2014047 (Refugee) - [2024] ARTA 640

2014047 (Refugee) [2024] ARTA 640 (6 November 2024)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Home Affairs

Tribunal Number: 2014047
Tribunal:Senior Member J Marquard
Date:6 November 2024

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

Statement made on 06 November 2024 at 12:30pm

CATCHWORDS
REFUGEE – protection visa – China – imputed political opinion – threatened and attacked by business competitors with connections to police – complained to local government and claimed compensation – late claims of owning own business, being hospitalised after attack, partner being arrested, and ongoing harassment – vague and contradictory claims and no corroborative evidence – arrived on transit visa applied for by agent and applied for protection visa the next day – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (4)(b), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Sch 1, item 1401, Schedule 2, Part 866
CASES
AVQ15 v MIBP [2018] FCAFC 133
Chan v MIEA (1989) 169 CLR 379
Chand v MIEA (unreported, FCA, 7 November 1997)
Guo Wei Rong and Pan Run Juan v MIEA (1996) 40 ALD 445
MIAC v Khadgi (2010) 190 FCR 248
Randhawa v MILGEA (1994) 52 FCR 437
Sivalingam v MIMA [1998] FCA 1167
Sundararaj v MIMA [1999] FCA 76
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

The applicant has sought review of a decision made by a delegate of the Minister for Home Affairs on 16 September 2020 to refuse to grant him a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND TO THE REVIEW
The applicant is a citizen of China. He was born in [Year] in Fuqing, Fujian province.
He first arrived in Australia [in] August 2018. He said in his application that he was a ‘transit passenger’. His records show that he arrived on a CZ 301 Subclass TX – 771 visa, which ceased [in] August 2018. This kind of visa allows a person 72 hours to transit through Australia.
He applied for the protection visa which is the subject of the review on 7 August 2018.
The Department of Home Affairs (the Department) as delegate for the Minister, refused to grant the visa on 16 September 2020.
The applicant lodged the application for review with the former Administrative Appeals Tribunal (the AAT). On 14 October 2024 the AAT was abolished and replaced with the Administrative Review Tribunal (the Tribunal).
If a proceeding commenced in the AAT but was not finalised before 14 October 2024, such as this one, it must be continued in the Tribunal in a manner that is efficient and fair. Anything done in, or in relation to, the proceeding before 14 October 2024 continues to have effect for the purposes of, or in relation to, the proceeding after that date. Anything done in, or in relation to, the proceeding before 14 October 2024, that was validly done according to the applicable law at the time is taken to be valid under, or to have been done according to the law as it is now, for the purposes of proceeding after 14 October 2024. Anything done in, or in relation to the proceeding before 14 October 2024 by the AAT is taken, after that time, to have been done by the Tribunal: item 24 of Part 5 of Schedule 2 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth).
This is a review of the decision of the Department by the Tribunal.
SUMMARY OF RELEVANT LAW AND PRINCIPLES OF REVIEW
The applicant has applied for a Permanent Protection (Class XA) (Subclass 866) visa.[1] Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of s 65 of the Act. If granted, a Permanent Protection (Class XA) (Subclass 866) visa permits a non-citizen to remain in Australia indefinitely.
[1] See Migration Regulations 1994 (Cth), Sch 1, item 1401; Sch 2, cls 866.1 to 866.611.
Australia acceded to the 1951 Convention relating to the Status of Refugees[2] in 1954 (the Convention) and to the 1967 Protocol relating to the Status of Refugees[3] in 1973, thereby undertaking to apply their substantive provisions. For protection visa applications made after 16 December 2014, the refugee definitions in the Act apply, which draw on concepts from the Convention definitions.[4]
[2] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954).
[3] Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).
[4] The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014 (Cth) (No 135 of 2014) amended s 36(2)(a) of the Act to remove reference to the Convention and instead refer to Australia having protection obligations in respect of a person because they are a ‘refugee’.
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). Extracts of the relevant legislative provisions are set out in Attachment A to this decision.
An applicant must establish that they:
·     are a refugee (the refugee criterion);[5] or
·     qualify for complementary protection (the complementary protection criterion);[6] or
·     are a member of the same family unit of a person who has been granted a protection visa on refugee or complementary protection grounds (family member criterion).[7]
[5] Section 36(2)(a) of the Act.
[6] Section 36(2)(aa) of the Act.
[7] Sections 36(2)(b) and (c) of the Act.
Refugee criterion
Section 36(2)(a) of the Act 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, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail him or herself of the protection of their country of nationality: s 5H(1)(a) of the Act.
Under s 5J(1) of the Act, a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. There must be a real chance that he or she would be persecuted for one or more of those reasons, and the real chance of persecution must relate to all areas of the relevant country.
The reason must be the essential and significant reason or one of the reasons for the persecution. The persecution must involve serious harm and systematic and discriminatory conduct (s 5J(4)). Indicative examples of serious harm are set out in s 5J(5) of the Act.
Conduct engaged in by an applicant in Australia must be disregarded unless the applicant satisfies the Tribunal that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee (s 5J(6) of the Act).
A person does not have a well-founded fear of persecution if effective protection measures are available (s 5J(2)) or if the person could take reasonable steps to modify his or her behaviour (s 5J(3)) although there are exceptions to this, set out in the provision. Effective protection measures are defined in s 5LA of the Act.
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-5LA of the Act, which are extracted in Attachment A to this decision.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s 36(2)(a) of the Act, he or she may nevertheless meet the criteria for the grant of the visa if there are 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) of the Act.
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) of the Act, which are extracted in Attachment A to this decision.
EVIDENCE CONSIDERED IN THE REVIEW
The Tribunal has taken into consideration the application for the visa and supporting documents produced to the Department, migration records and evidence before the Tribunal.
The applicant appeared before the Tribunal on 18 September 2024 to give evidence in relation to the issues arising in the review. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was provided with an overview of Tribunal processes and the relevant law. The matter was part-heard and adjourned until 26 September 2024. At the second hearing an interpreter also assisted the Tribunal and the applicant confirmed that he could understand the interpreter well.
The Tribunal has also considered the Refugee Law Guidelines and Complementary Protection Guidelines prepared by the Department.[8]
[8] These are mandatory considerations as prescribed by Ministerial Direction No.84, a direction made under s 499 of the Act (‘Direction No.84’).
The Tribunal has taken into account independent information about China, including the Department of Foreign Affairs and Trade (DFAT) Report prepared for protection status determination purposes.[9]
[9] These are also mandatory considerations under Direction No.84.
The evidence and material before the Tribunal is referred to where relevant in the findings. The findings incorporate reference to information that the Tribunal has found to be material to the determination of the issues in the case.[10]
[10] The Tribunal notes that it is not required to make explicit reference to every relevant piece of information before it because not all relevant considerations will be central or fundamental to every case. See Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271.
FINDINGS AND REASONS
The Tribunal has determined that the decision under review should be affirmed.
The reasons for this are set out below.
Nationality
For the purposes of the refugee criterion, s 5H(1) of the Act refers to a person being a refugee if they are outside the country ‘of nationality’. Section 5J(1) refers to this country as a ‘receiving country’.
For the purposes of the complementary protection criterion, s 36(2)(aa) refers to a person being removed to a ‘receiving country’, which is defined as a country of which the applicant is a national, to be determined solely by reference to the law of the country.
The applicant has a passport from China. The Tribunal is satisfied on the basis of his passport and testimony that the applicant is a national of China, and that China is the receiving country for the purposes of the legislation.
Family and background
The Tribunal accepts the information provided in the application about the applicant’s background and family. There is no reason to doubt this information.
The applicant was born in Fuqing City, [Town], Fujian Province. He told the Tribunal at hearing that he lived there his whole life until he came to Australia.
The applicant said at the Tribunal hearing that prior to departure for Australia he lived with his parents in the family home. He has a [sister] who has now married and is living in the same municipality with her husband. His parents are still living in the same house that he lived in.
His grandfather passed away a long time ago and his grandmother passed away four years prior to him coming to Australia. He has uncles, aunts and cousins in his hometown.
His parents are farmers. They farm peanuts and sweet potatoes.
The applicant was married on [Date] in China. He has [children]. They are in [School years] and the youngest is aged [Age]. He could not remember their exact ages. They are living with their mother and are at school. He said that he is regularly in contact with them.
In his application he said that he had ‘no religion’.
Visa to travel to Australia
The applicant first arrived in Australia [in] August 2018. He said in his application that he was a ‘transit passenger’. His records show that he arrived on a CZ 301 Subclass TX – 771 visa, which ceased [in] August 2018. This kind of visa allows a person 72 hours to transit Australia. It can be used to enter Australia by air before joining the crew of a ship.
At the Tribunal hearing he told the Tribunal that he already had a passport when he decided to visit Australia. He was asked what visa he used to travel to Australia. He said that it ‘seemed to be a tourist visa at the time’ with three months’ duration. He said that after moving to Australia [in] August 2018, he rented a house on his own. He used his money from China to pay for this.
The applicant was asked by the Tribunal why he came to Australia [in] August 2018 on a ‘transit’ visa which would only permit him to remain in Australia for 72 hours. He was asked where he was travelling to after his transit in Australia. He said that he asked the agent for a ‘travel visa’ and came to Australia by air. Asked where he was going after the 72 hours, he said that he told the agent the visa he wanted was a ‘travel visa’ but he does not know what visa the agent applied for.
The Tribunal put to him that he applied for a protection visa within one day of arrival, and asked how he knew how to apply for a protection visa. He said that his friend told him to come to Australia and apply for a protection visa.
The Tribunal finds it difficult to understand how he would not be aware that he only had a visa for 72 hours, particularly as he applied for a protection visa the day after arrival, such that he must have had some sort of premeditated plan to do so.
Principles of credibility assessment
In assessing credibility of claims, the Tribunal is mindful of cross-disciplinary research about the fallibility of memory particularly given the particular stressors which asylum seekers face. Research has concluded that generally, memory is not fixed, indeed it is selective and fragmentary.[11] Memory may be impaired by emotion, and affected by information a person receives after encoding an event.[12]
[11] Prof U Ecker, ‘Memory, Misconceptions, Mechanisms, Fallibility’, University of Western Australia, Australian Academy of Law.
[12] Prof U Ecker, ‘Memory: Misconceptions, Mechanisms, Fallibility’, University of Western Australia, Australian Academy of Law.
Research in Canada has found that refugee decision makers have unreasonable expectations of memory, and that ‘decades of psychological research’ has demonstrated that memory is incomplete and changes over time, and that inconsistencies in testimony should not be used ‘mechanically’.[13]
[13] Hilary Evans Cameron, ‘Refugee Status Determinations and the Limits of Memory’ (2010) International Journal of Refugee Law, Volume 22, Issue 4, 469–511< >
Decision makers can also fall into the trap of relying on unfounded assumptions. An Australian study found that Tribunal members may rely on assumptions which can be inconsistent with psychological literature.[14] Madeline Holland in a paper on Narrative and Credibility in the United States’ Political Asylum Applications argues that the stories of asylum seekers are evaluated for their truthfulness ‘on the basis of criteria that align with Western literary standards of veracity’. That is, ‘Western literary standards shape our understanding of what a “true story” should sound like’.[15] The Tribunal is cognisant that omissions, and differences between accounts, are normal features of everybody’s memories (van der Kolk 2014) and that memories represent only short time segments of an experience, rather than a complete record (Hohl & Conway 2016).[16]
[14] Hunter Dowd, Liddell, McAdam, Nickerson and Bryant, ‘Filling gaps and verifying facts: Assumptions and credibility assessment in the Australian Refugee Review Tribunal’ (2018) International Journal of Refugee Law, 30(1), 71–103, noting however that the authors acknowledged that the study ‘sets out assumptions in the abstract, rather than in the context of the full decision’ which ‘does not always allow comprehensive reflection of the full logic behind the Tribunal member’s reasoning, nor consideration of the totality of the evidence presented.’
[15] M Holland, ‘Stories for Asylum: Narrative and Credibility in the United States’ Political Asylum Application’, Refuge: Canada’s Journal on Refugees, 10 December 2018.
[16] Australia Institute of Criminology, ‘Trends and issues in crime and criminal justice’, November 2020,< Misconceptions of sexual crimes against adult victims: Barriers to justice (aic.gov.au)>.
The Tribunal acknowledges, in light of this research, that it should take a reasonable approach to credibility assessment based on evidence and not assumptions or cultural or social bias. The Tribunal is cognisant of the particular complexities in presentation of evidence in asylum cases. The Full Federal Court in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167 referred to these difficulties as follows:
refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.
Experiences in an applicant’s home country may lead to nervousness and anxiety in presenting evidence to government authorities. Presentation may also be impacted by cultural behaviours, mental health issues or level of education, as well as stress caused by separation from home and family. An applicant may forget dates, locations, distances, events and personal experiences due to lapse of time or other reasons.[17]
[17] AAT, Migration and Refugee Division Guidelines on the Assessment of Credibility, available on the AAT Website, <>
The objective of taking a ‘reasonable approach’ to fact-finding, given the various impacts on presentation of evidence, is supported in numerous judgments[18]. Burchett J stated in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:
… understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
[18] See for example Full Federal Court case in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133.
The Tribunal is mindful in assessing evidence to consider this research and the legal principles discussed above. The Tribunal is not, however, required to accept uncritically any and all of the claims made by an applicant (Randhawa v MILGEA (1994) 52 FCR 437).
Did the applicant have a fishing business of his own in China?
At the first Tribunal hearing the applicant confirmed that everything he said in his application for the visa was true and correct.
In his application for the visa the applicant claimed that:
‘I persecuted by officials due to I reporting the unfair practices of government officials and corruption in collusion with government officials. I was running the fishing business in my home town. The business was good and better than other competitors all the time. One day a group of people came to our fishing boat beat us and threatened us. Later I found out that the people were sent by our competitors. I called the police, but the police didn’t care about us. Later I have been told the police was a relative of our competitors. They used their power to force us to close the business. I was very angry that I wrote a letter asking the government to investigate official misconduct and compensate our lost. Unexpectedly, the government not only ignored our case, but also sent police to arrest us, saying that we were defaming officials. I was so scared that I had to flee China and come to Australia. Please protect me’.

The Tribunal does not accept that the applicant had his own fishing business in China, for the following reasons.
At the first Tribunal hearing the applicant said that he attended primary and secondary school in China, and that when he finished secondary school, he started a job farming [produce 3], working for an employer. He harvested the [produce 3] and gave them to his employer who then sold them to the markets. The company he worked for had about ‘ten plus’ employees. Asked if it was a successful business, he said it was not stable as it depended on the market. He was paid based on how many [produce 3] he harvested.
The applicant told the Tribunal at the first hearing that he had this job until he came to Australia, but sometimes in his free time he went away for work as well. He would do [job tasks] from time to time. He worked both in Fujian and other provinces.
He told the Tribunal that he heard from friends in Australia about travel to Australia. He arranged his travel through an agent. He decided to come because they ‘had a lot of children and were relatively poor’ so he wanted to come to Australia to make some money. His friends had also told him that Australia was ‘more civilised’.
At the second Tribunal hearing, the applicant commenced his evidence by providing some different evidence to that he had adduced at the first Tribunal hearing. He said he had told the Tribunal at the first hearing that he was in China [doing a job task]. He said that in fact he had his own boat and one day people from his competitors came and physically assaulted him. He said that at the time police were working with his competitors.
The Tribunal asked him some questions about this business, given that he had not mentioned it in his evidence at the first Tribunal hearing when asked what employment he had from the completion of school until he travelled to Australia.
He was asked, at the second Tribunal hearing, when he purchased his own boat. He said ‘when he started his fishery business’. He was asked when this was. He said that it was in 2017. He said that he funded the boat from his parents’ income from farming and his own labour. He fished ‘mainly’ yellow croaker and sea bass. He partnered with one person and they hired two workers. He said that ‘procurement people came after we harvested the fish’. He said that they ‘grew the fish’ and then when they were big enough, people would buy the fish. He said that it was aquaculture rather than fishing. They had to purchase fish nets for this and they circled the area and got workers to feed the fish. He said that it was a successful business as he ‘grew fish better than my competitors’. Asked how much profit he made, he said that there was no profit. He had to buy baby fish so there was no weekly profit. Asked where he got them from, he said that he got them from suppliers. He was asked if he made enough to pay salaries for themselves and their workers and he said that they did. He said that his business was registered, but he does not have the papers now although at the time he had a permit and registration certificate.
The Tribunal does not accept the evidence which was adduced at the second Tribunal hearing that the applicant purchased a boat and had an aquaculture business. As discussed with him at the second Tribunal hearing, he changed his evidence from the first hearing when he said that after finishing secondary school, he started a job farming [produce 3], working for an employer. He told the Tribunal details about his employment, saying that he harvested the [produce 3] and gave them to his employer who then sold them to the markets and the company he worked for had about ‘ten plus’ employees. He said that he worked in this job until he came to Australia, but sometimes in his free time he went away for work as well. He would do [job tasks]. He worked both in Fujian and other provinces. He did not mention owning an aquaculture business at the first Tribunal hearing although asked to provide details of his life from secondary school until he travelled to Australia.
At the second Tribunal hearing, when asked why he had changed his evidence, he said that he was still going to mention the aquaculture but the first hearing had been adjourned. As put to him at the second Tribunal hearing, the Tribunal does not accept this explanation as he had specifically been questioned about his employment from school until he came to Australia and did not mention having a boat or a fishing business. Instead he told the Tribunal that he worked in [produce 3] farming for an employer until he came to Australia.
The Tribunal does not accept therefore that the applicant had his own aquaculture business. At the first Tribunal hearing he set out his work history saying he worked for a company harvesting [produce 3] and did some [job task] and labour work on the side. He did not mention an aquaculture business. He told the Tribunal that he worked for the company harvesting [produce 3] and was living at home until he came to Australia, where he decided to visit to make some money. The Tribunal accepts this evidence. The Tribunal is of the view that the evidence about the aquaculture business was added at the second Tribunal hearing in order to be consistent with his application which he had since re-read, but were this information to be true, he would have discussed it when asked specific questions about his jobs at the first Tribunal hearing. Furthermore, he was unable to provide any documents for the business, which presumably he could have obtained if there had in fact been a business in place.
Did the applicant report business competitors for an assault which led to harassment and arrest?
As the Tribunal does not accept that the applicant had an aquaculture business and a boat, the Tribunal also does not accept that competitors boarded the boat in 2017 and attacked the applicant and fellow workers.
Furthermore, his evidence about this claimed incident was not persuasive given there were contradictions between the evidence given at the Tribunal hearings and evidence to the Department, and there was no corroborative evidence.
At the second Tribunal hearing he said that his aquaculture business was doing well. He said that one day a gang of six men boarded his boat and beat him and his partner, but they did not beat the two females who were working on the boat. Asked if he said anything to them when they boarded, he said that they embarked and he asked them why they were there. He said that the competitors said nothing and just started beating them. He said that he had never seen the assailants before.
He told the Tribunal at the second hearing that as a result of the attack his leg was broken with a stick and he was in hospital for one month. Asked if he had his hospital records to show to the Tribunal, he said that he did not, ‘after all it has been many years’. He told the Tribunal that the other workers were not beaten, only he was, because he was ‘acting tough’ when the assailants started damaging the property.
He told the Tribunal at the second hearing that he called the police from the boat but later found out from his business partner that the people who had assaulted him were relatives of his competitors. His partner was told this by a friend of his. The police did not come when he called them.
The applicant was asked at the second hearing if his business partner is still living in China. He answered that his business partner was imprisoned three months after the applicant departed for Australia. Asked for what reason his partner was imprisoned he said that ‘their product was better than their competitors’. He told the Tribunal that his business partner was imprisoned ‘for a few years and only released in 2023’.
The applicant told the Tribunal at the second hearing that he ‘wandered around’ from November 2017 to August 2018 before he came to Australia as he was too scared to go back home. The Tribunal asked him where he lived. He said that he lived ‘outside’. Asked what he meant by living outside, he said that he ‘stayed outside’.
He said that the competitors continued to threaten him on his boat after he was released from hospital and that they came to his home.
He was asked if there was anything else he wanted to tell the Tribunal about why he fears returning to China. He said that he wants to stay in Australia as he works and studies and pays taxes. He mentioned that Australia is a civilised country, and the environment and bureaucracy are better than in China. He said that he is studying English. Asked if there was anything else he wanted to tell the Tribunal he said that there was not.
The evidence at the second Tribunal hearing summarised above was different to that in his Department application. In his Department application, he did not mention being taken to hospital for a month, his partner being arrested, or having to go into hiding, or ongoing harassment.
The Tribunal does not accept that after the alleged assault on the boat, the applicant was hospitalised for a month. As put to the applicant at the second hearing, had he been hospitalised, it would be expected that the applicant would have mentioned this in his application for the visa as it was strong evidence of past harm. The applicant commented that he only provided a ‘brief summary’ in his application, but even in a summary, it would be expected that he would include key incidents such as being in hospital for a month.
The Tribunal does not accept that the applicant’s partner was imprisoned for a few years and was released in 2023. This was new evidence only presented when the Tribunal asked the applicant if his partner was still living in China. The applicant did not include this evidence in his evidence to the Department. Furthermore, the reason he gave for the imprisonment, that their business was doing better than the competitors, did not appear to be a valid reason for imprisonment at all, let alone for a few years. When the applicant was asked why this evidence was not included in his application he said that he did not mention specifics in his application. The Tribunal is of the view that if his partner had been imprisoned this would have been an important aspect of his narrative to relay to the Department as it would have indicated that he too could have been harmed. The Tribunal does not accept that his partner was arrested.
The Tribunal does not accept that the applicant was ‘moving about’ and not living at home or living ‘outside’ from November 2017 until August 2018. This was not evidence presented at the first opportunity for describing what happened to him, in his application form. Furthermore, he confirmed to the Tribunal at the first hearing that everything he said in his application form was true and correct. At the beginning of the first Tribunal hearing he told the Tribunal that he had lived in the family home prior to departure for Australia, and had lived there his whole life. His later evidence, at the second Tribunal hearing, that he was hiding outside the home, conflicts with the earlier evidence. His evidence about his whereabouts, being ‘outside’ was vague and not persuasive. The Tribunal is of the view that this evidence about hiding was only added when the Tribunal asked him how he was able to live there safely from November 2017 until October 2018 without suffering harm, and that in fact he was not in hiding.
The Tribunal does not accept that the competitors continued to threaten the applicant on his boat after he was released from hospital, or that they went to his home. These claims were made at the second Tribunal hearing but were not claims made in his application. Furthermore, as discussed further below he told the Tribunal at the first hearing that he came to Australia to earn money and did not say that he travelled to Australia to escape harassment.
The Tribunal also does not accept the applicant’s evidence about the assault by competitors or harassment by police because at the first Tribunal hearing when asked why he travelled to Australia he said that he left China because he had many children and wanted to make money in Australia. He did not mention that he left because of ongoing harassment by competitors or police. At the second hearing when asked why he did not tell the Tribunal about the assaults and harassment by police when asked why he came to Australia at the first hearing, he said that it was because the first hearing was ‘half a hearing’. He said that he also wanted to make money for his family and had heard that Australia was civilised. The Tribunal acknowledges that the matter was only part-heard, but notes that the applicant was asked a specific question about why he travelled to Australia and if harassment had been the cause it is reasonable to expect that it would have been mentioned.
There were also other discrepancies between the applicant’s evidence in the application and his evidence at the second Tribunal hearing. In his application he said that, ‘I was very angry that I wrote a letter asking the government to investigate official misconduct and compensate our loss. Unexpectedly, the government not only ignored our case, but also sent police to arrest us, saying that we were defaming officials. I was so scared that I had to flee China and come to Australia’. At the Tribunal hearings the applicant did not mention writing a letter to the government to investigate misconduct or provide compensation. He was given the opportunity to describe the incidents which took place and to provide any extra evidence. When asked why he did not tell the Tribunal about a letter to the government or police being sent to arrest him, he said that he did write a letter but it was ignored and police were sent, saying he defamed officials. He said that they sued him claiming he was defaming officials. He said that the police came to his house, and he ran away in November 2017. At the second Tribunal hearing the Tribunal asked him why he did not refer to these incidents during the hearing when asked to relate what happened to him. He said that ‘it happened’ but he did not mention it because he was not asked about it. The Tribunal had specifically asked him to relate what happened in China when he was assaulted, and after, and he did not provide evidence of a letter. This omission leads the Tribunal to conclude that no letter was sent and the police were not sent to arrest him.
The Tribunal considers that these inconsistencies are material to the claims made, rather than being irrelevant and peripheral details. The inconsistencies are of such a stature that they impact on the overall consistency and coherence of the applicant’s account. The court noted in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 that a decision maker can consider inconsistencies in assessing credibility, but it is the evidence as a whole that should be assessed, and the significance of the inconsistency within that context. The Tribunal has considered the evidence in its entirety and not in isolated parts, an approach supported in a number of cases including Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 7 November 1997) and the former Administrative Appeals Tribunal Migration and Refugee Division ‘Guidelines on the assessment of credibility’.[19] The Guidelines state that the Tribunal must consider all evidence before it assesses whether contradictions, omissions or inconsistencies are material to an applicant’s claims and would lead to an adverse finding of credibility.[20]
[19] AAT, Migration and Refugee Division, ‘Guidelines on the Assessment of Credibility’, available on the AAT Website, AAT, Migration and Refugee Division, ‘Guidelines on the Assessment of Credibility’, available on the AAT Website, >
In Guo Wei Rong and Pan Run JuanvMinister for Immigration and Ethnic Affairs and McIllhatton,[21] Foster J stated that ‘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’. There may for example, be instances where applicants have lied or exaggerated about one aspect of the evidence. However, specific lies do not indicate that the applicant’s entire evidence is untrustworthy. Professor Hathaway refers to decisions of the Immigration Appeal Board in Canada, and states:
Even where the statement is material, and is not believed, a person may, nonetheless, be a refugee. “Lies do not prove the converse.” Where a claimant is lying, and the lie is material to his case, the [determination authority] must, nonetheless, look at all of the evidence and arrive at a conclusion on the entire case. Indeed, an earlier lie which is openly admitted may, in some circumstances, be a factor to consider in support of credibility.[22]
[21](1996) 40 ALD 445.
[22] J Hathaway, The Law of Refugee Status, Butterworths, Canada, 1991, p.86.
A similar conclusion was reached by Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [191]:
the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. While parts of the evidence may be embellished, other aspects of the evidence may be credible.
In this case, when considering the evidence in totality, including the lack of corroborative evidence (such as hospital records), the inconsistencies are so integral to the claims made that the Tribunal is not satisfied that the claimed incidents took place. The Tribunal is not satisfied that the applicant had a fishing business, that he was assaulted by competitors, that he wrote a letter to government authorities, that police or competitors harassed him, that he was in hiding or that his partner was arrested.
The Tribunal is not satisfied that the applicant was assaulted and harassed as claimed for the above reasons and further, there has been no corroborative evidence provided, such as witness statements or hospital records.
Does the applicant have a well-founded fear of persecution for one of the reasons set out in the legislation?
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.
The next issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation.
The concept of ‘well-founded fear of persecution’ is further defined in s 5J of the Act. It provides that a person has a well-founded fear of persecution if:
·     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·     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 above; and
·     the real chance of persecution relates to all areas of a receiving country.
The Tribunal has considered first whether there is a real chance that if the applicant returned to China he would be persecuted. Section 5J(4)(b) of the Act provides that the persecution must involve serious harm. The Tribunal must assess whether there is a real chance of serious harm in the reasonably foreseeable future.
The Tribunal asked the applicant what he feared returning to China, given that the incidents he claimed happened took place in 2018. He said that his business partner had only recently been released and he fears his business competitors would threaten him and beat him up again. He also claimed that they have relatives in the police, stating that rich people are often corrupted and the authorities might seek him out.

For a person’s fear of persecution to be well-founded, there must be a real chance that, if the person returned to the receiving country, the person would be persecuted. Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s 5J(1)(b) of the Act, provides an objective element to that concept, not only must a person fear persecution, there must also be a prospect of that fear being realised.
The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s 5J of the Act, that Parliament intended that this same threshold be used to assess claims under s 5J of the Act.
The Tribunal is not satisfied on the evidence provided that the applicant had a fishing business in China, that competitors boarded his boat and attacked him, that he was hospitalised for a month, that he wrote a letter to authorities, that his business partner was imprisoned or that he faced ongoing harassment from police or the competitors. Reasons for these findings are set out earlier in this decision.
The Tribunal is not satisfied therefore that there is a real chance (that is a non-remote or substantial chance)[23] of any kind of harm from his competitors or the police were he to return to China in the reasonably foreseeable future. The Tribunal is not satisfied on the evidence provided that there are any competitors who are seeking him out or would wish to do so in the future. The Tribunal is also not satisfied that the police or authorities have any interest in the applicant, given that the Tribunal has not accepted the applicant’s evidence about adverse interest by the police in the past and there is no other evidence to suggest competitors or authorities will be interested in him in the future.
[23] Chan v MIEA (1989) 169 CLR 379.
The Tribunal is not satisfied therefore that the applicant has a well-founded fear of persecution for any of the reasons set out in the legislation.
Does the applicant meet the complementary protection criterion?
If a person is found not to meet the refugee criterion, he or she may nevertheless meet the criteria for the grant of a protection visa if there are 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 (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life, or the death penalty will be carried out on the person, or the person will be subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
The Tribunal has not accepted that the applicant was beaten up by competitors or hospitalised as a result. The Tribunal has not accepted that the applicant was harassed by competitors or police while in China. Reasons for this are set out earlier in this decision. The Tribunal has found that the applicant does not face a real chance of serious harm from competitors or authorities. For the same reasons, as the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’, the Tribunal is not satisfied that there is a real risk of any of the kinds of significant harm set out in the legislation.
The Tribunal is not satisfied therefore that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China there is a real risk of significant harm.
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).
DECISION

102. The Tribunal affirms the decision not to grant the applicant a protection visa.
Date(s) of hearing: 19 and 26 September 2024.
Representative for the Applicant: Not represented.
ATTACHMENT A - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…