1916514 (Refugee)

[2022] AATA 2504

1916514 (Refugee) [2022] AATA 2504 (14 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1916514

COUNTRY OF REFERENCE:                   China

MEMBER:Roslyn Smidt

DATE:14 June 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 June 2022 at 5.14 PM

CATCHWORDS
REFUGEE – protection visa – China – imputed political opinion – anti-government and dissident views – arrested after leading village protests – elected to village committee – torture and forced confession – confusing and inconsistent evidence – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 48A, 65, 417, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
SZGIZ v Minister of Immigration and Citizenship (2013) 212 FCR 235

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who is citizen of China, applied for the visa on 26 September 2013 and the delegate refused to grant the visa on 13 June 2014.

3. This decision was upheld by a differently constituted Tribunal on 23 February 2016. [In] 2017 the Federal Circuit Court upheld the Tribunal’s decision. [In] 2019 the Federal Court found the aspects of the fourth Tribunal’s findings on credibility unreasonable and remitted to the Tribunal.

4. The applicant appeared before the Tribunal on 9 March 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   THE RELEVANT LAW

5. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criteria, 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.

6. The applicant has been found not to meet the refugee criterion in s 36(2)(a). He may nevertheless meet the criteria for the grant of a protection visa if he 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 the applicant 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’).

7. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   BACKGROUND AND MIGRATION HISTORY

8. The applicant is aged [age]. He was born and raised in [Village 1] in Fujian Province. His father was a peasant farmer. He attended high school in nearby [Town 1] until July [year] [aged [age]]. He is married in April 1992 and has two children, a daughter born in [year] and a son born in [year].

9. The applicant obtained a passport [in] 2002. He first visited Australia in October 2004 on a business visitor visa. According to Department records he was part of a mission organised by the South Australian government to attract Business Skills migrants. He returned to China after [number] days. He obtained a visitor visa on 28 April 2005 and re-entered Australia [in] May 2005.

10. The applicant first applied for protection on 17 May 2005. This application was considered under the under the Refugees Convention. It was refused by a delegate of the Minister on 4 August 2005. The delegate’s decision was upheld by the Refugee Review Tribunal (first Tribunal) on 17 November 2005. [In] 2007 the Federal Magistrates Court remitted the matter to the Tribunal and on 14 October 2007 a second Tribunal affirmed the decision under review.  [In] 2008 the Federal Magistrates Court ordered, by consent, that the matter be remitted to the Tribunal again. On 13 February 2009 a third Tribunal found that the applicant’s claims lacked credibility and affirmed the delegate’s decision.  The applicant unsuccessfully sought review of this last decision through the courts.[1] He subsequently sought the intervention of the Minister under s 417 of the Act without success. The applicant remained in Australia as an unlawful entrant from 5 August 2010.

    [1] [Deleted].

11. The applicant lodged a second application for a protection visa on 26 September 2013. This followed the introduction of the complementary protection criterion under s 36(2)(aa) of the Act and the decision of the Full Court of the Federal Court of Australia on 3 July 2013[2] which found that s 48A of the Act as it then stood did not prevent a person from making another protection visa application on complementary protection grounds when the earlier application had been determined only on Refugees Convention grounds.  

    [2] SZGIZ v Minister of Immigration and Citizenship (2013) 212 FCR 235.

12. As noted above this decision was upheld by a fourth Tribunal on 23 February 2016. The decision was remitted by the Federal Court [in] 2019.

    SUMMARY OF CLAIMS

13. The applicant claims that he fled China while facing charges relating to his involvement in protests in his local area in early 2005. According to his evidence this was linked to his election to a position on the [Village 1] committee in late 2004, which was never formalised. Shortly after he won that election a local man committed suicide because of the burdensome taxes he was required to pay. The applicant played a key role in organising protests following neighbour’s death which resulted in his arrest and brief detention in February 2005. He was released on bail pending trial after bribes were paid, but left the country before his case went to court. He also paid a bribe in order to leave the country. After his departure a warrant was issued for his arrest. He fears that he would be arrested and imprisoned and possibly killed if he returns to China.

    MATERIAL BEFORE THE TRIBUNAL

14. Copies of visa visitor applications date October 2004 and April 2005, Department file [number]; Refugee Review Tribunal file N05/52187 which contains a copy of the translation of the Certificate of the Villagers Committee Member issued in December 2004; RRT file 07/1641386; RRT file N0807105; Department file [number] which contains copies and translations of a wanted notice dated June 2005 and document relating to the applicant’s release from detention dated March 2005 and RRT file 1411823.

    FINDINGS OF FACT

    For the following reasons I did not find the applicant to be a truthful or a credible witness.

    The applicant’s employment in China

15. According to the applicant’s 2004 business visitor visa application he worked as Manager of [an Industry 1 company] for an unspecified period prior to 2002. After 2002 he worked as Deputy General Manager of [an Industry 2 company] from 2002.  According to a letter from the [Industry 2] company he was sent to Australia to conduct market research, learn about the business investment environment and negotiate with local businesses and government officials. According to an accompanying submission the [Industry 2] company had two workshops, three production lines and an annual output of RMB [amount].

16. According to his April 2005 visitor visa he had been employed at the [Industry 2] company which was located in [an industrial zone] for three years. He provided a letter from the company dated 10 April 2005 which confirmed his employment.

17. According to his May 2005 protection visa he worked for the [Industry 1] company from August 1998 until December 2004 as a Senior Manager. According to an accompanying statement he resigned from the company in December 2004 when he was elected President of his village.  

18. According to the first delegate’s decision, when questioned about the differing accounts of his employment in July 2005 he first said that he had provided truthful information in his visitor visa application, then said that he had to lie in order to obtain a visa for Australia. He also claimed that he had worked for both the [Industry 2] and the [Industry 1] company in China, but he had forgotten to explain this to his migration agent because his memory was affected by torture. He said that the April 2005 letter from the [Industry 2] company had been written by a friend.

19. The first and second Tribunals wrote to the applicant in September 2005 and August 2007 seeking respectively seeking clarification of his employment in China. According to his 2005 response he worked about five hours per day for the [Industry 1] company from August 1998 until December 2004 and about three hours a day at the [Industry 2] company from 2002 until August 2004. According to his 2007 response he worked 25 hours a week for the [Industry 1] company from August 1998 until December 2004 and 15 hours a week for the [Industry 2] company from January 2002 until August 2004.

20. According to the first Tribunal’s decision, during a hearing held on 27 October 2005 the applicant first said that he had resigned from the [Industry 2] company in August 2004 and from the [Industry 1] company in December 2004, but later in the hearing he said that he had resigned from both jobs when he was elected to the village committee in December 2004. The Member observed that this was at odds with his earlier evidence. His response was confused but he appeared to maintain that he resigned from both jobs in December 2004.

21. During the hearing of the third Tribunal on 15 January 2009 the applicant said that he had worked for two companies in China. He worked as deputy manager for a [Industry 1] company from August 1998 until December 2004 and also for a company [in Industry 3]. When the Member noted that this appeared to be at odds with his earlier evidence that he had worked for a [Industry 2] company, he said that the company had [done some Industry 2 work]. He said that he had stopped working for the [Industry 2] company in August 2004 because his health was not good so his wife told him to quit. The Member noted that this suggested he had ceased working for the [Industry 2] company prior to his first visit to Australia in October 2004. He said that he had memory problems because he had been beaten and that he had continued to work for both companies until December 2004.

22. The Tribunal asked how the applicant had been able to hold senior positions in both companies at the same time. He said that they were cottage sized companies in the village, that he obtained them through connections and that they employed many deputy managers. He said that he was responsible for administration and logistics. When asked for details he said that he looked after the company vehicles, property and sanitary systems.

23. In his protection visa application lodged on 26 September 2013 he said that he had been employed as senior manager at the [Industry 1] company from August 1998 until December 2004 and as vice general manager at the [Industry 2 company] from February 2002 until August 2004.

24. At a hearing of the fourth Tribunal on 2 October 2015[3] he said that he completed high school in about [year] after which he worked casually and often changed jobs. These jobs included working in a plant or factory, working for a [Industry 4] company and working as a [occupation]. In 1998 he obtained work at a [Industry 1] company located in [Fuzhou] with the help of a relative. He said that he spent 3 days a week working for the [Industry 1] company and three days working for the [Industry 2] company located in [Fuqing City], but also said he worked mostly for the [Industry 1] company. He ceased working for both companies in December 2004. The Member reminded him that he had previously stated that he had ceased working for the [Industry 2] company in August 2004. The applicant said he could not recall the exact time, but it was when he was elected to the village committee.

    [3] I obtained a transcript of this hearing. It frequently confuses Fuqing, Fuzhou and Fujian. I have relied on the recording not the transcript to clarify these matters.

25. The applicant’s evidence at the hearing on 9 March 2022 was confused. In essence he said he worked as a peasant farmer in [Village 1] until he was about [age] [about 1997] and that even after that he spent about half of his time working as a farmer in the village. I observed that this appeared to be at odds with his earlier claims. He said that he had worked in Fuzhou one or two days a week at a company owned by his brother-in-law, but he spent most of his time in his hometown where he worked on a farm. I noted that he had previously stated that he had spent part of the week working for the [Industry 1] company in Fuzhou and part of the week working for a [Industry 2] company in Fuqing. He said that both of these companies were owned by relatives or friends and his work was very flexible which allowed him to go and work in [Village 1] when he was needed.

26. I advised the applicant that I had difficulty understanding or accepting his account of his employment in China as he had provided inconsistent evidence. In particular I noted that he had given differing accounts of when he worked for the [Industry 1] company and the [Industry 2] company and that he had claimed for the first time at the hearing that he spent at least half of his time working as a farmer in [Village 1] until early 2005.  I also noted that he had claimed that he had done short term mostly unskilled jobs for about 10 years before obtaining senior management positions for a [Industry 1] and [Industry 2] company, which I found extremely unlikely even if he had family connections. I noted that he had sought to explain this unlikely situation by claiming that the companies he worked for were small businesses located in the countryside and he had been engaged to do relatively simple tasks liking filling cars with petrol and observed that this was at odds with other information he had provided which indicated that these were relatively large companies operating in modern industrial parks. I also noted that this was at odds with his evidence that the [Industry 2] company sent him to Australia in 2004 to investigate business opportunities. The applicant maintained that his claims were true. He said that all of his work was informal and all of the companies were managed by relatives or friends.

    Findings

27. I found the applicant’s evidence regarding his employment confused, contradictory and generally unpersuasive.

28. As pointed out at the hearing he has given differing accounts of where he worked, when he worked there, the nature of the businesses which employed him and the nature of his role within those businesses.  In my view these are not merely the inconsistencies which often arise when an applicant is asked to recount past events on a number of occasions.  For example, I do not accept that he would have forgotten whether he resigned from the [Industry 2] company in August 2004 because he in was in poor health and his wife advised him to do so as he initially told the third Tribunal, or in December 2004 when he was elected to the village committee in [Village 1] as he claimed later in that hearing. I note that he changed his evidence after the third Tribunal observed that it appeared that he had resigned from the [Industry 2] company before he came to Australia for the first time on a trip sponsored by that company. It appears that he changed his evidence to overcome this problem. I also find it impossible to reconcile his initial evidence that he worked in a senior position for a [Industry 2] company which sent him to Australia to investigate business opportunities with his later claims that the company was a cottage industry based in a village and his responsibilities included filling cars with petrol.

29. Where the applicant worked in China and when he worked there remains unclear. What is clear to me is that he has not provided an honest or accurate account of his employment.

30. Furthermore, whatever the truth about his employment, I do not accept that he spent half or more of his time working as a peasant farmer in [Village 1] until he left China in 2005. This claim was not raised until the March 2022 hearing when I advised him that I found it unlikely that he would have been elected to a senior position on the [Village 1] committee as he did not appear to have lived there for some time. I believe this claim was concocted at the hearing to bolster the claim that he was elected to the committee.  

31. In reaching this conclusion I acknowledge that it is now 17 years since the applicant arrived in Australia and applied for protection and that passage of time can result in confusion. However, the applicant’s claims regarding his employment have been confused and inconsistent since he first applied for protection in 2005 and I do not accept that the problems with his evidence can be explained in this way. I also acknowledge that applicants who have been tortured or ill-treated may have difficulty recalling past events.  However, no independent evidence has been provided which suggests that he has difficulty recalling past events as a result of torture or ill-treatment in the past. On the evidence before me I am not satisfied the applicant was unable to provide a coherent account of his employment because his memory was affected by past trauma.

    Places of residence

32. The applicant claims that he was born in [Village 1] but left there to work study, live and work in [Town 1], Fuqing City and [District 1], Fuzhou City. At the time he arrived in Australia he had household registration in Fuzhou.

33. By way of context, [Village 1], [Town 1], Fuqing City and [District 1] are in Fuzhou City.  All of these locations fall within the area administered by the prefecture-level city of Fuzhou. [Village 1] is one of [number] administrative villages located with the administrative division of [Town 1] which is under the jurisdiction of Fuqing City, which is a county-level city. Fuqing City is located about 60 kilometres from Fuzhou City, a journey of about one hour and ten minutes according to Google Maps. [Village 1] is located about [number] kilometres or [number] minutes by car from [Town 1]. [District 1] is one of six urban districts of Fuzhou City. 

34. All Chinese citizens are required to hold household registration (hukou) which impacts on where they can live and work.[4] Prior to 1984 rural to urban migration was strictly controlled and it was virtually impossible for people registered in a rural area to obtain an urban hukou, although migrant workers have worked illegally in cities for many years. Rules relating to registration began to change in 1984 when holders of rural hukou were permitted to enter market towns. Significant changes in the early 2000s made it easier for some people to obtain temporary registration work and work legally outside the place named in their hukou. More recently some holders of rural hukous have been encouraged to apply for urban hukous as this is seen as a way to stimulate the economy. Rules for changing registration vary according to the size of the city in which a person wishes to reside and may include criteria such as having stable accommodation, work and meeting residency requirements. An article published in 2020 states that until relatively recently residency requirements in cities in Fujian typically required five years’ residency in order to obtain urban registration. Some cities have reduced this to as little as one year and in some cases all that is required is the purchase of a house.

    [4] China’s Hukou System [What is the Hukou & How it Works] (nhglobalpartners.com); China’s Hukou System and the Urban-Rural Divide | The Regulatory Review (theregreview.org); China’s Migrant workers spurn cherished hukou. Financial Times 22 June 2020 type="1">

35. According to the visitor visa applications lodged in September 2004 and April 2005, the applicant lived at [Address 1] [District 1] Fuzhou at that time. When he began to live at that address was not stated, but in 2004 he provided what appears to be a translation of a household registration document which states that he had moved from [Village 1], [Town 1], Fuqing City on 2 July 2003 and an identity card issued by the Public Security Bureau (police) [in] 2003 which states that he lived at [Address 1] at that time.

36. According to the applicant’s May 2005 protection visa application he lived in [Town 1], Fuqing City from 1995 to April 2005 and attended [School 1] in Fuqing from [year] to mid-[year]. During the hearing of the third Tribunal on 15 January 2009 he said he had lived in Fuqing before coming to Australia, although how long he had lived there was not established. Apart from this his place of residence does not appear to have been raised in his discussions with the first delegate or the first three Tribunals.

37. In his protection visa application lodged on 26 September 2013 the applicant stated that he had resided in [Village 1] from birth until March 2002 after which he resided at [Address 1], [District 1], Fuzhou.

38. During the hearing of the fourth Tribunal on 2 October 2015[5] the applicant gave a confused account of his place of residence. He initially said that he lived in [Town 1] in Fuqing but lived on company premises in Fuzhou while working there. Later in the hearing he said that he had lived in a house belonging to his father [at Address 1] [District 1] in Fuzhou for about two years before leaving China and that his hukou was registered at that address. When the Member noted that he had previously stated that he lived in [Town 1] in Fuqing City, he said that Fuqing and Fuzhou City were very close and he moved between them. While in Fuqing he lived in his old house and while in Fuzhou he lived at the factory where he worked. The Member noted that he had previously stated that he had lived in a house owned by his father in Fuzhou for two years before leaving China. He said that his wife and children lived at that address, that his parents lived mostly in [Town 1] and that he lived wherever was convenient. He could not recall when he and his family first moved to Fuzhou City, but confirmed that his hukou was in Fuzhou City.  

    [5] I obtained a transcript of this hearing. It frequently confuses Fuqing, Fuzhou and Fujian. I have relied on the recording not the transcript to clarify these matters.

39. The fourth Tribunal asked why there was no mention of Fuzhou City in the protection visa application which he lodged in 2005. He said that he spent half his time in [Town 1] and he had forgotten to mention Fuzhou City. When the Tribunal noted that he had told the third Tribunal in 2009 that he and his family lived in Fuqing, he said that he and his family sometimes lived with his parents in Fuqing. When asked for clarification he said that he could not remember details. 

40. When asked how he came to be elected to the position on the village committee in [Village 1] if he did not reside there, he said that he had spent half his time there, but appeared to be referring to the fact that he was born and raised in the village, not that he spent half his time there until his departure.

41. At the hearing on 9 March 2022 the applicant confirmed that he had been born in [Village 1] and attended high school in [Town 1]. I asked how old he was when he left [Village 1] and where he had gone. He said that he left in his early 20s, but could not recall where he had gone.  After some thought he said that his hukou had been changed to Fuzhou and he went to live there. He could not recall when this occurred.

42. I observed that he had previously given differing accounts of when he lived in [Village 1], [Town 1], Fuqing and Fuzhou City and invited him to clarify where he had resided in China.  He said that he could not recall when he lived in different places. He grew up in in [Village 1], but sometime after he turned [age] his wife purchased a property in Fuzhou City and his hukou and hukou for his wife and children were transferred there. I observed that as he was born in [year] this suggested that he transferred his hukou to Fuzhou City sometime between 1997 and about 2000. He said that was probably correct, but he could not recall very well. 

43. I noted that the applicant had provided what appeared to be an amendment to his hukou with his business visitor visa application in 2004 and observed that this suggested that he had left [Village 1] and obtained an urban hukou in 2003. He said that he had definitely obtained a hukou in Fuzhou earlier than 2003, but he could not recall the year. I asked him if he could explain the significance of the document provided in 2004. He said that he did not know.

    Findings of fact

44. I accept that the applicant was born in [Village 1] and attended school in [Town 1] until about [year]. However, I found his evidence regarding where he lived following that time confused and unpersuasive. While I am not concerned about his inability to provide a precise and detailed account of where he lived in China, in my view his failure to provide a reasonably consistent account of where he lived and when he lived there suggests that he has not been entirely frank about these matters in his evidence to the Department and the Tribunal. Why he was reluctant to provide an honest and reasonably accurate account of his places of residence is not clear to me and where he lived after leaving school remains unclear, but he appears to have resided in Fuzhou City and held household registration there, probably from the late 1990s.

45. In any event, I do not accept that he lived mostly in [Village 1] from birth until his departure from China.  He claimed this for the first time at the hearing and as discussed above in relation to his employment, I believe that he did so in order to support the claim that he was elected to the village committee in [Village 1].  

    The applicant’s family’s situation following his departure

46. The applicant’s 2004 visitor visa application states that his family lived at [Address 1] in Fuzhou at that time. The 2005 visitor visa application also states that they resided in Fuzhou. His 2005 protection visa application does not say where his family were residing at that time, but as noted above, states that he had resided in [Town 1] from 1995 until 2005.

47. During the hearing of the third Tribunal on 15 January 2009 the applicant said that he and his family had lived in Fuqing before he left China but they moved to Hainan Province the day after he left for Australia because they could not live in Fujian. In Hainan they lived in a house rented by his wife’s brother and his children went to the local school using false names. He said that he had little contact with his family because his wife did not have a phone.

48. In December 2011 the applicant requested that the Minister intervene in his case and grant him a visa. In support of that application he provided a letter handwritten in English purporting to be from his daughter. It states that her family is suffering as they are being monitored and harassed by the local authorities and others including her classmates and that the authorities were looking for the applicant to arrest him. Beyond stating that she was in Fujian it does not give an address.

49. According to the second delegate’s decision, the applicant was asked about the letter from his daughter during an interview held on 27 May 2014. He said that his daughter had written the letter because the authorities were looking for him and had visited his family. He also claimed that he had spoken to his daughter by phone and she had given him more information. However, when asked for details such as how often his family had been visited and why the authorities were continuing to look for him, he failed to provide any more information.

50. At the hearing of the fourth Tribunal on 2 October 2015 the applicant said that his wife and children had continued to live in Fuzhou City after he left for Australia. The Tribunal reminded him that he had previously claimed they had left that address and moved to Hainan Province the day after he travelled to Australia. The applicant then said that they had hidden themselves in Hainan because the authorities were looking for him. He said that they had only run away for a short time and they continued to live in Fuzhou because that is where their hukou is. The Tribunal noted that his earlier evidence suggested that they had been in Hainan from 2005 until 2009. The applicant said that he could not recall the exact dates. The Tribunal noted that the letter from his daughter provided in 2011 made no mention of his family living in Hainan Province at any time. The applicant maintained that his family had gone to Hainan for some time.

51. At a hearing on 24 May 2022 the applicant said that his family were currently living in Fuzhou where they held household registration and had not lived anywhere else since he left China. He also confirmed that their household registration was in Fuzhou. I noted that he had previously said that his family had relocated to Hainan after he left China. He then said that his family had gone to Hainan to work and because the police were looking for him and they were scared. He said that he had forgotten this when I asked where they were. I asked roughly how long after he left China did his family go to Hainan. He said it was a long time ago and he could not recall.

52. I asked if his family had experienced any problems after he left China. He said that the government wanted to arrest him so they were scared. I asked again if they had faced any problems. He said that his daughter had written to him about the problems his family faced. I advised him that I had read the letter from his daughter and observed that it said nothing about his family relocating to Hainan. He said that his daughter might have missed some details because she was suffering from psychological problems due to the problems they had faced. I advised him that given his inconsistent evidence regarding his family’s situation I had difficulty accepting his evidence. He maintained that his claims were true and added that there were no human rights in China.

    Findings

53. I do not accept that the applicant’s family relocated from Fuzhou to Hainan Province the day after he left China. If this had been the case I believe he would have mentioned it without being prompted during his hearing with the fourth Tribunal and at the hearing in 2022. I also believe he would have recalled when his family went to Hainan and at least roughly how long they remained there. I believe he failed to recall or accurately recount these claims because he concocted them in 2009 to bolster his claim for protection and failed to recall what he had said when questioned on later occasions. I find this to be a strong indication that he is not a truthful or credible witness.

    Village committee election

54. Central to the applicant’s case is the claim that he was elected to a senior position on the village committee in [Village 1] in December 2004.

55. By way of context, democratically elected village committees were first introduced in China in the 1980s and by the mid-2000s they were well-established throughout the country. Fujian was one of the first provinces to establish village committees.

56. A report from the ACE Electoral Knowledge Network[6] provides a useful overview of how village committees function.  They are typically elected for three years and usually consist of three to seven members, including one chairperson and one or two vice chairs. Their role varies depending on the province but they generally oversee administration in the village. They are answerable to a village assembly which usually meets once or twice a year. All village residents aged over 18 can vote in committee elections. The period of residence in the village is not relevant. Villagers who reside elsewhere but continue to hold registration (hukou) in the village are entitled to vote, but must travel to the village to do so.  These villagers cannot vote in their usual place of residence or work as they are not registered there. Candidates are nominated directly by villagers. Winning candidates must achieve 50 per cent of the vote plus one. If this does not occur, a run-off election is held within three days. Winners take up their positions immediately.

    [6] China: Village Committee Elections: First Steps in a long March? >

    A 2007 report by Jude Howell[7] also includes a useful overview of the development of village committees and sets out some of the problems associated with these elections. It notes that there are variations in the way in which committees are elected and that while membership of the Chinese Communist Party (CCP) is not required, the party is quick to absorb new leaders. It also notes that there have been reports of malpractice including vote-buying, fraud, township officials interfering in the process to ensure the success of a favoured candidate and on occasion subverting the decision of the villagers.

    [7] Jude Howell, « Village elections in China: recent prospects, new challenges », Études rurales, 179 | 2007, 213-234. p. 213–234 (openedition.org)

57. In a statutory declaration dated May 2005 the applicant said that preparations for the election of a committee in [Village 1] began in November 2004. Two candidates were selected by officials but the villagers were not happy with these candidates and as he and his family had a good reputation they recommended that he stand for election. He decided to stand as a candidate because he believed that the communist government was a corrupt dictatorship and officials only wanted to benefit themselves. He was elected [in] December 2004. [In] December 2004 he was interviewed by a senior official from the local government who told him that he should wait for an official appointment letter which needed to be approved by officials in Fuqing. In early January 2005 villagers asked him to act on their behalf in relation to demands for reform, but he told them he had to wait until he was formally appointed to the village committee. His election had still not been confirmed when the villagers began protests in mid-January 2005. After his arrest in February 2005 he was told that he would never be officially appointed to the village committee because of his anti-government and dissident views.

58. In October 2005 the applicant provided the first Tribunal with a translation of a document headed Certificate of the Villagers Committee Member which was issued [on] 25 December 2004. It certifies that the applicant was elected to the position of Director of the Villagers Committee of [Village 1] at the 2004 election and states that the certificate is valid until the end of 2006. The translation was done by a NAATI certified translation. It is accompanied by a document in the Chinese language.

59. According to the third Tribunal’s decision the applicant said that he had been given the certificate on the afternoon of 25 December 2004. He asked his parents to forward a copy after being advised of the evidence which would be helpful by his adviser at the time. He repeated the essence of his earlier claims regarding the election.  

60. The issue of the applicant’s election to the village committee was discussed at length with the fourth Tribunal. The Tribunal pointed out that he had given differing titles or descriptions of the position to which he had been elected, but again claimed that while he had won the vote at the village election in December 2004 his appointment had not been formally confirmed.

61. At the hearing I noted that the applicant had not held household registration in [Village 1] since sometime before 2003 and did appear to have resided there for some years before that and asked why he contested the village election. He said that he wanted to do something for the village people and they voted for him because they knew he had a good name and some education and he could speak on their behalf.

62. I asked the applicant the significance of the certificate dated 25 December 2004 which states that he had been elected to the committee and suggests that it was valid until the end of 2006. He said that his election had not been confirmed and he had been told that he would be given a formal certificate later. He did not know why the certificate was valid until 2006.

63. On 24 March 2022 the applicant was invited in writing to comment on information from the ACE Electoral Knowledge Network which suggested that household registration is required in order to participate in village elections and that successful candidates take up their positions immediately. In response he said that according to government policy at the time a local hukou was not necessary to participate in village elections and all of his claims were true. He also said that government officials had announced the results of the election in [Village 1] orally and told those who were elected that they would receive an official appointment letter in a few days. The certificate he provided is the official appointment letter which he received a few days later. He said that he had recently learned that his wife had it been copied from the archives of a government department.

    Findings in relation to the village committee election

64. The applicant’s evidence regarding his election to a position on the village committee is at odds with independent evidence and I found it unpersuasive.

65. As noted above the independent evidence suggests that only those who are registered in a village can stand for election there. The applicant did not hold hukou for the village in 2004 and it appears that he was not eligible to stand for election to the village committee. In reaching this conclusion I have noted the evidence that the rules relating to village committee elections may vary and may be subject to illegal interference by local officials. However, I find it extremely unlikely that local officials would not have applied the rules relating to eligibility if they favoured other candidates for the position in question. Nevertheless, the evidence on this point is not entirely clear and I might have given the applicant the benefit of the doubt on this issue if this had been the only problem with his evidence, but this is not the case.  

66. I found the applicant’s evidence regarding his status following the vote on December 2004 and the significance of the certificate which bears that date confused and contradictory. His recent claim that the certificate was obtained by his wife, presumably after he left China, is at odds with his evidence to the third Tribunal that it was given to him on the afternoon of the election on 25 December 2005.  The claim that he was unaware that the certificate dated December 2004 was formal confirmation of his appointment is also at odds with his evidence prior to March 2022.  According to his 2005 statement he was told by an official that he had to wait for confirmation of his election and that he had still not received any confirmation when he was arrested in February 2005 and told he would never be appointed to the position because of his anti-government views when he was arrested in February 2005.

67. I do not accept that the applicant was confused about his status on the village committee or the significance of the certificate prior to March 2022 as a result of a misunderstanding and changed his evidence to rectify this. I believe his evidence regarding his election to the committee and the status of the certificate were confused because his claims are untrue and he changed his evidence in an attempt to overcome this problem.

68. After considering all of the evidence and in light of my earlier findings regarding the applicant’s credibility, I do not accept that he was elected to the village committee in [Village 1] in 2004. I find that he concocted this claim because he believed this would support his application for protection in Australia.

1. In reaching this conclusion I have considered the certificate which purports to confirm his election to the committee. However, as pointed out at the hearing it is not difficult to obtain false documents in China. I note that the applicant has also claimed that just about anything can be achieved in China with money. In these circumstances I am not satisfied that the certificate provided by the applicant is genuine and I have given it no weight.

   Post-election developments

2. The applicant claims that he was forced to flee China after he was detained as a result of his involvement in demonstrations by the villagers in [Village 1] early 2005 which he led or supported. 

3. In his 2005 statement the applicant said that when villagers asked him to act on their behalf following the December 2004 election the villagers asked him to act on their behalf and ask for reforms such as lower taxes. Because they had voted for him in the election he told them he would help, but he would have to wait until he was formally appointed. In mid-January one of the villagers committed suicide because the burden of taxes meant he could not support his family. After this, hundreds of villagers protested and he was elected to represent them in negotiations with officials. At his suggestion the villagers held sit-in demonstrations in [Town 1] and Fuqing City.  Because of his leading role in these activities he was arrested [in] February 2005. While in detention he was mistreated and tortured and forced to confess. He was released [in] March 2005 after his wife paid a large bribe to the police. He had to promise not to organise any more protests and report to the police weekly. Many local people were willing to help him. One of them used her contacts in the travel industry to help him leave the country.

4. The applicant told the third Tribunal that he had been able to leave China on his own passport despite being wanted by the police because he had paid a police officer to ensure that there was no mention of his detention in his personal file.

5. In 2013 the applicant provided a single page document in the Chinese language accompanied by a translation which states that it is headed “Wanted” and states that the applicant has been wanted from 17 June 2005 in relation to a riot in [Town 1] on 20 January 2005 which caused a lot of destruction. A photograph of the applicant is attached.  He also provided A single page document in the Chinese language which is partially completed by hand. According to an accompanying translation it is headed Certificate of Releasing Detention and states that the applicant had been in detention from [February] 2005 to [March] 2005 when he was released because the detention had expired.

6. The applicant told the second delegate that his wife had sent these documents to him in 2011 when he asked her to check if he was still wanted by the police. Someone downloaded the wanted notice from an internal police network for his wife who paid him for this help.

7. The applicant repeated the substances of his earlier claims submissions to the second delegate and fourth Tribunal. When asked why the certificate relating to his detention did not suggest that he had been released on bail he said that did not know but maintained that he was released with reporting conditions and still faced charges. He said that he had only reported to the police for three weeks because he was ill and his wife paid a bribe so that he no longer needed to comply with this requirement. The Tribunal noted advice from DFAT and the Canadian Immigration and Refugee Board which stated that China had a computerised national police network and departing passengers were checked against this list and asked how he had been able to leave the country on his own passport.[8] He agreed with the Tribunal’s information regarding police checks but said that an agent had helped him. The Tribunal also advised him of DFAT advice which indicated that it is possible to obtain false documents in China. The applicant maintained that his documents were genuine.

   [8] IRBDC China: Whether the Public Security Bureau has set up a national computer network for information sharing…whether a link to police computer network is available at international airports (2006-May 2009, 2 July 2009 CHN103133.E.

8. At the 2022 hearing the applicant repeated the substance of the claims regarding his activities and the problems he faced in early 2005. 

9. I noted that he had provided a document which said that he was released from detention [in] March 2005 because his detention had expired. I observed that this appeared to be at odds with his claims that he had been released on bail while still facing charges and that he had been subjected to reporting conditions.  He maintained that he had been required to report on a weekly basis and said that he did not know why this was not reflected in the release certificate.

10. I observed that the fact that he had been able to leave the country without difficulty suggested that he was not of interest to the authorities for any reason at that time. He said someone had helped him and anything was possible if you had money. I noted that he had claimed that he was able to leave the country because he had paid a bribe so there was no record of his detention on his personal file and observed that this suggested he would not face any problems if he returned to China now.  He said that he was still wanted by the authorities and if this was not the case he would have returned to China.

11. I advised him that as I had pointed out during the hearing, I had concerns about many of his claims. I also advised that it was my understanding that it was not difficult to obtain false documents in China and observed that some of the documents he had provided could have been manufactured by anyone with a Chinese language computer and a printer.  I advised him that if I concluded that his claims lacked credibility, I may also conclude that these documents are not genuine. The applicant said that his claims were true and his documents were genuine.

    Findings in relation to the applicant’s problems after the 2005 election

12. I do not accept that the applicant was arrested and detained in early 2005 because he played a leading role in protests by villagers in [Village 1]. He claims that he was residing in late 2004 and early 2005 in [Village 1] and that he played a leading role in events largely because he had been elected to a position on the local village committee.  As discussed above, I do not accept that he resided in [Village 1] in late 2004 or early 2005 or that he was elected to a position on the village committee. Furthermore I find his evidence where he lived and worked prior to leaving China and the circumstances of his family since his departure lacking in credibility. In these circumstances and in the absence of a credible and persuasive account of how he came to be in [Village 1] during the period in question and how he came to play a leading role in protests there, I am not satisfied that he had any involvement in demonstrations in [Village 1] in 2005 or that he was arrested or detained by the police because of this. I believe that he concocted these claims in order to obtain protection and continue to reside in Australia.

13. As there is no credible evidence before me which suggests that the applicant was of adverse interest to the authorities in China at the time of his departure, while I accept that he may have paid an agent to assist him to obtain a visa for Australia, I do not accept that he used an agent or paid bribes to facilitate his departure from China. I believe he left legally on his own passport in a normal manner.

14. In reaching this conclusion I have considered the wanted notice and the document purporting to document the applicant’s claimed release from detention. As pointed out at the hearing DFAT advice indicates that it is possible to obtain false documents and in my view both of these documents could have been produced by anyone with a Chinese language computer and a printer. I believe that these documents were obtained or manufactured on the applicant’s instructions in order to support his false claims for protection in Australia.

    The applicant’s passport

15. At the hearing I noted that the applicant had obtained a passport from the Consulate General in Australia to replace the one which had expired and asked why he obtained a passport from a government he feared. He said that he needed an identity document and said he had not been able to obtain a passport from the Embassy. He did not know why. However, after he paid $2,000 to someone in a shop in Campbelltown near the Embassy they issued him with a genuine passport.

16. In light of my findings on the applicant’s overall credibility, in particular my rejection to the claim that he is wanted by the Chinese authorities, and in the absence of any credible evidence which suggests that he would have been unable to get a Chinese passport without paying a bribe, I do not accept that he paid $2,000 to someone in a shop in Campbelltown to obtain it.

    CONCLUSIONS

17. It is now over 17 years since the applicant first applied for protection. During that time he has been interviewed by two delegates and attended four Tribunal hearings, including the hearing conducted this year. In these circumstances it is not surprising that he might not remember precise details of the circumstances which preceded his departure from China or that there may be some inconsistencies in the evidence he has provided at different times. However, there have been inconsistencies in his evidence since he first applied for protection and after considering all of the relevant evidence and taking into account these issues, for the reasons set out above, I am not satisfied that he is a credible witness and I do not accept that he fled China because he feared arrest, detention or significant harm of any kind at the hands of the Chinese authorities because he had been involved in protests in [Village 1] or anywhere else in 2005 or at any other time. I believe he made these claims solely in order to obtain protection in Australia.

18. There is no credible evidence before me which suggests that the applicant faces a real risk of experiencing significant harm if he returns to China now or in the reasonably foreseeable future for any reason. I am therefore not satisfied that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that he will suffer significant harm.

19. 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).

    DECISION

20. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Roslyn Smidt
    Member