2101471 (Refugee)

[2023] AATA 2579

2101471 (Refugee) [2023] AATA 2579 (29 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Harry Huang (MARN: 9579277)

CASE NUMBER:  2101471

COUNTRY OF REFERENCE:                   China

MEMBER:Catherine Carney-Orsborn

DATE:29 June 2023

PLACE OF DECISION:  Sydney

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

Statement made on 29 June 2023 at 5:52pm

CATCHWORDS
REFUGEE – protection visa – China – Federal Court remittal – fear of harm from gangster after attack on applicant’s mentor and applicant, and mentor’s death – initial inaction by police and applicant’s complaint to government – detained, abused and accused of anti-government opinions – departure on own passport while on bail after guarantor paid bribes – family harassed and threatened – country information – strictly regulated exit procedures – delays in departing after visa granted and in applying for protection – new passport issued while in Australia – vague, inconsistent and implausible claims and evidence – authenticity of documents – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 91R
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33
SZEPZ v MIMA (2006) 159 FCR 291

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 (the Department) to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of China, applied for the visa on 26 August 2014. The delegate refused to grant the visa on 22 July 2015 on the basis that the applicant was not a person in respect of whom Australia has protection obligations.

3. On 18 August 2015, the applicant applied for review of refusal to grant him a Protection visa with the Tribunal. On 18 November 2016, the First Tribunal held an in-person hearing with the applicant. On 25 January 2017, the First Tribunal affirmed the Department’s decision.

4. On 15 February 2017, the applicant commenced judicial review proceedings against the First Tribunal’s decision in [court case number]. On 24 September 2019, the Federal Circuit Court of Australia dismissed the application. On 4 October 2019, the applicant filed an application at the Federal Court of Australia for judicial review against the Federal Circuit Court’s decision in [court case number]. On 3 February 2021, the Federal Court of Australia remitted the matter to the Tribunal for determination according to law. The Federal Court of Australia found that the First Tribunal fell into jurisdictional error because its reasoning was illogical in respect of the Guarantor document submitted by the applicant as evidence of his claims.

5. The matter is now before the present Tribunal pursuant to an order of the Court.

6. The applicant appeared before the Tribunal on 27 June 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. The applicant was represented in relation to the review.

   What information can be considered on remittal?

8. Where a direction is given to reconstitute the Tribunal, the AAT Act requires the reconstituted Tribunal to continue the proceeding.  In completing a reconstituted review, the Tribunal may have regard to any record of the proceeding as previously constituted.  This includes any record of evidence taken in the proceeding. The Tribunal must determine the review by dealing with the issues as they present themselves at the time of its determination and according to the facts as the Tribunal finds them to be at that time.

9. In SZEPZ v MIMA (2006) 159 FCR 291, a Full Court of the Federal Court found that, where an RRT decision has been set aside by a court and the matter remitted for reconsideration owing to a jurisdictional error, it does not follow that all the steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the material that was obtained when the decision that had been set aside was made and is obliged to continue and complete the particular review and not to commence a new review.

10. In conducting the review, the Tribunal has considered the material provided to the Tribunal and the oral evidence given at the previous hearing held by the Tribunal, differently constituted.

    RELEVANT LAW

11. The criteria for a Protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a Protection visa of the same class.

    Refugee criterion

12. Section 36(2)(a) provides that a criterion for a Protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

13. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

14. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

15. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

16. Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

17. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

18. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.

19. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

20. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

21. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

22. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of a Protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of 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’).

23. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). 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.

24. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

26. The issue in this case is whether the applicant is a person in respect of whom Australia owes protection obligations.

27. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

28. The present Tribunal has before it the Department file, the First and present Tribunal files.

29. The Department file contains copy of the delegate’s decision record, copy of the applicant’s foreign passport biodata page, application forms for a Protection visa, change of address form dated 8 September 2014, copy of English translation of a death certificate for [Mr A], copy of an English translation of a death certificate for [Ms B], copy of an English translation of a Decision on Guarantor Pending Trial document, copy of the First Tribunal’s decision record dated 25 January 2017, notification of grant of Bridging visa to the applicant, copy of a Department’s request to attend interview dated 22 June 2015, and a request to the applicant to provide biometrics.

30. The First Tribunal file contains copy of the application for review of refusal to grant a Protection visa dated 18 August 2015, copy of the delegate’s decision record and notification of refusal to the applicant, change of contact details form from the applicant, applicant’s request to the Tribunal to issue Medicare letters, a Tribunal in-person hearing invitation for 14 November 2016, a hearing response form from the applicant, copy of a statutory declaration from the applicant confirming his claims for protection dated 4 November 2016, part 1 of the Tribunal hearing recording, copy of the First Tribunal’s decision record dated 25 January 2017, copy of notification of Tribunal’s decision and outcome to the applicant and to the Department, copy of a Notice of filing of application at the Federal Circuit Court of Australia dated 15 February 2017, copy of the Federal Circuit Court’s judgment dated [in] September 2019, copy of a Notice of filing of application and hearing details at the Federal Court of Australia dated 4 October 2019, copy of the Federal Court of Australia’s judgment dated [in] February 2021, and correspondence from the applicant’s representative advising the Tribunal of Court remittal to the Tribunal dated 4 October 2022.

31. The present Tribunal file contains copy of the applicant’s contact details form, a Tribunal’s acknowledgement of Court remittal letter to the applicant dated 9 February 2021, appointment of authorised representative form from the applicant, applicant’s requests to the Tribunal for the issuance of Medicare letters, copy of the applicant’s movement records, and a pre-hearing attendance form.

32. The following information was provided by the applicant in his application for Protection visa to the Department.

33. He is from the Fujian province, of the Han ethnicity. He is a fluent speaker, reader, and writer of the Mandarin language. He does not identify with any religion. He is separated and has two children out of his marriage. His mother, [brothers], sister, wife, and children all reside in China. He attended primary and secondary school in China. His occupation in China was [an Occupation 1]; however, in Australia he declared being unemployed. He declared that he owned a [business] in China from May 2005 to December 2009 after having worked as [an Occupation 1]. He later worked in a [workplace] in Inner Mongolia also as [an Occupation 1] from March 2010 to January 2014. He first arrived in Australia as the holder of an Australian Visitor visa [in] May 2014.

34. The applicant fears that he will face arrest and imprisonment by the State authorities if he returns to China. He claims he will also face harassment and harm at the hands of a ‘town bully’ named [Mr C].

    Nationality

35. The applicant claims to be a citizen of China. A copy of the applicant’s passport was provided. The applicant is a Chinese citizen. The applicant claimed to both the Department and the First Tribunal that he is not a citizen of a third country or that he holds a third nationality. The Tribunal has assessed the applicant’s claims against China as his country of nationality for the purposes of the Convention and his receiving country for the purposes of s 36(2)(aa).

    Protection visa interview

36. The applicant attended an interview with the Department on 14 July 2015. The delegate and the applicant discussed the applicant’s claims for protection.  The Department’s decision, which was provided to the Tribunal, has set out the discussion at interview.  

37. The applicant spoke about the events that lead to him being involved with [Mr C] and being detained. He said that he had a master named [Mr A] with whom he was having dinner [in] February 2014. It was [during] the Chinese Spring Festival. The applicant said that he returned to China from Inner Mongolia to celebrate the festivity. The applicant said that while having dinner, [Mr C] arrived at [Mr A]’s home. The applicant claimed that [Mr C] told [Mr A] to sell his house to him within 2 weeks otherwise someone would occupy the property. A fight broke out and the applicant ended up being hit with a stick in the forehead.  A chair was thrown at [Mr A]’s head.

38. The applicant said to the delegate that he ended up in hospital in a coma for three days. That his master, [Mr A], also ended up in hospital but died there. That the applicant sustained a concussion. That [Mr A]’s daughters reported the events to the police, but they were told that they were understaffed because of the holidays. That when the applicant went to report the incident himself to the police, he was told that he had to wait for the investigation to continue.

39. The applicant explained that he was dissatisfied with the police’s action and so he decided to seek attention and justice. He said he was arrested [in] March 2014 in his village along with many other people ([number] people) who went to Beijing to complain. That he was arrested because of his master’s issue which had been reported to the city government. That in the four weeks between his hospital discharge date and him coming to Australia, the applicant approached the Public Security Bureau (‘PSB’) in Fuqing city, the anti-corruption bureau in Fuqing city, the Fuqing TV station, the Streets Metropolitan Times, and the Fuqing people’s radio station. That he wanted to get justice that way and expose corruption.

40. The applicant said to the delegate that while in detention police abused him and forced him to confess that he had spread anti-Chinese government rumours. That he was detained two days and two nights. Then he was sent to detention where he spent three weeks, he was bailed out on [date in] March. The applicant said that he was asked to squat near the toilet so people could sit on him, that he was asked to kneel and face the wall.

41. The applicant said that he was charged with spreading anti-Chinese rumours, that he was convicted of it. That he believed he was charged because he said to the police officials that they were not investigating his master’s issue because surely, they were protecting someone. The applicant said to the delegate that he was ordered to report to police every week. That his case was not finalised even though he was bailed out. That he left China when his case was at this stage to his knowledge. That a friend was his guarantor when being bailed out.

42. The applicant said that he had problems leaving China. That a friend of his named [Mr D] paid some unknown amount of money to airport staff so the applicant could leave the country. The applicant said that his same friend [Mr D] had filled out his application for an Australian tourist visa. That he also had assisted the applicant in getting work in Mongolia. The applicant said that he had no idea what information had been put into his Australian tourist visa application. The applicant declared that [Mr D] who bailed him out of prison did not charge him money to bring him to Australia because [Mr D] was involved in the issue back in China. That the applicant would be in a position to disclose sensitive information in prison affecting [Mr D].

1. The applicant could not explain to the delegate why [Mr D] helped the applicant bailing him out and to leave the country. That he did not know the consequences of him disclosing the information confided to him by [Mr D] would affect [Mr D]. That he did not apply for a Protection visa a lot sooner or shortly after having arrived in Australia because he was not familiar with Australia.

   The First Tribunal’s decision

2. The Tribunal has access to partial recording of the hearing audio for the hearing that the applicant attended with the First Tribunal on 18 November 2016. The applicant was represented at the hearing. It was confirmed at hearing that the applicant’s claim was based on political opinion and that the applicant was against the Chinese Communist Party (CCP).

3. The applicant confirmed to the First Tribunal how the events unfolded the night [in] February 2014 as recorded by the Department.

4. At the beginning of the hearing, the applicant claimed that [Mr C] had demanded to buy [Mr A]’s house prior to his home visit [in] February 2014. That [Mr C] offered $70,000-$80,000 RMB to [Mr A] for his house.

5. The applicant stated that he remained in hospital 3 days, had no operations but had some bruising and wounds to his neck and back.

6. The applicant was told to wait for the investigation after he went to the anti-corruption body of the PSB. It was clarified at hearing that the PSB was the police. The applicant said that he reported the incident to the police after he was released from hospital. The applicant said that by the time he had been to report the events to the police, two daughters of [Mr A] had reported the events to the police already.

7. The first Tribunal did not accept that the applicant the criteria for the grant of a Protection visa due to inconsistencies in his evidence and inadequate evidence including difficulties with the tendered documents.

   The present proceedings

8. On 20 June 2023, the Tribunal received pre-hearing submissions from the applicant.

9. The applicant provided in a statement dated 20 June 2023 the following.

10. The applicant’s mother has been harassed by the local PSB and police since the applicant last appeared before the Tribunal in November 2016. The applicant claims that because he appeared before the Tribunal he is now regarded as a ‘dangerous person’ who spreads rumours about the CCP and incited people against the CCP, who has violated bail conditions, and who has fled overseas.

11. It is claimed that the applicant’s mother was approached by the local police and PSB between 2020 and 2022. The applicant claims that while attending her household to conduct Covid19 testings she was asked by local authorities about the applicant and reminded her to tell the applicant to return home for lenient punishment.

12. That on 5 May 2023, the applicant’s mother was last approached by [Mr E], a newly appointed police officer taking carriage of unresolved cases of the [local] PSB.

13. On 27 June 2023 the applicant appeared before the Tribunal.  The Tribunal explained that the matter had been remitted to the Tribunal for reconsideration.  The Tribunal stated that it had before it the information supplied by the applicant to the Department and the previously constituted Tribunal.

14. A summary of the oral evidence taken by the present Tribunal is as follows.

15. The applicant provided some background information.  He has been in Australia since 2014. He is working [in workplaces] in Australia.  He has his mother, son and daughter living in China.  He has [number] brothers and one sister in China.

16. The Tribunal asked the applicant why he feels he cannot return to China.  He said words to the effect that he cannot return because he will be at risk from [Mr C].  He stated that even this May someone came to his mother’s house and urged him to return to China to turn himself in. The Tribunal asked who this person was. He responded it was [Mr E] who is now in charge of unresolved cases in his area.

17. The Tribunal asked him to expand why he was fearful. He responded that there was a case in 2014 and he can not return to China.  He claims that he was arrested, and he had to confess to being anti the communist party in China so he could get bail. He said he confessed to inciting the public and being involved in anti-communist activities.

18. The Tribunal asked the applicant to expand. He stated that he was arrested because there was a fight with his teacher/Master regarding a property and he wanted to go to a high official; however, they did not want him to bring it to the high officials. He claimed this was due to corruption.

19. The Tribunal asked if anyone else was arrested. He claims that he was the only one who was arrested and went to the police. 

20. When questioned further he stated that some other people were arrested in regard to their cases.  He stated that he was the only one arrested regarding the fight over the property.  He clarified that he was the only one arrested at his village.

21. The Tribunal asked for further clarification of what happened.  He responded with words to the effect that during the fight his teacher was beaten to death.  The Tribunal asked who beat him to death.  He responded that several thugs led by [Mr C].

22. The Tribunal then asked for more details.  The Tribunal noted it was a serious crime and stated that in his earlier statements he had said that the victim’s daughters had gone to the police to report the crime.  The applicant then agreed that the daughters had reported the crime to the police. 

23. The Tribunal asked why the daughters were not arrested for reporting the crime.  He responded that they simply reported it and the police told them to wait as they were short staffed due to the Spring Festival.

24. The Tribunal said that independent Country Information previously discussed with him by the Department delegate indicated that the police would act on such a serious crime and seek to keep order.  He agreed that normally they would investigate such a crime but when the daughters reported it, they were told to wait due to the Spring Festival.

25. The Tribunal asked for further information on why he would be targeted.  He stated that the police cover for each other.  He stated that the gangster who beat his teacher had an influential background.  He claimed that the gangster’s parents worked in local prosecution and his uncle works in the security department.  The Tribunal asked what position the uncle held he responded that he knew he was a police officer but did not know what position.

26. The applicant claims he was arrested on his way to make a petition to the officials from Beijing.  He claims that [Mr C] (the gangster) had already threatened him that he will be caught and convicted by the Chinese government.  The Tribunal asked if he was the only one arrested in his village. He responded that he was.

27. The Tribunal then put it to the applicant that in his statement he had said that [number] people from his village were arrested on their way to put in petitions to the officials from Beijing.  He responded that this was correct as they had their own issues.

28. The Tribunal queried whether the applicant suffered any injuries.  He responded that he was in hospital and was beaten until he lost consciousness.  He claims that he was injured all over his body and in at least 6 or 7 areas.  He claims this happened in February.  He claims that he is not anti-communist he was just trying to report a crime. 

29. The Tribunal then discussed with the applicant his latest submissions.  He stated that since he appeared before the Tribunal he is in danger as the authorities know he has put in a claim for protection.  He confirmed that they now know and have threatened his mother. 

30. The Tribunal put to the applicant that all applications for a Protection visa are treated confidentially, and his name would not be published on the web or made available.

31. He responded with words to the effect that the Chinese authorities have doubts as he has stayed in Australia for such a long time.  The Tribunal put to the applicant that he claims that they have doubts about him, however, they have issued him with a new passport.  He agreed they have issued him a new passport.

32. The Tribunal asked the applicant words to the effect of if there were any other reasons that the authorities would be concerned about him or why he would come to their attention.

33. He responded that the only reason was that he had agreed in detention that he was anti-communist.

34. The Tribunal clarified that the applicant was claiming he was charged and then given bail.  He responded that this was correct.

35. The Tribunal asked how he was able to exit China if he was on bail.  He responded that his friend [Mr D] paid the bribe and the bail.  The Tribunal asked why [Mr D] would put up a large amount of money and risk his safety by assisting him flee while on bail.  He responded that he was [Mr D]’s driver, and they had a good relationship.  He responded that [Mr D] had sympathy for the applicant.  The Tribunal asked if [Mr D] was a powerful man.  He responded that he is a businessman and could help him get out of China. 

36. The Tribunal discussed country information which had been discussed with the applicant previously at interviews with the Delegate and set out in the Department’s decision, that it would be almost impossible to exit from an international airport in China on his own passport if he was of any concern to the authorities.

37. He responded that he had to use special means.

38. The Tribunal discussed with the applicant that the police must have been very concerned when they found he had left the country.  He responded that they were.  The Tribunal asked why they would not cancel his passport so that he would be denied entry through Australian customs.  He just responded that his passport was not cancelled.

39. The Tribunal then discussed with the applicant the document he provided to the Department entitled Decision on Guarantor Pending Trial. The document is a photocopy of a document written in Chinese. The Tribunal stated that the document lists the applicant as a “farmer” which according to his own evidence on all the files including the Department file is incorrect.  The applicant responded that the occupation on his Hukou was used, and he is a farmer on his Hukou.  He claims that this is the case and even though he was [Occupation 1] he is listed as a “farmer” on his Hukou.

40. The Tribunal discussed with the applicant that he has stated several times that he was charged with being anti-communist; however, the document says he was charged with “disturbing the public order”. He responded that it is the same thing.

41. The Tribunal discussed with the applicant that he was granted a visa to enter Australia on 30 April 2014.  He responded that his friend was able to organise all that.

42. The Tribunal queried why if he was so fearful, he did not leave China immediately but waited for another month and arrived in Australia [in] May 2014. He responded with words to the effect that he had to wait and officials at customs had to be bribed. The Tribunal discussed with the applicant why he then waited further months until he lodged a claim for protection in Australia.  He responded that he was not sure and could not speak English and had to consult with people.

43. The Tribunal again queried the applicant as to why he was the only one arrested in relation to the fight.  The Tribunal pointed out that murder is a serious crime.  He responded that he was the only one arrested.  In his previous evidence he stated that he and [number] villagers were arrested.

44. The Tribunal discussed with the applicant his claim that he was detained for three weeks.  The Tribunal asked why he was allowed bail given the charges against him of inciting anti-communist behaviour was viewed very seriously in China.  He stated that a condition of his bail was that he admit to being anti-communist.  He claims that after he admitted to being anti-communist, he would be unable to report crime to officials.

45. The Tribunal pointed out that it had asked him several times about why he was arrested, and he claimed that he was the only one from his village that was arrested and that he was arrested and detained as he tried to report crime to officials from Beijing. 

46. The Tribunal pointed out that in his written statements and earlier evidence he had provided a list of media organisations he had contacted, however, he did not discuss this at hearing. The applicant simply responded that he did mention the media.

    Country Information

    Exit and leave procedures

47. At hearing the Tribunal discussed with the applicant the DFAT country information which was from 2015 and was put to the applicant at the interview and listed in the delegate’s decision.

48. DFAT confirmed in its 2021 country report on China that the exit and entry procedures remain one of the strictest: Exit and entry is strictly regulated. The government knows when people enter or leave the country through air and seaports. It uses artificial intelligence, facial recognition software and biometric databases to check passenger identities and to check identity documents for fraud. Various government agencies can feed data into databases including from to tax, customs, police or judicial authorities. This technology is used to create an exit control list. The way that list works is not clear and bans may appear arbitrary.[1]

    [1] DFAT Country Information Report People’s Republic of China December 2021 (‘DFAT Report 2021’) [5.31].

49. National security might be cited as a reason for refusing permission for a person (or those associated with them) to leave the country – an exit ban may only become apparent at the airport when travel is attempted. Exit bans are sometimes applied to family members of people residing outside China to coerce the foreign resident to return to China to face charges. Those suspected of a crime, persons of interest on ‘national security grounds’, activists and human rights defenders may be refused a passport upon application or, if they already have one, may be prevented from leaving the country due to being on an exit control list. DFAT is also aware of instances where members of certain ethnic minority groups have been denied passports.[2]

    [2] Ibid [5.32].

50. If a person is on an exit control list it is very unlikely, probably impossible, that they would be able to leave China. DFAT has not seen evidence of compassionate exemptions being granted to a person for family and health reasons. There is a legitimate risk that family members of an individual under investigation by Chinese authorities could be subject to an exit ban. This is not only for sensitive charges but also economic charges such as fraud.[3]

    [3] Ibid [5.33].

51. DFAT assesses it is almost impossible to exit China without authorities’ knowledge. It is difficult or impossible to forge identity documents that would be able to be used in practice and technology and algorithms (rather than a human official who may be liable to bribery) may make decisions. Even if a human does inspect the document an ordinary citizen would find it difficult to bribe border protection agents because of sensitivities to corruption, and the professional and comparatively well-paid status of public security officials.[4]

    [4] Ibid [5.35].

    Passports

52. DFAT reports that according to the Passport Law (2006), ordinary passport applicants must apply in person to the Entry-Exit Control Department of the Ministry of Public Security or the authorised county-level bureau where their hukou is registered, and documents substantiating the reasons for their application. Once approved, a passport is generally issued within 30 days.[5]

    [5] DFAT Country Information Report People’s Republic of China 3 October 2019 (‘DFAT Report 2019’) [5.56].

53. Passport applicants must provide their RIC (resident identity card), hukou, recent photos, an application form and, if required, permission to enter and reside in the country to which they are intending to travel. Renewal might also require a certificate of Chinese nationality…

54. The term of validity of an ordinary passport is 10 years (five years for a person aged under 16). Passport applications may be refused if a person is serving a prison sentence, is a defendant in a criminal case, or is a criminal suspect. According to Freedom House, the government has refused passports to millions of people on these grounds, many of them religious and political dissidents, including Uyghurs and Tibetans.[6]

    [6] DFAT Report 2021 above n 1 [5.39]—[5.40].

    Document fraud

55. In general, fraudulent documents in China are very common and the scale of fraud is unmatched anywhere in the world. Fraudulent documents and the criminals who create them are highly sophisticated. Criminal syndicates may provide a suite of documents to asylum applicants. As most applications for visas are made online there is further opportunity to doctor copies of genuine documents that are uploaded into the system.[7]

    FINDINGS AND REASONS

    [7] Ibid [5.45].

    Does the applicant have a well-founded fear of persecution?

56. In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters.  This involves assessing the credibility of the applicant’s claims. The Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.

57. The Tribunal found the applicant to be a witness who lacked credibility. The Tribunal found the applicant to be vague, unpersuasive and implausible. The Tribunal has the following concerns about the applicant’s evidence which cause the Tribunal to question its veracity:

    Documents provided to the Department

100.   The applicant provided documents to the Department.  The A4 documents are a photocopy which is written in Chinese.  The applicant provided a translation of the documents.

101.   The first document which is headed “Decision on Guarantor Pending Trial” lists the applicant as a farmer when he has always previously declared himself to have had various occupations but never a farmer.  He explained this as he was listed as a farmer on his Hukou.  No copy of his Hukou was provided.

102.   No originals of any documents were provided to the Tribunal.

103.   The translation of the guarantor document states the case in the heading of the matter is a different name to the applicant’s name.  Further down in the first sentence the applicant’s name is listed.  The document stated that the guarantor is [Mr F] and no security bond has been placed on the suspect.  This is inconsistent with the applicant’s oral evidence that his friend [Mr D] paid Bail/security to secure his release.  The document refers to “She” on the document’s third paragraph. 

104.   The Tribunal does not accept that no security bond would be placed on the applicant given his evidence is that he was charged with what is considered a serious crime in China which would result in no high officials listening to his petition in relation to his teacher/Master’s death at the hand of gangsters.

105.   The applicant also provided two photocopies of Certificates of Death.  One in relation to [Ms B] who is listed as dying from heart failure and under the heading “Important information which might not have been related to the cause of the death but promoted the death” there is “NIL”. The second Certificate of Death for [Mr A] states he was a farmer and lists “beaten” as situation that resulted in death.  The applicant’s evidence is that [Mr A] was his master who had taught him how to be [an Occupation 1] at his [business] which [provide specified services] and that was why he was so attached to him. He never spoke of him as a farmer.

106.   The documents have the appearance of photocopies or templates.  The Tribunal has not been provided with any original documents. Due to the concerns with the documents the ease with which they could be altered, and the independent Information discussed with the applicant by the Delegate on fraudulent documents in China, DFAT 3 March 2015 which was relevant to the time in question, the Tribunal does not accept them as genuine and finds they have been produced to assist the applicant achieve his preferred migration outcome of staying in Australia.

107.   The applicant claims he cannot return to China as in February 2014 thugs and gangsters attacked his teacher, he fought with them and as a result his teacher died, and he suffered serious injuries which required hospitalisation.

108.   He claims that he reported the matter to the police.  He claims that the police did not act as the thugs were connected to officials and the police through family connections.

109.   He claims that if returned to China, he and his family will be at risk of serious harm at the hands of authorities and the gangster element in his hometown.

110.   He claims that due to his efforts to seek justice and petition officials from Beijing he was put in detention and only after he confessed that he was against the communist regime he was allowed out on bail.  He claims that all bribes and Bail amounts were paid by [Mr D].  He claims he was the able to leave China on his passport with a tourist visa to stay in Australia.  He has been in Australia since 2014 and works in [work sector].

Consideration of claims

111.   The Tribunal has several concerns about the applicant’s claims.  His oral evidence lacked detail and the Tribunal several times had to ask for more information and clarify what had just been said. There were also inconsistencies in his oral evidence.  Those inconsistencies may be small when looked at individually, but when weighed up with all the available evidence they point to the applicant not being honest in his claims to fear harm from the authorities in China.

112.   The applicant at hearing claimed several times that he was the only one who reported the crime.  He claims he was the only one in his village arrested.

113.   In his previous evidence to the Department and to a differently constituted Tribunal he had stated that the victim’s daughters had tried to report the crime.  He claims that the police told them they were short staffed due to the Spring Festival.  When queried why the daughters were not harassed or arrested, he simply responded that they accepted that the investigation could wait due to Spring Festival.

114.   In his previous evidence he had stated that [number] villagers had been arrested with him.  When queried why he had not mentioned this in his oral evidence, he responded that he had.  He stated that the other villagers had their own concerns.

115.   In his oral evidence the Tribunal had queried several times that he had done nothing more than tried to get the matter reported and wanted to petition officials from Beijing.

116.   When the Tribunal queried why he had not mentioned that he had spent some time approaching several media outlets as set out in his written claims he gave a disingenuous response that he had mentioned them.  He gave no details of his claims to have approached several media outlets.  The Tribunal would have considered that approaching media outlets would have been an important part of any claim to fear the authorities as they are mainly controlled by the communist authorities. He did not provide any detail or information other than his own assertions.

117.   The Tribunal put to the applicant several times that what he was describing was a serious crime and that independent country information, discussed with him previously, indicates that China has a functioning police force that keeps order and investigates crimes. The Tribunal does not accept that the victims’ daughters would accept the inaction of the PSB on the murder of their father in his own home, as being due to the Spring Festival and being short staffed.  During such times, a police force has to maintain public order and a serious crime would be investigated. The Tribunal does not accept that the victims’ daughters would have been left alone by the same forces that he claims want to harm him for reporting the crime or that they would have accepted that their father’s death could not be investigated, and no-one brought to justice due to staff shortages.

118.   The Tribunal does not accept his claim that he was the only one targeted by the police for reporting the crime.

119.   The applicant claims he was bailed and while on bail was able to leave China on his own passport. He claims that he was able to do this as his friend paid bribes. The Tribunal asked for more information; however, he was unable to persuasively verbalise why his friend would spend amounts of money and risk himself and his family to assist the applicant leave China except to say he was sympathetic to him.  He claimed consistently that [Mr D] put up the Bail money however the document he provided stated that no security bond amount had been imposed on the applicant. 

120.   Independent country information, discussed with the applicant, by the delegate and the Tribunal indicates that it would be extremely difficult for someone who was wanted by the authorities, on bail and charged with a serious anti-government crime to exit China through an international airport on their own passport. When queried he would simply repeat that it was corruption.

121.   The Tribunal put to the applicant that he was granted a visa to visit Australia on 30 April 2014. He did not leave China until 30 May 2014 when it was put to him that someone in his perilous position would have been expected to move quickly, he simply responded that he needed to have things in place. When queried how he could secure a visa when it is a process that involves officials in China who would have been aware of any watch lists and persons of interest. He simply repeated the same response that he did not know, [Mr D] organised things and bribes were provided.

122.   The applicant arrived in Australia on [in] May 2014.  His tourist visa was to cease on 30 August 2014. He applied for a Protection visa on 26 August 2014.  Given the dangerous and frightening circumstances he claims he faced in China one would expect that he would have applied for a Protection visa as soon as possible.  In response he claims that he did not speak English and had to get advice. The Tribunal does not accept this as a persuasive or credible response as he has been able to secure work and his community is aware of Protection visas and the safety they offer in Australia.  The Tribunal accepts it is only three months but given the claimed circumstances the applicant asserts he is facing one would imagine he would have moved immediately to secure his safety. 

123.   The Chinese authorities have issued the applicant with a new passport. The applicant provided a copy of the new passport to the Tribunal.  He claims that since his appearance before the differently constituted tribunal his mother has been harassed in China. He claims that the authorities are aware that he has claimed protection in Australia and see him as spreading rumours about China.

124.   The Tribunal put to the applicant that the Tribunal has processes to keep the identity of anyone claiming protection confidential. Names are never published, and the public is unable to attend hearings. The Tribunal asked the applicant how he thought the authorities had become aware of his proceedings before the Tribunal.

125.   He responded that they were suspicious due to his being in Australia for such a long time, no further explanation was provided.

126.   The Tribunal does not accept this as many people spend a long time in Australia for different reasons either visiting family or working. The Tribunal does not accept that this alone would make the authorities suspicious of him or put him or his family at risk of harm

127.   The Chinese authorities in Australia have issued the applicant with a new passport.  This would indicate that they had no concerns, and he was not of interest to them.

128.   The Tribunal has considered all the evidence before it and finds that the applicant’s claim lacks credibility. Due to the concerns set out above, the applicant’s general lack of credibility apparent from the applicant’s lack of detail, inconsistency and ineffective response to Tribunal’s concerns and questions, the Tribunal finds that the applicant has been untruthful in his claims to the Tribunal. The Tribunal rejects that the applicant had been involved in the reporting of corruption involving the police or local government authorities.  The Tribunal rejects the claim that the applicant attempted to refer the matter to the higher authorities. The Tribunal rejects the applicant’s claim that he spoke to the media or others about the corruption and the injustices. The Tribunal rejects the applicant’s claim that he was detained, harassed, tortured and injured. The Tribunal does not accept that the applicant was charged with a serious crime of being anti-communist or disturbing the public order.  The Tribunal does not accept that the applicant was put on bail and was able to leave China through an international airport on his own passport. The Tribunal prefers the independent country informational which states it would be almost impossible to exit China if he was charged with any crime which was seen as anti-government.

129.   The Tribunal does not accept that the applicant or his family will be targeted by gangsters or their associates if he returns to China.

130.   The Tribunal does not accept that his mother or family have been harassed or threatened due to the applicant’s behaviour.  

131.   The Tribunal rejects the applicant’s claim that the local and town government through corrupt police intended to harass, kill, or detain the applicant. The Tribunal rejects the applicant’s claim that the applicant was of any interest to the authorities, the police or criminal elements influenced by the local government which was ultimately controlled by the Chinese government. 

132.   After considering the applicant's claims individually and on a cumulative basis, the Tribunal finds that if the applicant returns to China now or in the reasonably foreseeable future, there is no real chance that he will be persecuted for the reason of his political opinion, membership of a particular social group or for any other Convention reason.

Does the applicant meet the complementary protection criteria?

133.   The Tribunal must also consider whether the applicant meets the criteria for complementary protection.

134.   A person meets the complementary protection criteria 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.

135.   ‘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.

136.   Section 36(2)(aa) of the Act 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.

137.   For reasons given above in relation to ‘real chance’, the Tribunal is not satisfied there is a real risk of any of the kinds of significant harm set out in s 5(1).  The Tribunal is not satisfied 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 he will suffer significant harm.  He therefore does not satisfy s 36(2)(aa).

Conclusion

138.   For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).  Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

139.   There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a Protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

DECISION

140.   The Tribunal affirms the decision not to grant the applicant a Protection visa.

Catherine Carney-Orsborn
Member