. ‘New Film Turns the Tables on China’s Infamous ‘Chengguan’’, Sixth Tone, 29 April 2021, ;
On 4 April 2018 the Department invited the applicant to attend an interview to discuss his application on 18 April 2018. On 10 April 2018 the applicant’s then representative submitted several documents to the Department on the applicant’s behalf. These included, firstly, several photographs which present as having been taken at various dates between [date range]. Some of these show the applicant in PLA battle-dress uniform on or alongside a wheeled armoured vehicle which is mounted with an artillery piece. Others are group photographs of mostly PLA soldiers in dress uniform, comprising what appears to be a unit of some 100 personnel in one instance, and some 50 personnel in the other. Also attached was a document in Chinese and an English translation for this. The document presents as the applicant’s PLA discharge certificate of [date]. This indicates that the applicant was recruited into the PLA on [date], and ranked as a private in [year], and discharged from military service on [date]. It also carries a stamp dated [later date] which states ‘Reserves duty served’.
The 18 April 2018 interview
The applicant was interviewed by the delegate about his claims on 18 April 2018. The interview was conducted by the delegate with the assistance of an interpreter of Mandarin Chinese and English, and with the applicant’s then representative in attendance. Relevantly the following was discussed.
The delegate asked the applicant whether Mr C was the only shopkeeper to have had problems from [Mr A]. The applicant said that Mr C had told him that previously in the street there had been a person selling [product 1s] who did not give red packets and who made a complaint, and later the shop was closed. Asked what had happened between the applicant and [Mr A], the applicant submitted that in early 2017 around [period] he (the applicant) had suggested to his army colleagues that because they all used to be soldiers and as their mission is to serve the people they should come and help him in his conflict with [Mr A]. The delegate asked the applicant why he did not seek justice through the correct channels by reporting [Mr A’s] behaviour. In response the applicant submitted that, as he had mentioned, a person who was selling [product 1s] had made a complaint and his shop had been closed. The delegate put it to the applicant that what he had done could be construed as using force against force rather than serving the people. The applicant submitted that that [Mr A] had many family members in the PSB and so correct channels would not work.
The delegate asked the applicant why he would not have considered that using force would only have made matters worse. The applicant submitted that they were just protecting local people and had not started a fight. The delegate asked the applicant to explain exactly how this had been achieved by gathering a group of young men to confront [Mr A]. The applicant said that once you have served in the army your body is physically strong, and you are quite tough, and other people can see that you must have served in the army, and so [Mr A] and his men had seen this and had left. The applicant said that from February other people in the street saw that the applicant and his friends had successfully stopped pay red packets and so many business owners came to them asking for help. Asked how he provided this help, the applicant said that when the officials came to the shops and asked for the red packets, he (the applicant) would call his army colleagues who would then come because they all belonged to Fuqing. But after [the next festivals] he (the applicant) received more threats from [Mr A] who said the applicant was waiting for his death.
Asked what happened next, the applicant said that he had a friend from junior high school who worked for the [specified] department in the PSB. Asked for this person’s name, the applicant gave it as: [Friend B]). The delegate asked the applicant what had happened with [Friend B]. The applicant said this person called him on the telephone on the morning of [a day in] June and told him that he was on the wanted list and told him to get out to avoid the summons. The delegate asked the applicant if this was why he had come to Australia, and the applicant said that it was, and that he feared that if he returned to China he would be arrested and tortured. The delegate asked the applicant why he had not sought to tell his side of the story to the PSB. The applicant said that as he had said previously, [Mr A] had a lot of people in the PSB and it would have been useless to go to the PSB who would have arrested him immediately.
At the end of the April 2018 interview the delegate expressed doubts about whether the applicant was actually wanted by the authorities in China as he claimed given that he had been able to depart the country. The applicant submitted that they wanted him on the Internet. Asked if he had any evidence of this, the applicant said that there had been a summons and they had asked for his family to go in. The delegate queried whether the applicant was submitting that there had been a subpoena for him to go in and talk about the matter. He said that there had been on [a later date]. The delegate then noted that the applicant was claiming that he had been able to leave China on [the day in] June 2017, the same day he was notified by his friend at the PSB that he was about to be arrested. The applicant said this was correct and that he departed China for Australia at around 9:00pm on [that day]. The delegate put it to the applicant that for this to have occurred the applicant must have applied for the visa (which he entered Australia on) well in advance of [the day in] June 2017. The applicant said that in April 2017 his army colleague [Friend A], with whom he had had a good relationship, had done this for him. The delegate put it to the applicant that this would mean that in April 2017 he (the applicant) was already preparing his travel. The applicant submitted that he did not know this would involve Australia.
The delegate asked the applicant whether it was correct that after he had left China all of his army colleagues had been arrested (as has been noted above, in his September 2017 written claims the applicant submitted that [number range] of his army friends had been involved in confronting [Mr A variant], and that after the applicant left China at least [same number range] of his army friends had been arrested). The applicant responded that this was not correct, and that [some] of them had run away. The delegate queried whether some of the applicant’s army friends got captured. The applicant said: yes, [number] were arrested. Asked what happened to these arrested persons, the applicant said that up until now they were still trapped inside. Asked why this was, the applicant said that like him they were alleged to have illegally organised gangsters. Asked why these persons had not been able to escape like the applicant, the applicant said that he supposed that after he had notified them, they had not had enough time to run away. The delegate put it to the applicant that he had managed to escape even though he was the core organiser of this group’s activities. Asked why he had not also warned his friends that they should also organise their departure as he was doing, the applicant said that he had done this.
The delegate’s decision of 8 May 2018
The delegate, in her decision, found it implausible that the applicant would in April 2017 have begun preparations to leave China prior to being told on [the day in] June 2017 that he was wanted for arrest. The delegate did not accept that this event (his being told on [the day in] June 2017 that he was wanted for arrest) ever occurred, and on this basis was not satisfied that the applicant would face a real chance of serious harm, or a real risk of significant harm, if he were to return to China.
The 19 January 2024 hearing
On 19 January 2024 the applicant appeared before the Tribunal to give evidence and present arguments (and this hearing, hereafter the January 2024 hearing, was conducted with the assistance of an interpreter of Mandarin Chinese and English). Relevantly, the following was discussed:
Asked how he came to be in the military in China, he said that his parents had asked him to join, and had said that he would receive training and then aid because of his military service (consistent with this: it is reported that in the years prior to 2011 China had been seeking to expand the size of its military, and including by way of a dramatic increase in mandated benefits for both active duty and demobilized personnel of the PLA, with such incentives including: preferential treatment in job applications; pension, retirement and health care plans; continuing education, and mandatory counting of service years as employment time in the civilian sector).[5] Asked when his parents had told him this, the applicant said that this had been in around [year] because he was not making much money working in [his occupation].
[5] Yu, M. ‘China military recruitment’, Washington Times, 2 November 2011,
I now asked the applicant what his father did for a living (for while in his September 2017 written application the applicant had claimed that his father had been killed in a car accident in 1999 – with the culprit being from a very rich and powerful background such that this translated into the motives that led the applicant to dream of becoming a soldier and to stand up for ordinary people – the applicant had thus far spoken about what his parents had been telling him in 2011). In response the applicant submitted that his father had died in 1999 in a car accident. I put it to the applicant that he had just told me a moment earlier that his parents advised him to join the military in July 2011. The applicant submitted that by this he had been referring only to his mother.
I am willing to accept this was the case. Nevertheless, and although later in the January 2024 hearing the applicant submitted that when he was in the army he had been trained that their first principle should be to serve the people, the applicant otherwise said little at the January 2024 hearing which gave the impression (in the manner of the statements made in his September 2017 written claims) that joining the PLA used to be his childhood dream, as he had always thought his family was unable to have justice for his father due to his family’s powerless background; and that if he became a soldier no one would dare bully them again.
At the January 2024 hearing, when I asked the applicant if he had wanted to join the military, the applicant said that he had not because at the time he had been overweight. Asked why he had joined the military notwithstanding this, the applicant said that his mother had accepted his conscription notice on his behalf and after this he had no option but to commence his military service. Asked whether he considered applying to remain in the army when his term was up, he said he had not because he could not withstand the weather in Hunan Province and he wanted to be back in his hometown where there was no snow (it is reported of China’s military that personnel are generally required to serve in a province other than their own).[6]
[6] Allen, K.W. et al, ‘Personnel of the People’s Liberation Army’, USCC, 3 November 2022, p.26,
The applicant said that his military service began with three months of recruit training in a group of about a thousand persons. Asked if he knew any of these persons, he said he did not, but some of the were from Fuqing. Asked where he was assigned after this, he said that he was sent to artillery. Asked for the numeric designation of the division within which he served, the applicant said he could not remember because it was so long ago. After thinking about it he submitted a number. I checked this against publicly available reporting about the PLA’s order of battle but could find no such division. I put this to the applicant, and he submitted that that this division had subsequently been disbanded. I am willing to accept this given what is reported about the ongoing downsizing and reorganisation of the PLA over the last decade,[7] and given also the limitations that come with what publicly available reporting can report about China’s military.
[7] Chase, M.A. ‘Xi in Command: Downsizing and Reorganizing the People's Liberation Army’, RAND Corporation, September 2015, ; Blasko, D.J. ‘The Biggest Loser in Chinese Military Reforms: The PLA Army’, NDU Press, 5 February 2019,
The applicant was, moreover, able to talk in a convincing manner about his experience of service with the PLA. I have, moreover, no reason to doubt the authenticity of the applicant’s [dated] PLA military service discharge certificate which indicates that he was recruited into the PLA on [date], and ranked as a private in [year], and discharged from military service on [date]. I accept this was the case. When I asked the applicant when his reserve duty ended, he submitted that it came to an end three years after he was discharged from the army (which would have been in [year]). The applicant’s [dated] discharge certificate carries a stamp dated [later date] which states ‘Reserves duty served’, and which thereby strongly suggests that the applicant’s reserve duty obligations actually ended two years earlier than [that year]. This noted, I am willing to accept that the applicant did remain eligible for further military reserve duty until [year].
Asked about the organisation of the PLA division to which he had been assigned, the applicant said his division was composed of four battalions, each with four companies comprised of four squads. He said that his company operated [specified equipment] [for] which he was responsible for driving. He said that his battalion had operated older equipment, and that the photographs he had provided showed him posing with a more modern self-propelled gun which was operated by one of the other battalions in the division. I asked the applicant if there had been anyone in his company from his home district who he had known. The applicant said there were some people from his home district in his company, but he had not known them. Asked if there had been anyone from his home district in his battalion, the applicant said that there had been, but they had not been among his acquaintances.
Asked whether there was any reason why he could not return to China, the applicant submitted his claim that he had been framed as a gangster by [Mr A], and that if he returned to China he would be arrested. Asked if there were any other reasons why he could not return to China, he said there was no other reason. Asked how all of this began, the applicant detailed (as per his previous evidence) how he had begun working for his [Relative A], Mr C, in January 2016, and how [Mr A] had solicited money from his [Relative A]. It was at this point that the applicant submitted that in the army they had been trained that their first principle should be to serve the people; with the applicant submitting that, because he had been discharged from the army not too long ago, he was very upset about what was happening with [Mr A]. The applicant said his [Relative A] told him not to get into any conflict with [Mr A] because the applicant would be no match for him because he had powerful backers. The applicant submitted that he tolerated [Mr A’s] actions for a year and then in January 2017 when his army friends all came back home and reunited, and when the applicant told them about [Mr A] their reaction was the same as the applicants, and the applicant suggested that if [Mr A] came back for money he would contact them for help, especially those who lived or worked nearby.

The applicant submitted that in [2017] during [another] Festival as usual [Mr A] came, and so the applicant called his friends who worked nearby in the zone of the [Location 1], and [number range] of them came. The applicant submitted that he had quarrelled with [Mr A] so as to buy more time for his friends to arrive. They exchanged words and [Mr A] said the applicant would be in serious trouble in the future. Then [at the next festival], just as with the first time the applicant called his friends from the army and they managed to successfully stop them again, but again as on the last occasion the applicant was threatened, and [Mr A] said: if you try to stop me again, I will get you killed. Other owners of other shops witnessed all of this and saw that they had successfully stopped [Mr A] twice and they all came to the applicant and hoped that he could he help them.
The applicant now submitted how he had a friend from the army who was in the same squad, [Friend A], and who was in security at [the named] Airport, and on [date] he came back for the [specified] holiday which was on [date] and in the evening the applicant told him about this matter over dinner. [Friend A] suggested that the applicant should not confront [Mr A] because he would be just like an egg confronting stone. The applicant did not take [Friend A’s] advice because he had managed to stop [Mr A] twice and he was overwhelmed by success. [Friend A] saw he could not persuade him (the applicant), and so [Friend A] asked the applicant to prepare his passport and get all his bank documents. The applicant asked [Friend A] why he wanted his passport, and [Friend A] had submitted that he would think of a retreat for the applicant.
The applicant then submitted that [later] there was another [specified] festival and on that occasion he had managed to stop [Mr A] again from soliciting money, and when [Mr A] left he said to the applicant that he would give him some time to consider whether he seriously wanted to intervene again, and that if the applicant did this another time [Mr A] would truly get the applicant killed. The applicant submitted that he now thought about [Friend A’s] suggestion about getting his passport and that could be his retreat and so he (the applicant) provided all his documents. Then on the following day, [date], the applicant decided that he still wanted to help other owners and to confront [Mr A] to stop him from soliciting money, and on that day [Mr A] failed to solicit money from over 10 owners, and [Mr A] then left after telling the applicant he was dead for sure.
The applicant then submitted that on the morning of [the day in] June, at around 8:00am or 9:00am, the applicant received a phone call from another friend in the army and this friend’s family were quite wealthy and had some connections, and through his family connections he had been able to find a job in the police force, and when he was documenting all the information this friend saw the warrant for the applicant’s arrest and called the applicant and warned him. Asked what this friend had told him, the applicant said the friend said he saw the warrant for the applicant with the applicant’s photograph on it, and this said that the applicant was organising an illegal gangster group and was the leader of this group. Asked for the name of the friend at the PSB, the applicant gave this as: Chaofeng LIN (hereafter: [Friend C]). I asked the applicant to repeat what he had said, and he again gave the name of: [Friend C]. I put it to the applicant that at the 2018 interview he had told the delegate this person’s name was [Friend B]. The applicant suggested that there may have been an error in the 2018 recording.
Asked what he did after being telephoned by his friend at the PSB, the applicant said that he then called his army friends and told them to run away if they could. Asked how many of his army friends had been involved, the applicant named [number] persons. Asked how he had known these [number] persons, the applicant said that they had all been in the same battalion as him, though in different squads. I put it to the applicant that earlier in the hearing he had indicated that he had not been acquainted with any of the persons from his district who were in his battalion. The applicant responded that what he had meant was that he had not known these men when he first joined the army. The applicant submitted that he had come to know them over his subsequent two years in the army.
I note, with regard to all of this, that it is reported of China’s military that: As a general rule, new recruits from a single district have been sent at most to three separate division or brigade-level units, and a single district typically is responsible for sending conscripted personnel to the same units year after year, with the new batch of conscripts simply replacing the previous batch sent from the same district two years ago.[8] Given this, it is plausible that there would be concentrations of persons from a single district/county level administrative unit within a given battalion. However, it is also reported that arrangements in China’s military are also such that every PLA unit is nonetheless composed of soldiers from many parts of the country.[9] This is logical enough since China has more than 2,000 district/county-level units[10] (hosting well over 300 million men of fighting age),[11] such that even though a district/county-level administrative unit might send its conscription levy to the same two or three battalions every two years, there would nevertheless likely also be other district/county-level administrative units which likewise sent their conscripts to these same two or three battalions. Moreover, and although a battalion sized unit (with perhaps some 1,000 personnel) might nonetheless include a significant number of persons from a single district/county-level administrative unit, such an administrative unit might itself be large; and in the case of the applicant’s home district/county-level area of Fuqing City[12] this is the case. For Fuqing City is reported to have a land area of more than 1,000 square kilometres, and a population of over a million persons.[13]
[8] Allen, K.W. et al, ‘Personnel of the People’s Liberation Army’, USCC, 3 November 2022, p.26, ; and see Kamphausen, R. et al, ‘The “People” in the PLA: Recruitment, Training, and Education’, Strategic Studies, September 2008, p.104,
[9] Allen, K.W. et al, ‘Personnel of the People’s Liberation Army’, USCC, 3 November 2022, p.26, ; Kamphausen, R. et al, ‘The “People” in the PLA: Recruitment, Training, and Education’, Strategic Studies, September 2008, p.104, Zhang, J. & Y. Cai, ‘Urbanisation in China today’, OECD, 2012, p.114, ; and see: See: ‘Chapter 3: County-Level’, in: Fishman, D. ‘How To Understand the Provinces, Prefectures, Counties and Towns of China (Part 1)’, 29 June 2023,
[11] Bess, C. ‘Running Out the Clock on China’, Texas A&M University, July 2020, p.2,
[12] Global Times, ‘Administrative divisions of Fujian Province’, 11 March 2010, ; People Government of Fujian Province, ‘Administrative Regions’, 27 August 2014,
[13] DFAT, ‘DFAT Thematic Report: Fujian’, 16 December 2016, CIS38A80123116, 3.30; LanguageXS, ‘Fuqing: History, Culture, and Language of Fujian’s Coastal City’, ; Chinese Foreigners Guide, ‘Fuqing’,
The problem this creates for the applicant’s claims is that, for his claims to be plausible, he would have to have been friends with some [number] persons from his battalion who were not only subsequently living in Fuqing, but who were living in the vicinity of the [Location 1], and who had the flexibility to quickly disengage from their day-to-day lives and head to the [Location 1] whenever the applicant telephoned them for assistance on a given festival day at whatever time of day [Mr A] might appear at the [Location 1] to demand money. At the January 2024 hearing I put it to the applicant that it was a concern for me whether his battalion would have included [number] persons who were all subsequently living in the vicinity of the [Location 1], particularly given how recruits from the same district were dispersed in China’s military units. The applicant submitted that there were over 100 recruits from Fuqing in the four battalions (which made up the division within which he served) and when they had their reunion (in January 2017) some 16 of these people had attended, and although some of them were not very familiar with him they were nonetheless all veterans from the same battalion, and so they were all part of the same community, and they would respond if you reached out to them. The applicant submitted that some of these persons were living in the vicinity of the [Location 1], and some worked nearby, and that Fuqing was not very large.
I accept that it is plausible that the applicant served in a PLA division whose battalions contained some 100 persons from Fuqing, and I also accept that it is plausible that the applicant knew at least 16 such persons. I also accept that the shared experience of service can mean that veterans who do not know each other closely will nonetheless be willing to assist a fellow veteran to the extent that they can. But I am not persuaded Fuqing could be described as not being very large. Moreover, and even with the [Location 1] being located in a central area (Fuqing’s central business district) it is nonetheless difficult to believe that [number] such persons were not only residing and/or working nearby but that [number range] of these persons were able to quickly respond to a call from the applicant whenever [Mr A] might appear at the [Location 1] to demand money on a given festival day.
Further, the applicant’s account of what occurred (wherein [Mr A] would appear at the [Location 1] to demand money from a shopkeeper, and then the applicant would call his army friends such that [number range] of them would then rush to the [Location 1] to neutralise the threat posed by [Mr A] and his officials) was not persuasive in itself. For even allowing for the possibility that this might have been effective on one or two initial occasions when such a response was not expected by [Mr A] (and with the applicant quarrelling with [Mr A] to buy time for his army friends to arrive) it is difficult to believe that this would have been a plausible means of subsequently opposing such an extortion operation; since it is difficult to believe that (if all of this were true) [Mr A] would not simply have negated this by returning to the [Location 1] to demand money at a time when he was not expected, and then acting quickly to compel a given shopkeeper to pay the demanded money (without allowing himself to be delayed by quarrelling or some other delaying tactic) such that all of this could be accomplished before anyone could arrive to impede him and his fellow officials.
Moreover, there is also the more significant problem that, confronted by a situation wherein shopkeepers were opposing him with the assistance of former soldiers, such a corrupt official could turn from the threat of violence to the threat of simply closing down the business of one or more shop owners to make an example of them and thus compel the remainder into complying once again with demands for money. For in his September 2017 written claims the applicant had indicated that [Mr A] had the power to do this when he submitted that [Mr A] was in charge of the [Location 1], and anyone who dared make trouble for him would be subjected to severe punishment and would, at the least, lose his business; and at the April 2018 interview the applicant told the delegate that his [Relative A] had told him that there had been a seller on the street who did not give red packets and made a complaint, and later this person’s shop was closed down.
At the January 2024 hearing I asked the applicant why he had not reported [Mr A] to the police rather than simply refusing to pay him money. The applicant responded by submitting that his [Relative A], Mr C, had told him that [Mr A] had been reported to the police in the past but the result was that either the power in their shop was cut off, or they were beaten, and even now [Mr A] was protected by a high level official. As the applicant had not said that a person had had his shop closed down, I asked the applicant if any other shopkeepers had refused to pay [Mr A] or had complained about him. The applicant submitted that, as he had already mentioned, some people had as individuals complained to the police, but it had been no use. I put it to the applicant that he had told the delegate that there had been a person selling on the street who had refused to pay, and whose shop was closed down. The applicant said he did not think there was such person who had refused to pay and whose shop had been closed down.
At the January 2024 hearing the applicant’s account of what had occurred continued (that is, in terms of what he claimed had happened after he was alerted on [the day in] June 2017 that a warrant had been issued for his arrest; and after alerting his [number] army friends that they were wanted for arrest also) with the applicant submitting that he then remembered that he had given his passport to [Friend A]. The applicant claimed that he then contacted [Friend A] to tell him what had occurred and to ask whether the visa was ready because, if it was not, he would have to escape to another province. [Friend A] responded that the visa was ready, and that the applicant should pack his things and head to Xiamen as soon as possible. [Friend A] then checked what flights were available and found that all the tickets were sold for the flights leaving earlier that day for Australia, but he was able to purchase a ticket on a flight which was departing at around 9:00pm, and so in this manner the applicant departed for Australia. Asked to list any other assistance [Friend A] had provided, the applicant said that [Friend A] had exchanged some money for him into Australian currency, and had shown him how to use the self-service counter for obtaining his boarding pass, and had given him instructions about what to do after arrival in Sydney in terms of proceeding to the China Town area and locating the migration firm which subsequently lodged his protection visa application.
Asked when, after arriving in Australia, he next had contact with anyone in China, the applicant said that after finding accommodation he telephoned his family (his mother and [sibling]) to tell them he was safe. Asked if his family told him about anything that may have occurred in China, the applicant said he was told that on [a later day in] June 2017 the police had come to the home in search of him and wanting to arrest him. Asked if the police had presented his family with a warrant for his arrest or anything of this kind, the applicant said he had not asked this question. Asked if anything else had happened in China after his departure, the applicant said that [number] of his army friends were arrested. Asked how he knew this, the applicant said that one of his other army friends had told him this. Asked when this occurred, the applicant said it was on the second day after his arrival in Australia when he had telephoned this person. The applicant said he was told the police had arrested these [persons], and that maybe two months later he was told they had been sentenced to [term] imprisonment as accomplices in establishing a criminal group. The applicant said that these [men] could now work only as labourers because of their criminal record, and many employers would not have them.
Asked whether he was able to provide any evidence that [these] army friends were convicted as he claimed, the applicant asked how he could be expected to do this as it was not as though he could take photographs of them in prison, and they had already been released anyway. I asked whether a document such as a court record of the conviction of these persons could be provided. The applicant said he would ask his friends about this later. The applicant said he had felt guilty about what had happened, and so he had transferred money to his [Relative A] Mr C, so that Mr C could provide money to these [persons] who had served [this term] in prison, and that he (the applicant) could provide evidence of these money transfers. The applicant did not subsequently provide this evidence and I am not, in any event, persuaded that this would have assisted the applicant in establishing his claims, since such evidence would have established nothing more than that the applicant had transferred money to his [Relative A]. As for what had happened to the applicant’s [Relative A], Mr C, the applicant said that Mr C had not had any problems because of these matters, but Mr C’s business had eventually failed because of the events associated with the COVID-19 pandemic, and he was now working in [ different business line].
Asked whether he had any reason to think he was still of interest to any authorities in China, the applicant said that he did, because in August 2023 he had spoken with his friend in the PSB who had told him the warrant for his arrest was still valid. The applicant said that he had asked his friend whether he could take a photograph of this warrant, but his friend had told him he could not because of security at his workplace where there were a lot of cameras, and where he was not even allowed to take any photographs while inside. The applicant said his friend had told him that because of the active warrant for him, he was listed on an internal system which operated such that the applicant would be arrested no matter the location of the airport he might use to enter China.
I note, with regard to the applicant’s latter claim, that DFAT reporting indicates that a person who was wanted for arrest by China’s PSB or a similar law enforcement authority would almost certainly be arrested if they attempted to enter China via an airport. But I also note that the existence of such systems also means that a person wanted by the authorities in this way would find it difficult if not impossible to depart China.
In December 2017 DFAT reported that a number of agencies within the Ministry of Public Security hold responsibility for monitoring entry and exit procedures at Chinese airports, including the PSB; and that security monitoring capabilities at airports are comprehensive, and departing passengers pass through several identity checks (including passport and ticket/boarding pass inspection) run by different agencies between arriving at the airport and boarding a flight; and major airports having a centralised system with name matching alert capabilities, and with facial recognition technology widely deployed at all international checkpoints.[14] In December 2021 DFAT observed that: If a person is on an exit control list it is very unlikely, probably impossible, that they would be able to leave China; and that: it is almost impossible to exit China without the authorities’ knowledge; and that: it is difficult or impossible to forge identity documents that would be able to be used in practice owing to how technology and algorithms (rather than a human official who may be liable to bribery) may make decisions; and: an ordinary citizen would find it difficult to bribe border protection agents because of sensitivities to corruption, and the professional and comparatively well-paid status of public security officials.[15]
[14] DFAT, ‘DFAT Country Information Report: China’, 21 December 2017, CISEDB50AD7983, 5.20; and see: DFAT, ‘DFAT Country Information Report: China, 22 December 2021, 20211222100210, 5.31, 4.15.
[15] DFAT, ‘DFAT Country Information Report: China, 22 December 2021, 20211222100210, 5.33, 5.35.

At the January 2024 hearing I put it to the applicant that, given the country information noted above, the fact that he was able to leave China on [the day in] June 2017 could raise doubts about whether he was wanted for arrest as he claims. In response, the applicant submitted that he had asked his friend at the PSB about this and had been told that the warrant which he saw on [the day in] June 2017 was just a draft and had not yet been saved into the computer (such that the applicant was not yet listed on an exit control list), and that he only became aware of this after being told about all of this at some point in 2020 by his friend at the PSB. Asked why this person would have told the applicant about this at that time, the applicant said that he had asked his friend how it was that he had been able to leave China if there was a warrant for his arrest. I have not found this persuasive. If something of this kind really had occurred (that is, if the applicant really had been told all of this in 2020 by a friend in the PSB) I find it difficult to believe that the applicant would not have sought earlier to alert the Tribunal that he had learned that his departure had been enabled by a delay in his being listed on an exit control list (particularly given how the delegate had indicated to the applicant at his 2018 interview that such concerns raised doubts about the credibility of his claims).
Another matter which has been a concern has been the issue of when it was that the applicant actually decided to leave China for Australia, and his reasons for making this decision. I note, in this regard, that the applicant’s current [2017] issued passport which he used to arrive in Australia carries a statement indicating it was issued to replace a previously issued passport; and this is also noted in his protection visa application form, though no details about the use or whereabouts of the previous passport were provided by the applicant other than to submit: This passport has been replaced by my current passport.
At the January 2024 hearing I asked the applicant how many years ago he had obtained his previous passport. He said he could not remember. Asked whether he had ever travelled anywhere outside China before his June 2017 arrival in Australia, the applicant said he had not. Asked to explain why he applied for his first passport the applicant said his family told him that if he ever got married, he might want to travel and would need a passport. Asked why he obtained a new passport in [2017], the applicant said that at that time he had realised his existing passport was lost and so his mother told him to get another one. Asked why he had done this, the applicant submitted that if his existing passport was found by someone else, they might have been able to use it improperly. I put it to the applicant that he could have simply reported his existing passport as lost. The applicant submitted that you have to have a passport as a back-up in case you decide you want to travel because it is a lot of trouble to get a passport. Asked why he would have wanted to travel, the applicant said that it is a very normal thing to do if you have money and you want to take your wife or girlfriend for travel and shopping. I put it to the applicant that my concern with all of this was that he was claiming that he had had no intention of leaving China at that time, but the fact that he had applied for a passport in [2017] raised the concern that that his decision to leave China was the result of a long term plan, rather than a hurried departure which resulted from a series of unexpected events which occurred months later. The applicant said he understood what I was saying, but that matters had unfolded as he claimed.
I am willing to accept that in [2017] the applicant did report to the Chinese authorities that his previous passport was lost when he sought to have a new replacement passport issued to him. But I have not found the applicant’s broader evidence about all of this persuasive. I note, first of all, that it is not apparent that the wait time for the issuance of a Chinese passport is particularly lengthy such that a person would feel the need to have a passport ready to hand so as to be prepared for travel in the event of marriage or wanting to travel abroad with a girlfriend (for while it is reported that some persons can face problems in this regard – such as criminal suspects and political activists, and members of minority communities such as Tibetans – it has long been reported that members of China's ethnic Han Chinese majority can generally obtain a passport in 15 days).[16] I note moreover that, contrary to the applicant’s assertions, it is not apparent from the country information before me that it is common for Chinese citizens to hold a passport even though they might have no intention of engaging in travel (and I note that in April 2017 it was estimated that only 4% of Chinese nationals had passports).[17]
[16] 'No Exit China Uses Passports as Political Cudgel', New York Times, The, 22 February 2013, CX304246.
[17] Misrahi, T. ‘The new travel boom: why your next holiday won’t be where you expect’, World Economic Forum, 6 April 2017,
I note also that in his September 2017 written claims the applicant described [Friend A] as going about the business of organising the applicant’s trip overseas ‘secretly’, and with the applicant not thinking too much about [Friend A’s] advice, and with [Friend A] obtaining an Australian visa for the applicant on the same day as the applicant was told on [the day in] June 2017 that he was now a target for police. It is apparent that all this was intended to suggest that the applicant was not even aware of what arrangements were being made on his behalf with respect to a visa application. Such a claim is difficult to believe since [Friend A] could not have done all this on the applicant’s behalf without the applicant’s passport and without other evidence and information which would have been required from the applicant to complete such a visa application; and as has been noted the delegate did not find it plausible that the applicant would have been uninvolved in such matters until the day of his departure. The applicant’s January 2024 hearing account of all of this was more plausible, since it involved the applicant knowingly providing [Friend A] with his passport and banking documents, such as would have been required to facilitate an application for a visitor visa. This, however, does little to assist the applicant’s credibility given how in September 2017 he initially sought to create a different impression of what had occurred.
As has been noted already: On 8 December 2023 the applicant’s then representative emailed the Tribunal and advised that that the applicant had instructed that he would like to withdraw his application for review of the decision to refuse to grant him this visa. Attached to this was a withdrawal form signed by the applicant that same day, 8 December 2023. Some hours later, a further email was received from the applicant’s then representative, and this requested that the previous email (the withdrawal notification) be disregarded as the applicant would like to continue his application and attend the hearing; and a form attesting to this in writing was attached signed by the applicant that same day, 8 December 2023. On 11 December 2023 the applicant emailed the Tribunal and submitted: ‘In September 2017 I applied for a Protection Visa, and in May 2018, the Department refused me. My friend found an agent for me and submitted the AAT review application. Recently, my friend told me the AAT invited me to the hearing, but now I cannot contact my friend anymore. I am worried about my case status. Please refer to the attachments and update my personal information.’ As has been noted already, I did not find this persuasive. The applicant’s application for review had been submitted by the same migration agent as had been representing the applicant since his protection visa application was lodged in September 2017; and it was difficult to believe that the applicant had not been promptly and directly informed of the hearing invitation by his former migration agent given the history of the applicant’s communications with the Tribunal via this person.
Further, and as has been noted already, at the January 2024 hearing I asked the applicant if he could explain why on 8 December 2023 his former representative had communicated to the Tribunal that he (the applicant) wished to withdraw from the review. In response, the applicant submitted that his migration agent had advised him that he had little chance of success owing to his lack of evidence, and that he had better give up. The applicant submitted that he had felt confused at the time, and so he had agreed, but later he regretted this and thought he should not give up. The applicant said that at the time he had also felt very nervous about the prospect of appearing before the Tribunal. I put it to the applicant that the reason I was asking why he had submitted his withdrawal to the Tribunal was because his having done this could raise doubts about whether he had a genuine fear of harm with respect to returning to China. The applicant submitted that he had been very confused at the time, and he had just listened to his agent but had not really understood what was happening and had signed as he requested. I have considered this, but given how all this has unfolded, and how unreliable the applicant has proven to be as a source of evidence about what occurred with respect to his being invited to attend the January 2024 hearing, I am not persuaded that the applicant really was confused about what was occurring when on 8 December 2023 he signed the form in which he indicated that he wished to withdraw his application for review of the decision to refuse to grant him a protection visa. I consider that the applicant’s 8 December 2023 withdrawal raises further doubts about his claim that he is wanted for arrest in China.
Toward the end of the hearing, I explained to the applicant that I needed to put some information to him which would, subject to his comment or response, be the reason or part of the reason for affirming the decision not to grant the visa. I explained that when I put information to him in this way, I would also explain the relevance of the information and ask him whether he understood what I was saying, and once this had been done he could comment or respond and/or he could make a request for additional time to do this (including by way of making a request to have the hearing adjourned so that he could respond later by way of a resumed hearing). I then put it to the applicant that at his April 2018 interview he had said that at the street where he worked with his [Relative A] was a shopkeeper who refused to pay [Mr A] and whose shop was closed down. I explained that this was relevant because he had given no indication of this when I had asked him about such matters during the January 2024 hearing. I also put it to the applicant that at the April 2018 interview he had said his friend’s name at the PSB was [Friend B], and I explained that this was relevant because when I asked him for this person’s name during the January 2024 hearing he had given this as: [Friend C]. I also put it to the applicant that at his April 2018 interview he had said that (after he had departed China) [number] of his army friends were arrested and [some] ran away. I explained that this was relevant because in his September 2017 written claims he had stated that at least [number range] of his army friends had been arrested, and at the January 2024 hearing he had said that [fewer] were arrested, and [the] others had no problem.
I explained to the applicant that the inconsistencies which I had outlined to him might lead me to conclude that his claims about what had occurred with [Mr A] were a fabrication, and had not occurred, and that he would therefore not be at risk of arrest or harm of any kind if he were to return to China.
The applicant indicated that he understood the information and its relevance in each instance. With respect to the matter of my putting it to him that during the January 2024 hearing he had not said anything about a shopkeeper having had his store closed down, the applicant insisted that he had spoken about this when he had said that those shop owners who had refused to pay money had been beaten and had had their stores closed down. I put it to the applicant that I had earlier heard him say that some owners had had the power turned off for their stores, but I had not heard him say anything about stores being closed. The applicant said that perhaps there had been a misunderstanding because I had asked about an individual who refused to pay on the street. Having considered this, I have not found the applicant’s response persuasive. Even allowing for the extent to which the use of different phrasing in different exchanges might cause a degree of confusion (at the April 2018 interview the applicant referred to, or was at least interpreted as referring to, other business owners in the [Location 1] being “on the street”, whereas this was not a phrase which was referred to at all during the January 2024 hearing until I referred the applicant to the April 2018 interview), it was nonetheless the case that prior to this during the hearing the applicant had said that when people reported [Mr A] to police in the past the result was that either the power in their shop was cut off or they were beaten; and when I first put the matter of a person having had his shop closed for refusing to pay, the applicant indicated he was unaware of a person whose shop was closed.
This noted, with the applicant now submitting at the January 2024 hearing (as per his evidence at the April 2018 hearing) that [Mr A] had, in the past, been able to not only cut off the power to a shop but to close it down entirely, I put it to the applicant that I might find it implausible that he and his friends could have challenged [Mr A] as he claimed over a period of months without [Mr A] simply closing down any stores which refused to pay him (by way of in reprisal). In response, the applicant submitted that: firstly, [Mr A] was not himself a very powerful figure, and the person who had power was a person behind [Mr A]; and secondly, the real problem was not his [Relative A], Mr C, or the other store owners but was instead the applicant which was why [Mr A] focussed on him; and thirdly, it was better for [Mr A] to focus on the applicant rather than shutting down any businesses so that he ([Mr A]) could keep extorting money from them. I have not found this persuasive. For no matter whether such a corrupt official exercised power directly or via a powerful backer, if he had previously been willing and able to either shut off the power to businesses (as a lesson to them), or even to close a business (as a lesson to others) it is difficult to believe that the same corrupt official would have hesitated (owing to a potential loss of money through the loss or disruption of one or a few businesses) from punishing the first and/or the next business owner who enlisted the help [number range] former soldiers to resist his ([Mr A’s]) threat of a beating if the business owner did not pay [Mr A’s] extortion demands.
With respect to the matter of the name of the friend at the PSB, the applicant submitted that he was not sure about this and maybe there was an error in the interpreting at the April 2018 interview. I have re-listened to this section of the audio recording of the April 2018 interview several times and I am not persuaded that there was any such error. From the audio recording it is apparent that at the April 2018 interview the applicant named his purported PSB friend as [Friend B]. This name was then repeated by the interpreter to the delegate, and the delegate in turn expressly repeated the same name when she asked the applicant to explain what had happened to this person: [Friend B]. Even so, the applicant did not indicate to the delegate that the purported PSB friend had been referred to by the wrong name.
With respect to the matter of how many of the applicant’s army friends were purportedly arrested, the applicant submitted that perhaps he did not express himself clearly enough at the April 2018 interview if he had said that [number range] people were arrested and [some] ran away. I have re-listened to this section of the audio recording of the April 2018 interview several times also. I note in this regard that at the April 2018 interview the delegate asked the applicant whether after he left China all his army colleagues were arrested by the police, and in response the applicant said that: No, [some] ran away. The delegate then asked if some of them got captured, and the applicant responded: Yes, [number] were arrested. It is difficult to see how the inconsistencies in the applicant’s evidence in this regard could be accounted for by his failing to express himself clearly. The more likely explanation is that the applicant’s claims about all of this are contrived, and that for this reason he has been unable provide consistent evidence about what occurred over the passage of time.
The applicant did not request an adjournment of the hearing so that he might provide further evidence in person at a later date. He did, however, submit that he would attempt to contact the [number] army friends he claimed had been arrested to see whether he could obtain any documentary evidence of this. I advised the applicant that the Tribunal would undertake not to make a decision until after 2 February 2024 and that if he decided he needed more time he could make a request for this (that is, for the Tribunal to give an undertaking that no decision would be made until after such a date as he might wish to provide his further evidence by). The applicant was also advised that the Tribunal would consider any further evidence or information which he provided before it made a decision on his matter. Nothing further was, however, ever received from the applicant.
Having considered all of this, I have concluded that serious doubts about the credibility of the applicant’s claims are raised by the inconsistencies in his evidence about: the number of his army friends who he claims were or were not arrested following his departure; and the name of his purported friend at the PSB who alerted him that he was wanted for arrest. These inconsistencies lead me to conclude that there were no such arrests, and that the applicant does not have a friend at the PSB (and that the applicant was never told that he had been framed for organising a criminal group by [Mr A] and was wanted for arrest in this regard). This, in itself, means that I do not accept that the applicant has ever been wanted for arrest in such a regard in China. Matters are not helped by how the applicant provided inconsistent evidence about the matter of whether a shop was ever closed down because a person refused to pay and/or complained about [Mr A], nor are matters helped by how unpersuasive the applicant’s evidence has proven in other regards (in particular with respect to the manner in which he has claimed that: [number range] of his [number] army friends were able to respond to his calls for assistance at [Location 1]; and how this remained effective on multiple occasions even though the purported [Mr A] would have been aware in such circumstances of the need to act quickly; and how the purported [Mr A] did not seek to solve this problem by closing down one or several shops as an example to others).
Given all this I am not satisfied, and I do not accept, that the applicant ever was involved in organising himself and/or friends to protect store owners at a [location] in China from a [Mr A] and other Chengguan officials; nor do I accept that the applicant has been accused of establishing an organised crime group (an ‘illegal group’, or a ‘black society’, or a gang or similar), or that he is wanted for arrest by or is of adverse interest to the PSB or any other authority in China.
Does the applicant satisfy the refugee criterion for protection?

Given the findings I have made above, I am not satisfied that the applicant would for the foreseeable future face a real chance of harm of any kind if he were to return to Fuqing City in Fujian Province, or to China more broadly; and I am therefore not satisfied that the applicant would for the foreseeable future face a real chance of persecution which relates to all areas of his receiving country. I am therefore not satisfied that the applicant has a well-founded fear of persecution with respect to China.
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).
Does the applicant satisfy the complementary protection criterion for protection?
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).
For the reasons already given above I am not satisfied that the applicant would face a real chance of harm of any kind for any reason if he were to return to China. I am therefore not satisfied that the applicant would face a real risk of harm of any kind for any reason if he were to return to China. I am therefore not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country, there is a real risk that he will suffer significant harm.
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)(aa).
For completeness, 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 under review.
Date of hearing:   19 January 2024
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36     Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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