1821907 (Refugee)

1821907 (Refugee) [2019] AATA 5037 (6 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1821907
COUNTRY OF REFERENCE:                  China
MEMBER:Brendan Darcy
DATE:6 March 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 06 March 2019 at 4:02pm
CATCHWORDS
REFUGEE – protection visa – China – legal proceedings with manufacturer after work-related equipment explosion – manufacturer, with collusion of local officials, refused to pay compensation – complaints to authorities – arbitrary arrest, detention and torture by police – credibility – vague, implausible, inconsistent, unsupported evidence – no real chance of persecution – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Selvadurai v MIEA (1994) 34 ALD 347
Kopalapillai v MIMA (1998) 86 FCR 547
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 10 January 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of the People’s Republic of China (China), applied for the visa on 16 May 2016. The delegate refused to grant the visa on the basis that the applicant’s claims for protection were lacking in credibility.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant claims to be born on [date] in Fuqing, Fujian Province in China and to be a citizen of the People’s Republic of China.
The applicant claims his ethnicity is Han; and that he speaks, reads and writes and Mandarin.
The applicant claimed that he left school [when] he finished primary school.
The applicant claimed to married in 1989 and continues to be married; that his wife currently resides in Fujian province and that the applicant and his wife have two adult children. It is noted the applicant provided a copy of his marriage certificate to the Tribunal.
The applicant arrived in Australia [in] February 2018 while holding a [temporary] visa which was valid until 18 May 2016.
On 16 May 2016, the applicant lodged a valid Class XA Subclass 866 protection visa and was granted an associated bridging A visa.
Written Claims
The applicant's provided a written statement in English with his claims for protection as part of his application for a protection visa. A summary of those claims is below:[1]
[1] CLF[file number] Folio 27-28.
·The applicant claimed that he was a successful businessman who commenced a [venture] in June 2012. The applicant purchased a [piece of equipment for a purpose related to the venture].
·The applicant claimed the [equipment], although it had passed all the manufacturer’s quality requirements, exploded during normal operation in December 2012. The explosion resulted in one death and one injury.
·The applicant further claimed he sued the manufacturer and won the case and was eligible for compensation. However, the head of the manufacturer and local officials has a special relationship and the manufacturer refused to pay compensation;
·The applicant further claimed that the families of the victims asked for compensation and he paid them some money in advance for humane reasons but he could not meet their demands;
·The applicant claimed his business was forced to close and that he reported the officials in a letter of complaint;
·The officials whom he reported took revenge against the applicant by having him arrested, detained and tortured [in] April 2014 where he was tortured by being punched, by being ‘struck by cigarette lighters’, by electrical baton, by being handcuffed to a heavy mental chair, by having chuck of hair pulled out and by having peppers forced into his nose.
·While the applicant was detained, the police broke into his home and confiscated his appeal material and personal computer;
·[Later in] April, the applicant claimed he was released after being unconscious. When his health improved the applicant applied for a passport after his family urged him to give up his fight for compensation.
·However, the applicant did not heed his family’s advice by going to the [authority] in November 2015 to submit material. [In] December the police against came to his residence and threatened him with death if he appealed any further.
·The applicant then departed China [in] February 2016, but not before mailing a letter of complaint to the Central Discipline Inspection Commission on the day prior to his departure.
·[In] April 2016, the police came to his home and asked his family for the applicant to return to China.
The Department interviewed the applicant on 16 December 2016.
A delegate on behalf of the Minister refused to grant the applicant a protection visa on 10 January 2017.
In the decision record, the delegate made a number of adverse credibility finding including that the applicant had fabricated his account that he commercially [performed his job task] and that the delegate was not satisfied that anyone was killed or injured as a result of [an equipment] explosion on his property.
The delegate also had concerns that the applicant was required to pay compensation to the aggrieved families given company was found to be liable according to his claims. The delegate was also concerned that many of the claims were not substantiated by any copies of documents.
The applicant applied to have the refusal decision reviewed by the Tribunal on 3 August 2018. The delegate’s decision record was attached to the review application.
On 6 August 2018, the Tribunal contacted the applicant to explain the application for review appeared to be considerably outside the prescribed period for a valid application. The applicant responded that he expected that he would be informed by his authorised recipient of his decision but neither he nor his authorised recipient received any refusal decision. The Tribunal assessed that the notification had been defective. It further deemed that the date of notification by the Department was 26 July 2018 and that lodgement his application within the timeframe.
On 17 January 2019, he applicant was attended a scheduled hearing to present evidence and present arguments as the reasons he was owed Australia’s protection obligations. He was assisted by an interpreter in the Mandarin and English languages.
At the end of the hearing, the applicant was provided with a post hearing opportunity to provide additional documents or any other submissions for his claims and to do so by 31 January 2019.
On 12 February 2018, the applicant provided a copy of his household registry book (hukou) marriage certificate (with translations). With regards to the other documents sought by and the Tribunal, the applicant wrote that he was sorry about not being able to provide the other documents.
Non-disclosure notice
On the departmental file is a non-disclosure document notice issued on 10 January 2017 relating to folios 47-49.
During the hearing, the Tribunal put to the applicant that there was a non-disclosure notice on the departmental file under the Act’s adverse information provisions: s.424AA. It further stated that having examined the non-disclosure notice that it appeared to be validly issued and that the document appeared to indicate the applicant’s passport and identification document had been issued in Guizhou. The Tribunal further stated in the decision record it stated that the Department claimed to have been issued with false information as the applicant’s passport had been issued in Guizhou and not Fujian province and that the applicant had presented false information to Australia’s Guanghzhou post.
It was explained to the applicant why the information was relevant and that it would make up the reason, or part of the reason, for affirming the decision not to grant the applicant a protection visa. The applicant responded immediately.
ASSESSMENT OF CLAIMS AND FINDINGS
Country of Reference
The applicant claims to be a citizen of the People’s Republic of China (China).
On the basis of the certified copy of the applicant’s passport, provided to the Department, the Tribunal finds that the applicant is a citizen of China. For the purposes of s.36(2)aa) and with no information to the contrary, the applicant’s country of nationality is China. As the Tribunal has found that the applicant is a national of China, the Tribunal also finds that China is the applicant’s “receiving country” for the purposes of s.36(2)(aa).
There is no evidence that the applicant has any rights to enter and to reside, either temporarily or permanently, in any third country as required by s.36(3).
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)
Overall, the Tribunal finds that the applicant accepted a limited number of aspects of the applicant’s personal circumstance. However there were a serious number of credibility concerns raised whereby the applicant’s written and oral claims were mutually unsupportive and that should have been substantiated in a straightforward manner.
Accepted Personal Circumstances
It is accepted that the applicant was born in [year] in Fuqing city in China’s Fujian Province; that he speaks, reads and writes Mandarin; and that his ethnicity is Han Chinese, as claimed.
During the hearing, the applicant claimed that he has a Christian belief but did not know much about it. The Tribunal notes the applicant did not nominate any religion in his 866C format at the time of application and that Christianity is widespread in Fujian province. The Tribunal accepts that the applicant identifies as a Christian although he has no or little instruction in in that faith tradition.
It is also accepted the applicants has very limited education and that he completed his schooling up to the end of primary school.
It is accepted that the applicant married in 1989; that his wife and adult children continue to reside in Fujian Province, as claimed. Furthermore it is accepted that the applicant has spent most of his life in Fujian Province and that his home area is Fujian Province.
The Tribunal accepts that since he has become an adult the applicant has worked as [an Occupation] and that he owned and operated his own [business]. Contrary to the department, the Tribunal does accept the applicant owned and operated a commercial [venture]. The applicants provided a suitable amount of detail about [some of the procedures related to such a venture]. He was not aware of [some other related details], but this appears commensurate with his low level of education attainment.
With regards to the applicant’s residency, the Tribunal notes that he applicant had credibility concerns that the applicant was not a resident of Fujian province but Guizhou province as there is a departmental record. This information was subject to a non-disclosure notice on the basis that it would be against the public interest to provide the applicant with a copy) that indicated that applicant had presented a Guizhou-issued passport and identification card to the officials at the Australian diplomatic mission. This was raised with the applicant at the scheduled hearing under the Act’s adverse information provisions. The Tribunal is satisfied the applicant it has carried out its duties in this regard. However, while the Tribunal is satisfied the non-disclosure notified had been validly issued, it accepts the applicant’s explanation that a third party undertook to provide the Department with documents that he was a resident of Guizhou in order to obtain an Australian [visa]. Although it is plausible, there is no evidence before the Tribunal that the applicant knowingly participated or knowingly caused false information to be presented in order to gain an Australian visa. The Tribunal does not find this information relevant into determining whether his dispositive claims for protection were credible or not and has not place any weight on this in assessing his claims for protection.
Adverse Credibility Findings
The applicant’s dispositive claims for protection at the time of application include that following [an equipment] explosion [at his venture] leading to the death of one employer and the injury of another, that applicant successfully sued the manufacturer of the [epuipment] for compensation, that the manufacturer refused to pay the compensation; that he reported the matter to the [authority], and that the manufacturer used corruption and police intimidation to avoid payment. Specifically the applicant claimed that the police arbitrary arrested and detained him, leading to being beaten, tortured, and otherwise physical ill-treated [in] April 2016. He also specially mentioned policemen, [Mr A] or [Mr B] in those written claims. However, in the scheduled hearing, the applicant was unable to elaborate in much detail the kind of ill-treatment he endured other than by stating that he was handcuffed, beaten by a baton and was bleeding after his arrest and detention. He did not mention being ‘struck by cigarette lighters’ into his ribs or the use of an electric baton or by pulling out chunks of hair or the deployment of pepper into his nostrils as outlined in the written statement. Neither did he remember the specific month or year of the incident nor the name of any police official involved in the alleged detention. Had the applicant endured such significant physical ill-treatment in the past by specific persons as outlined in the applicant’s written statement, it would be reasonable to expect the applicant to have recalled more detail than he did at the scheduled hearing. Neither was the applicant able to recall that he made a complaint to the [authority] during the hearing, instead he vaguely nominated ‘the criminal department or another department’. These discrepancies and lack of detail presented at the schedule hearing about past incidents of harm have invited the Tribunal to consider that these incidents did not occur.

In the applicant’s written claims for protection he submitted that a [piece of equipment] [for a purpose related to] his [venture] exploded, leading to the death of one employee and the serious injury of another. However the applicant provided oral testimony that two girls were injured, only to later change that evidence that they were two men. He could not account for the change in testimony. The applicant elaborated that one man was injured but was unable to remember the injuries sustained on the second man. Asked if the injured required hospitalisation, the applicants said they both did and they both survived and one of them was unable to return to normal or similar work again. The applicants was unable to elaborate as any of the specifics of the injuries, claiming it was many years ago. Having explained to the applicant that his written claims stated that one employee was killed, the Tribunal further enquired into the name of the person killed, given he claimed there was family pressure on him and his family to sell his house and to borrow money to pay compensation. The applicant said he was unable to and that he did not want to remember such details. The Tribunal finds that these inconsistencies to be of serious concern and further invited credibility concerns about the applicant’s critical claims.
Another discrepancy included the applicant’s claims about the timing of this accident. When the Tribunal enquired about when the accident occurred at the scheduled hearing, the applicant claimed it occurred in a timeframe between 2014 and 2016; however his written claims provided the specific month and year as December 2012.
The applicant’s written claims also outlined specifically that the police came to his house on one occasion in April 2014 to confiscate material and his computer and then after his departure [in] April 2016. However in the hearing, the applicant said the police came to his house in 2016 to confiscate his computer and other material, claim he had trouble remembering the dates. Later in the scheduled hearing, he said he thought the police came to the family’s’ residence after he left and that police made threats not to make further complaints. He did not recall the last complaint he made on the day before his departure. This additional discrepancies and omissions between his written and oral claims further invited the Tribunal to hold credibility concerns about these specific and other claims for protection.
A further discrepancy arose when the applicant provided oral evidence at the hearing that he was required to pay [amount] RMB to the deceased employee’s family and [amount] to the injured family. However the decision recorded indicates that the applicant had paid the deceased’s family [amount] RMB and injured employee [amount] and that he had borrowed the money to pay the aggrieved families.
In other aspects, the applicant’s testimony was so lacking in detail as to invite the Tribunal to consider the claim was reliable or credible. Of particular concern was when the applicant was unable to remember the name of the manufacturer whom he sued and about which he made a compliant.
There are also implausible elements to the applicant’s account in his both his written and oral claims. In this regard the applicant was unable to explain how a small manufacturer was able to afford bribes to the police and other in authorities to stop the applicant in making further complaints or even how the manufacturer was not able to stop the applicant in making a successful compensation against such an influential but corrupt actor.
The applicant also provided inconsistencies regarding his claim that he had been compelled to sell the house and borrow money for compensation in lieu of the manufacturing avoiding its responsibilities. When the Tribunal enquired about the amount borrowed or outstanding from such a loan, the applicant responded by stating his wife borrowed the money and he was not aware of the amount as it was a long time ago and then stated he had borrowed about [amount] RMB (about [amount] Australian dollars) . He said he needed to talk to his wife about the amount outstanding and that the borrowed amount was advanced by a friends and relatives. Asked if these friends and relatives would do anything if he returned, the applicant claimed that they will do nothing to him other than request for the outstanding amount to repay. It was also implausibly claimed because the applicant had been made liable by the aggrieved victim and their families when he had claimed that he was successful in a court or tribunal or by some other authorities in having the manufacturer held liable. These mutually unsupportive, vague and inconsistent aspects of this specific claim have further invited credibility concerns about the applicant’s overall claims.
Asked if his wife or adult children had been harmed since he departed for Australia, the applicant claimed that only he was targeted and he could not explain the reasons his wife had avoided such harm, other than to state that it was perhaps it was because he was a man. Had the authorities been so ruthless to torture the applicant over such a relatively small matter, it would be reasonable to expect that they would continue to harm the applicant by punishing his family; especially given he claimed to have lodged a further complaint against the police on the day before his departure.
During the scheduled hearing, the applicant claimed that he could not recall specific details about his claims for protection as the incidents occurred a long time ago and he was not sure about the details. The applicant claimed that he experienced headaches ever since the torture incident and that he was taking Chinese medicine to treat the headaches. The Tribunal enquired into the reasons he could not remember such specific and significant details as the written claim that one of his employees had been killed in this alleged accident; to which the applicant responded that he did not want to remember such details.
At the end of the hearing, the Tribunal provided the applicant with a post hearing opportunity to locate and submit a number of documents to substantiate his claims and to elaborate any other claims where the Tribunal indicated it has credibility concerns. Neither did the applicant provide any medical evidence about his memory loss. The Tribunal finds that the applicant was in a strong position to submit documents pertaining to compensation, especially as he claimed his family had access to them, although he indicated his family had moved house on a few occasions. In the context of the Tribunal’s other credibility concerns, the lack of substantiated claims by documentary evidence is particularly deep concern n to the Tribunal that the applicant’s claims had been fabricated.
Cumulative Credibility Findings
The credibility of the applicant’s claims has been of central importance in assessing the applicant’s critical or dispositive claims about past harm leading to the applicant facing a well-founded fear of persecution or a real risk of significant harm, if he were to return to China, either now or into the reasonably foreseeable future.
It is plausible that the applicant had been arbitrarily arrested, detained and physically ill-treated by the police and that his complaints were not investigated, given the levels of abuses of power and the lack of transparency in that country . The most recent DFAT country information report on China (21 December 2017) considers credible reports that Chinese security authorities use extra-legal detention for politically sensitive investigations and that complaints against police rarely lead to disciplinary action and, where investigations are announced, their outcomes are not publicly released. It is also possible that the applicant does have some outstanding debts back in China, despite it being an otherwise late and unsubstantiated claim.
The Tribunal is open to overlooking small inconsistencies or even a significant discrepancy in protection matters However the Tribunal is unable to provide the applicant with the benefit of the doubt about his submitted written and oral dispositive claims. The discrepancies between the applicant’s limited written and vague oral evidence and the inconsistent evidence he provided the department in an interview and at the scheduled hearing were so numerous and significant, that it is not satisfied that the applicant’s claims for protection were credible or reliable. The claims were also implausible in aspects as outlined above. The applicant also undertook to provide documentary evidence for his claims to both the Department and the Tribunal. Even though the applicant had ample opportunity to provide documentary evidence about compensation for a specific manufacturer, business registration and complaint letters, he did not do so, further inviting credibility concerns.
The Tribunal does not accept the applicant was unable to recall specific details in any consistent or reliable manner due to memory loss, due to any head trauma or that events occurred a long time ago or he did not want to remember such unpleasant and painful events. The applicant provided specific details in his written claims to the Department and in an interview with the Department while his consistencies during the scheduled hearing were so vague, numerous and significant that it is unable to accept that memory loss was due to any maltreatment by the police or the passage of time or he did not want to remember such trauma or even a combination of these reasons. The Tribunal finds that the applicant’s difficulties in recalling significant aspects of his written claims at the scheduled hearing reflected the applicant’s inability to recall incidents fabricated for migration purposes. As for the argument that specific incidents occurred a long time ago, the Tribunal does not accept the passage of time was great, Nor does it accept the applicant was unable to remember significant and specific details such as the gender of the victims of an explosion or whether both were injured or whether only one was killed given it is variously claimed the workplace explosion have occurred in the recent past in 2012 or 2014.
With particular emphasis on the applicant’s inconsistent written claims at the time of application with his oral claims at the scheduled hearing, the Tribunal has cumulatively assessed that the applicant has not provided credible or reliable or substantiated evidence to support his dispositive claims for protection, either at the time of application, when he was interviewed by the Department or at the Tribunal’s scheduled hearing. Accordingly the Tribunal makes the following adverse credibility findings, cumulatively considered, that the applicant’s dispositive claims for protection were fabricated:
While the Tribunal accepts that the applicant, at one stage, owned and operated a [venture] and that he was reasonably successful in businesses in China by his own standards, it does not accept the business was ruined after a faulty [piece of equipment] exploded at any time in the past (noting the applicant provided different timeframes for this incident) and it does not accept this explosion injured, hospitalised, maimed or killed any employees of the applicant. It does not accept the applicant successfully sought compensation from the [equipment] manufacturer or that the manufacturer refused to pay that compensation that it lawfully owed the applicant and/or others. Neither does it accept that the aggrieved victims or family members of the accident made the applicant liable for the explosion or that he paid them compensation in lieu of the manufacturer as implausibly claimed by the applicant.
Based on the same cumulative credibility findings, the Tribunal does not accept the applicant complained to the [authority] in Fuzhou city or any other complaints authority about the compensation not being paid to him or aggrieved family members. It does not accept that the manufacturer had a corrupt arrangement with the police authorities leading to his arbitrary detainment as claimed. It does not accept that the applicant was taken into custody, arbitrarily detained, beaten, electrocuted, tortured or otherwise physically maltreated as variously claimed in his written and oral claims, either by the police or any other actor back in Fujian Province or any other part of his country of nationality and reference, for the reasons claimed. It does not accept the applicant’s home was ever raided by police officials or monitored the applicant’s home or confiscated his computer or other materials or that threats were made against him about making further complaints.
Based on the Tribunal’s overall adverse credibility finding, cumulatively considered, the Tribunal does not further accept the applicant’s family or house were ever visited by the police on any other occasion while the applicant in Australia, to deliver threats about making further threats. It does not accept continued to complaint to the [authority] or that he lodged a company to Central Discipline Inspection Commission or any other authority overseeing the police, either by mail or any other means, either shortly before he or even after he departed for Australia in 2016. The Tribunal also does not accept the applicant was forced to sell his house or borrow loans from friends, family or any other person or lending entity, lawful or otherwise, to pay compensation to aggrieved family members from a workplace accident that the Tribunal does not accept ever occurred.
Findings regarding ss.36(2)(a) and 36(2)(aa).
In summary, The Tribunal finds that the applicant has fabricated his written and oral dispositive claims for protection solely for migration purposes and not because he had any genuine critical claims that Australia owed him its protection obligations.
As the applicant is not a credible witness of truth, the Tribunal does not accept the applicant departed China and applied for protection because he held any subjective fears of persecution arising as a whistle-blower, a victim of corruption or a complainant against the police or any other person or entity in authority, either in Fujian Province or China more generally, either at the time of application or at the scheduled hearing. It does not accept the applicant has any genuine or urgent personally held fears of persecution arising from his dispositive claims, either now or into the foreseeable future, if he were to return to anywhere with China.
The Tribunal accordingly does not accept the applicant has a real chance of serious harm for any reason outlined in s.5J(1)(a) as the applicant’s claims are not accepted to be credible and does not have a well-founded fear of persecution based on these dispositive claims if the applicant were to return to either his home province of Fujian or China more generally. The applicant therefore is not a person in respect of whom Australia has protection obligations under s.36(2)(a) or within the meaning of refugee as required by s.5H(1) in this regard.
Based on the same credibility findings about the applicant’s dispositive claims that he is owed Australia’s protection, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the People’s Republic of China, there is a real risk of significant harm, including that he will be arbitrarily deprived of his life; the death penalty will be carried out on him; he will be subjected to torture; he will be subjected to cruel or inhuman treatment or punishment; or he will be subject to degrading treatment or punishment.
Cumulative Findings
At no stage did the applicant advance any further claims about having a real chance of serious harm for any other reason mentioned in s.5J(1)(a), including about his religion, his ethnicity or race, his political opinion, imputed or otherwise, or any other matter, including his economic circumstances or his claimed outstanding debts. Neither did he advance any other matter relating the Act’s complementary protection provisions.
Having considered the applicants’ claims both individually and cumulatively, the Tribunal finds the applicants do not face a real chance of serious harm or a real risk of significant arising from his dispositive claims or his accepted circumstances, if he were to return to his home area in Fujian province or China more generally, now and into the reasonably foreseeable future.
The Tribunal accordingly finds that the applicant does not have a well-founded fear of persecution that satisfies 5J(1)(a),(b) or (c) and that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or within the meaning of refugee as required by s.5H(1).
Therefore the applicants do not satisfy the criterion set out in s.36(2)(a).
Having considered the applicants’ claims both individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to People’s Republic of China, there is a real risk of significant harm, including the applicant will suffer harm if he is arbitrarily deprived of his life; the death penalty will be carried out on him; he will be subjected to torture; he will be subjected to cruel or inhuman treatment or punishment; or he will be subject to degrading treatment or punishment.
Therefore the applicants do not satisfy the criterion set out in s.36(2)(aa).
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Furthermore, the applicant does not satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa.
Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Brendan Darcy
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…

[2019] AATA 5037

6 March 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal