2214595 (Refugee)
[2023] AATA 4646
•29 November 2023
2214595 (Refugee) [2023] AATA 4646 (29 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Harry Huang (MARN 9579277)
CASE NUMBER: 2214595
COUNTRY OF REFERENCE: China
MEMBER:Peter Papadopoulos
DATE:29 November 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 29 November 2023 at 10:07am
CATCHWORDS
REFUGEE – protection visa – China – imputed political opinion – reporting police corruption – religion – Catholic – detention – torture by police – exit procedures – mental health issues – delay in seeking protection – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 56, 65, 424AA, 499
Migration Regulations 1994, Schedule 2CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Fox v Percy (2003) 214 CLR 118
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 91
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sun v MIBP [2016] FCAFC 52
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
SZLVZ v MIAC [2008] FCA 1816Any 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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
The applicant, [named], is [an age]-year-old male who claims to be a national of China.
[The applicant] applied for a Subclass 573 Higher Education Sector (Class TU) visa (Subclass 573 visa) on 17 May 2013. That student visa was granted on 11 September 2013 and was set to cease on 21 September 2017. [In] September 2013, he arrived in Australia as the holder of that Subclass 573 visa and has remained since.
On 7 August 2017, [the applicant] applied for a Subclass 500 Student visa (Subclass 500 visa). He was granted a Subclass 010 Bridging A (Class WA) visa (Subclass 010 visa) on 8 August 2017. His Subclass 500 visa application was refused on 18 October 2017 and he did not seek review of that decision. His Subclass 010 visa then ceased on 22 November 2017.
On 4 July 2018, [the applicant] applied for a Subclass 866 Protection (Class XA) visa (protection visa). On 26 July 2018, [the applicant] was granted a Subclass 030 Bridging C (Class WC) visa. Notably, he was an unlawful non-citizen who remained in the Australian community without a visa for a period of some eight months between 23 November 2017 (the day after his Subclass 010 visa ceased) and 26 July 2018 (the date his Subclass 030 visa was granted).
On 16 September 2022, a delegate of the Minister for Home Affairs made a decision to refuse to grant [the applicant] a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The delegate refused to grant the visa on the basis that [the applicant] was not a person to whom Australia owes protection obligations.
[The applicant] appeared before the Tribunal on 30 August 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by a registered migration agent, Mr Harry Huang (MARN 9579277).
The issue in this case is whether the applicant is either a refugee or a person who meets the criterion for complementary protection. The Tribunal also needs to consider whether the applicant is a member of the same family unit as a person who is a refugee or meets the criterion for complementary protection. A summary of the relevant law and mandatory considerations is set out in the Attachment.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CLAIMS AND EVIDENCE
Claims and evidence provided to the Department
Protection visa application
According to information contained in his protection visa application, the applicant:
· is a Chinese national who was born in Fujian Province in China;
· is ethnically Han;
· is an atheist;
o [a location in] [Village 1], [Town 1 in] Fuqing City, Fujian Province, China from birth until [April] 2011
o [Country 1] between [April] 2011 and [May] 2013
o [the same location in] [Village 1], [Town 1] Fuqing City, Fujian Province, China between [May] 2013 and [June] 2013
o [Country 1] between [June] 2013 and [September] 2013;
· completed primary, middle and vocational school in Fuqing City, Fujian Province, China;
· studied at [College 1] in [Country 1];
· has the following family members in China:
o his father, [named], born [date]
o his mother, [named], born [date];
· has the following family members in Australia:
o his sister, [Sister A], born [DOB 1].
By way of a statutory declaration made on 4 July 2018 (the July 2018 statutory declaration), [the applicant] presented the following claims for protection:
· He met [Ms A] while they were both students at [a named] School. They both went to study [at] [College 1] in [Country 1]. In 2011, whilst studying in [Country 1], he entered into a relationship with [Ms A]. The relationship with [Ms A] broke down during their second year of studies. She became interested in another Chinese student at the school, namely [Mr B]. [Mr B] would ‘conjure’ during weekend performances on campus and would invite [Ms A] to be his assistant during such performances. In December 2012, [Ms A] followed [Mr B] back to [City 1], another city in the Fujian Province of China.
· [Ms A] sometimes contacted him in [Country 1] after her return to China in December 2012. She did this by telephone and the [named] messaging service. She told him that she was living with [Mr B] and ‘had a really happy life because [Mr B]…was from a rich family with a powerful background’.
· He mourned the loss of the relationship with [Ms A] and decided in January 2013 to pursue further studies in Australia.
· [In May] 2013, he returned to China for one month’s holiday. He contacted [Ms A] so that they could meet. They met in [City 1] where she ‘looked drawn and tired’. She told him that [Mr B’s] [Relative A] had been appointed as [Official A] and that this had enabled [Mr B] to get a job as a police officer at the [City 1] Public Security Bureau (PSB). She also told him that she was a victim of domestic violence at the hands of [Mr B] and that [Mr B] had also abused his position by torturing ‘female persons’ being investigated or detained by the PSB.
· Motivated by indignation and his knowledge that ‘the anti-corruption movement had spread all over [China] since Jinping Xi became the top leader of the Chinese government in 2012’, he then persuaded [Ms A] to move out of [Mr B’s] home ‘and report everything to the anti-corruption bureau’.
· On or about [a day in] June 2013, he took [Ms A] to the anti-corruption bureau at [City 1] People’s Procuratorate where they were interviewed by two officials from the anti-corruption bureau. He then arranged for [Ms A] to stay with him in a small hostel in [a street] near the Procuratorate. They stayed at the hostel together for about two weeks. During the first week they contacted the anti-corruption bureau officials on a daily basis and were told to be patient. About another week passed and then he and [Ms A] were ‘suddenly arrested by the police and taken to the PSB’ where they were separated. He has not seen [Ms A] since.
· He was detained for [number] days ‘at the detention centre’ where [Mr B] interrogated him, mistreated him ‘cruelly and brutally’ and ‘almost tortured [him] to death’.
· Fortunately, he had a cousin named [Cousin B] who had a girlfriend named [Girlfriend A]. [Girlfriend A] knew a police officer at the [City 1] Public Security Bureau and with her assistance he was ‘temporarily released on bail’. He fled and went into hiding and [Girlfriend A] further assisted him so that he could leave China from [Airport 1].
· [In late] June 2013, he arrived in [Country 1] and continued his studies at the [College 1] in [Country 1]. He was ‘threatened by strangers who were obviously from Fujian in China’ who said that he would not be ‘let off’ and would ‘be killed sooner or later’ as he ‘had offended somebody very high up in China’. He ‘had to go here and there’ and could not continue his study.
· Fortunately, his Subclass 573 visa was granted on 11 September 2013. He departed [Country 1] [in] September 2013, arriving in Australia [later in] September 2013.
· He learnt from [Girlfriend A] that [Ms A] had been sent to a mental hospital. He also learnt that [Relative A] was ‘appointed as [Official B] in January 2018’ and that [Mr B] became ‘a senior police officer in the Fujian provincial public security ministry’ shortly thereafter.
· He was unable to concentrate on his studies in Australia because he feared that one day he will be killed as a result of having offended corrupt Chinese officials.
· His parents in China have been implicated in his case and have been ‘threatened and harassed from time to time in China’.
On 14 June 2022, a delegate of the Minister wrote to the applicant pursuant to s 56 of the Act and requested further information in the following terms:
In your application, you claimed that you reported an employee of the [City 1] Public
Security Bureau to the anti-corruption bureau. You claim that as a result of these actions you
were arrested and detained.These claims lack substantiating details such as dates and locations and you also did not
provide any documentary evidence to support these claims. I am inviting you to provide
further information about these matters, particularly the following:·copies of any letters or petitions you sent to government officials about this matter, and
·if you have been arrested or have faced arrest over this matter, copies of any arrest
warrants or charge sheets issued to you over this matter.
Country information also indicates that there are strict entry / exit procedures at the airport
when persons are departing China and that it is difficult for them to pass through these
border control checkpoints if they are of interest to the authorities. Therefore, your ability to
obtain a passport and leave China indicates that you were of no interest to the authorities
when you departed. I am inviting you to comment or provide further information about your
ability to obtain a passport and to depart China.If you are unable to provide more information about your claims or copies of documents,
please provide a detailed explanation of why you cannot provide them. If you are unable to provide documents, please also provide details of the efforts you made to obtain them.By way of response to the s 56 request letter, on 11 July 2022 [the applicant] provided the following documents to the Department:
· Original and certified translation of ‘Notification on Detention’ document (in pdf format) issued by the [City 1] Municipality Detention House, [City 1] Municipality Public Security Bureau dated [in] June 2013 stating that [the applicant] had been arrested at 9pm on [that day in] June 2013 and was in detention at the detention house as at [that day] (‘Notification on Detention’ document dated [in] June 2013);
· Original and certified translation of ‘Decision on Bail Pending Investigation / Trial’ document (in pdf format) issued by the [City 1] Municipality Public Security Bureau dated [later in] June 2013 stating that [the applicant] was permitted to be released on bail pending investigation/trial from [later in] June 2013 with a security bond of 5,000 yuan RMB payable (‘Decision on Bail Pending Investigation / Trial’ document dated [later in] June 2013);
· A declaration entitled ‘Statement’ signed by [the applicant] on 11 July 2022 (the July 2022 statement), in which he maintained that he escaped China through the [named airport] because [Girlfriend A] had facilitated this through her police contacts at the [City 1] PSB. He explained that he was unable to provide documentary evidence in support of his claims ‘such as copies of any letters or petitions I sent to government officials about this matter, because all relevant documents or materials in relation to my petition were confiscated by the authorities when [Ms A] and I were arrested by the police [in] June 2013’. He also essentially repeated the majority of the claims he presented in the July 2018 declaration but made a number of significant additions and qualifications to those claims:
o [Ms A] could not get any help as a victim of domestic violence because of [Mr B’s] ‘special position’ and ‘special family background’. [Mr B] also threatened to harm [Ms A’s] family if she ‘dared expose anything to the outside’.
o He took [Ms A] to the anti-corruption bureau in June 2013, and his previous claim that he did this on or about [a day in] June 2013 might not be accurate. [Ms A] then moved into the hostel with him and they stayed there together for about two weeks until they were both arrested [later in] June 2013.
o He was temporarily released on bail on [a later day in] June 2013 and then left China [later in] June 2013.
Supporting documents
By way of summary, the following documents were lodged with the Department in support of the protection visa application:
· Department Online Application Form: Application for a Protection Visa, lodged with the Department on 4 July 2018;
· Department Form 956 - Advice by a migration agent/exempt person or providing immigration assistance indicating that the applicant was assisted by the representative, Mr Harry Huang (MARN 9579277) in relation to his protection visa application;
· the applicant’s Chinese passport (issued [in] 2010, expiry [in] 2020);
· the July 2018 statutory declaration;
· original and certified translation of ‘Notification on Detention’ document dated [in] June 2013;
· original and certified translation of ‘Decision on Bail Pending Investigation / Trial’ document dated [later in] June 2013; and
· the July 2022 statement.
Summary of the delegate’s decision
On 16 September 2022, the delegate made a decision not to grant the applicant a protection visa. The delegate’s reasoning in support of their decision to refuse the application is summarised as follows:
· The delegate accepted the applicant’s identity as claimed and that China was the receiving country for the purposes of the protection visa assessment and that the applicant did not have a current right to enter or reside in a third country.
· Due to a lack of meaningful detail and/or documentary evidence about the confiscation of the applicant’s documents by the police, the delegate did not accept the applicant’s claim in relation to the police confiscating his documents (such as petitions).
· The delegate found there was insufficient detail about the relationship between the applicant and [Ms A], as well as the relationship between [Ms A] and [Mr B]. The delegate noted that there was no evidence that [Ms A] was a victim of domestic violence at the hands of [Mr B], that [Mr B] was a police officer and also found it implausible that [Ms A] would confide in the applicant as opposed to her family and friends.
· The delegate noted that the supporting documents were ‘recently issued’ and was unconvinced as to the genuineness of these documents. Noting the implausibility of the events that gave rise to the applicant’s claimed detention and bail, the delegate gave no weight to these documents. In reaching this finding, the delegate relied upon the Department of Foreign Affairs and Trade (DFAT) Country Information Report on China, published 21 December 2021, which indicated that fraudulent documents in China are very common, and are commonly provided to asylum applicants. Accordingly, the delegate was not satisfied that the applicant was detained in 2013, nor that he suffered inhumane treatment in detention.
· The delegate also found that as the applicant was not stopped from boarding a plane and departing China while holding his own passport, he was likely not of adverse interest to authorities at the time he departed the country. Given the lack of information relating to the identity and ranking of the police officer who assisted the applicant’s departure from China, the delegate was unable to be satisfied that a police officer would take such a risk.
· Given the above findings, the delegate decided that Australia did not owe the applicant protection obligations.
Claims and evidence provided to the Tribunal
The review application
On 4 October 2022, the applicant lodged an application for review of the delegate’s decision with the Tribunal. The applicant was represented by Mr Harry Huang (MARN 9579277) in connection with his review application.
Pre-hearing submissions and evidence
On 23 August 2023, the Tribunal received a declaration entitled ‘Submissions’ that was signed by the applicant on 23 August 2023 (the August 2023 declaration) in which the applicant raised new claims that he was a Catholic who now feared persecution in China based upon his religion. He claimed that he was introduced to the Catholic faith by his sister, [Sister A], after arriving in Australia and started attending [Church 1] in [Sydney]. He claimed to have been attending the service regularly since November 2022, that he now firmly believes in God, and started attending Catechism classes in May 2023 with the intention to be baptised on [a day] in 2024. References were made to a range of country information sources in support of the claims of religious persecution. The Tribunal was also provided with the following evidence in support of the applicant’s claims relating to the nature of his participation in religious activities in Australia:
· Letter of support from [Father A], [Church 1], dated 17 August 2023;
· Letter of support from [Person A], dated 13 August 2023;
· Letter of support from [Person B], dated 16 August 2023; and
· Letter of support from [Person C], dated 16 August 2023.
In the August 2023 declaration, the applicant stated his fear that if he returned to China he would be arrested, imprisoned or put into a mental hospital by the Chinese authorities just like [Ms A] had experienced. The applicant also repeated the majority of the claims detailed in the July 2018 statutory declaration and the July 2022 statement which were provided to the Department but stated that he made ‘several mistakes’ in those documents and now amended his claims in the following terms:
· [Earlier in] June 2013, he took [Ms A] to the anti-corruption bureau (not on [the day in] June 2013 as previously declared). She moved in with him at the hostel in [City 1] during the evening of [this earlier day in] June 2013.
· [The next day], after contacting anti-corruption bureau officials, he and [Ms A] were arrested by the police. The police did not give him any official documents when they were arrested. They were taken to the PSB that afternoon (not [later in] June 2018 or other dates as previously declared).
· [Days later], he was released on bail. He was not given any documents when released on bail.
· On [the next day], he left China and arrived in [Country 1] (not [in late] June 2013 as previously claimed).
Notably, in paragraph 4 of the August 2023 declaration, the applicant gave the following explanation for the delay in lodging his protection visa application and the errors he made when presenting his claims to the Department as specified in the July 2018 statutory declaration and the July 2022 statement:
When I prepared application for a protection visa (‘protection application’) in July 2018 as well as my further statement in July 2022, the main events had happened for, respectively, over 5 years or over 9 years. During such a long period, I am, in fact, always troubled by one nightmare after another owing to my miserable experience in the past. Although I am currently in Australia, I am always in fears, and I am always afraid that I will be killed one day unclearly, because I have found that those corrupt Chinese officials can turn their hand to anything. It was also the main reason why the lodgement of my protection application was delayed for nearly 5 years after I arrived in Australia. As it has been too long to remember every detail clearly, plus be in a particularly confused, distress, and vulnerable situation, I made several mistakes in my statutory declaration dated 4 July 2018 and my statement dated 11 July 2022.
Of further note, the applicant explained in paragraphs 20 and 21 of the August 2023 declaration that he ‘finally found’ that the dates on the ‘Notification on Detention’ document dated [in] June 2013 and the ‘Decision on Bail Pending Investigation / Trial’ document dated [later in] June 2013 were incorrect. He stated that his father had obtained these documents from [Girlfriend A] before they were lodged with the Department. He also stated that his father had tried to contact [Girlfriend A] about the documents but was unsuccessful because she had separated from his [Cousin B] in November 2022.
The hearing: oral evidence and supporting documents
The applicant appeared before the Tribunal on 30 August 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
At the outset of the hearing, a Tribunal officer was given, and made a photocopy of, the applicant’s Chinese passport (issued [in] 2010; expiry [in] 2020). The Tribunal returned the passport to the applicant at the end of the hearing.
Where relevant, the applicant’s oral evidence is discussed in the Tribunal’s findings and reasons below.
Post-hearing submissions and evidence
The Tribunal did not receive any post-hearing submissions or evidence.
CONSIDERATION OF CLAIMS AND EVIDENCE
Nationality: Country of reference/receiving country
[The applicant] claims to be a citizen of China and has provided to the Department a copy of his Chinese passport issued [in] 2010. The delegate was satisfied that the applicant was using his own identity and documents. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of China. The Tribunal accepts that China is his receiving country for the purpose of assessing his claims for protection.
Credibility
Assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[1] There are special considerations in relation to asylum seekers. The Full Federal Court noted in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:
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.
[1] Fox v Percy (2003) 214 CLR 118
As credibility assessment is not an exact science, great care must be taken to ensure that the approach taken is reasonable, reflective and fair. The Tribunal is assisted by the comments of both the High Court and Federal Court of Australia.[2] As a threshold principle, in the Full Federal Court case of AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably.
[2] For example, Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
The objective of taking a ‘reasonable approach’ to fact-finding is supported in numerous judgments and commentaries. As 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.
The courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[3] A similar approach is taken in the Department’s Refugee Law Guidelines[4] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[5] which provides useful guidance for this Tribunal.
[3] SZLVZ v MIAC [2008] FCA 1816 at [25]
[4] Department of Home Affairs, ‘Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines’, section 15.6, as re-issued 1 January 2023 (Protection Visa Processing Guidelines)
[5] UNHCR Handbook, re-issued February 2019 at [203]–[204]
In regard to decision-making generally, researchers have provided useful insight into subconscious influences on credibility findings. Research in Canada 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’.[6] The Tribunal is conscious that there may be factors that consciously or otherwise influence decisions[7] and that one study found that tribunal members may rely on assumptions which can be inconsistent with psychological literature.[8]
[6] Hilary Evans Cameron, ‘Refugee Status Determinations and the Limits of Memory’ (2010) International Journal of Refugee Law, Volume 22, Issue 4, 469–511, H Bennett and G Broe, ‘The neurobiology of achieving a comfortable satisfaction’ (2014) 26 Judicial Officer, Bulletin 8, 65–9
[8] Dowd, Hunter, 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.’
The Tribunal is guided by these decisions, research and commentaries, and is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, trauma and/or cultural issues. A person may forget dates, locations, distances, events and personal experiences due to the lapse of time or other reasons.[9] As suggested by the Tribunal’s Guidelines on the Assessment of Credibility,[10] such factors are taken into consideration both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.
[9] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility (July 2015)
[10] Ibid
In determining whether an applicant is entitled to protection in Australia, it remains necessary to make findings of fact on relevant matters. In assessing the credibility of an applicant’s claims, the Tribunal accepts that the benefit of the doubt be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal is also mindful that if it makes an adverse finding in relation to a material claim made by an 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.[11] 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.[12]
[11] MIMA v Rajalingam (1999) 93 FCR 220
[12] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547
The mere fact that a person claims fear from harm for a particular reason does not establish the genuineness of the fear or that it is ‘well-founded’ or felt for the reason claimed. Likewise, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or that it amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[13] As the Tribunal explained to [the applicant] at the outset of the hearing, s 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does it have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for the applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to adequately advance.[14]
[13] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 91, Prasad v MIEA (1985) 6 FCR 155 at 169-170
[14] Sun v MIBP [2016] FCAFC 52 at [69]
In the present case, the Tribunal takes into account [the applicant’s] lack of familiarity with the Tribunal setting and his limited English language proficiency. The Tribunal has also had regard to the AAT Migration and Refugee Division ‘Guidelines on Vulnerable Persons’.[15] With this in mind, the Tribunal asked straightforward questions during the hearing, and paraphrased and checked [the applicant’s] responses where necessary.
[15] Administrative Appeals Tribunal, Migration and Refugee Division Guidelines on Vulnerable Persons (November 2018)
The Tribunal has also taken into account the AAT’s Migration and Refugee Division ‘Guidelines on the Assessment of Credibility’ both in the conduct of the hearing and evaluating the applicant’s evidence. The Tribunal does not consider things like minor changes in dates, minor details omitted from claims in the written application, or minor mistakes and omissions from an applicant’s personal history would, on their own, undermine an applicant’s credibility. However, when the evidence set out here, some of it on critical matters, is considered cumulatively the Tribunal finds that these minor errors, inconsistencies and omissions together take on more significance and so have been given weight.
Analysis, reasons and findings
During the hearing, the Tribunal discussed with the applicant his family composition, educational history, travel history, employment history, places of residence in China, knowledge of the anti-corruption movement in China that he acquired while living in [Country 1] before returning to China [in May] 2013, claimed adverse experiences in China, claimed threats and harassment experienced by him and his family members following his departure from China in June 2013, the evolution of his acceptance and practice of Catholicism in Australia and why he fears returning to China.
In relation to his fear of returning to China, the applicant told the Tribunal that he did not want to return because:
· he thought he would probably be killed or confined in an institution for mentally ill persons because he and [Ms A] had reported instances of domestic violence perpetrated upon her by her husband, a police officer named [Mr B], who is the nephew of the [Official A], namely [Relative A].
· he had recently become a Catholic and his sister [Sister A] was a Catholic also seeking protection in Australia. He stated that their religious belief was not allowed in China. He felt that if they returned to China, her life would be in danger and he would therefore face danger because he was her brother.
The Tribunal has formed the impression that the applicant has fabricated and exaggerated his various claims for protection. Furthermore, the applicant has not provided any persuasive corroborative evidence in support of his claims which, in the particular circumstances of his case, concerns the Tribunal. Overall, the Tribunal did not find the applicant to be a credible witness. In reaching this view, the Tribunal has also had regard to a range of concerns in relation to key aspects of the evidence before the Tribunal.
The applicant’s claims in relation to his profile as an anti-corruption activist and his activities in China during June 2013
The Tribunal has numerous, including significant, credibility concerns with the applicant’s claims in relation to his fear of persecution for reason of his activities in China in June 2013 which could, at their highest, be characterised as him belonging to a particular social group of persons filing reports in China against corrupt officials or for having an imputed political opinion as an anti-corruption campaigner or being a member of the anti-corruption movement in China. These concerns are set out below.
Firstly, the applicant has provided inconsistent accounts in relation to the amount of time he spent in China during 2013.
In both the July 2018 statutory declaration and the July 2022 statement, the applicant claimed that he arrived in China [in May] 2013 and departed China on [late] June 2013.
However, according to the entry and exit stamps in the applicant’s passport, he departed [Country 1] and arrived in China on [that day in May] 2013. He then departed China and arrived in [Country 1] [earlier in June] 2013. He therefore only spent two weeks in China during 2013.
Furthermore, in the August 2023 declaration, the applicant stated that he departed China [earlier in June] 2013 but gave no explanation as to why on two previous occasions he had overstated the duration of his two week stay in China in 2013 by 18 days.
Asked at hearing to explain the significant discrepancy in relation to the duration of his stay in China during 2013, the applicant told the Tribunal that he ‘remembered the dates wrong’ when he prepared the July 2018 statutory declaration and the July 2022 statement.
The Tribunal has difficulty accepting, including in the context of all of the credibility issues considered cumulatively, that misremembering these dates is the cause of not providing this information correctly on two previous occasions in 2018 and 2022. The Tribunal notes that the applicant had the benefit of the representative’s assistance in preparing these documents in 2018 and 2022. Furthermore, taking into account the events that transpired as claimed in June 2013 in China it is difficult to accept the applicant’s contention that a lapse in memory on two separate occasions can account for this significant discrepancy in relation to the duration of the applicant’s stay in China at that time. At hearing, the applicant explained that these events included travelling a distance of almost 150 kilometres from his family home in Fuqing to [City 1], meeting [Ms A] in [City 1] and then residing with her at a hostel in that city, making a complaint to the anti-corruption bureau in [City 1], being arrested by police and then detained at a [City 1] PSB building for [number] days, being released from detention after having been bailed, travelling from [City 1] to [a named airport] some [distance] away and then departing China for [Country 1]. The Tribunal finds it difficult to accept that the applicant could generally recall this detailed sequence of events on two occasions in July 2018 and July 2022 but failed to recall on both occasions that these events transpired over a period of two weeks rather than a month. The Tribunal considers that the inconsistency undermines the credibility of the applicant.
Secondly, the applicant provided inconsistent accounts in relation to the timeline and circumstances surrounding key events during June 2013 which culminated in the persecution he claims to have suffered in China.
In the July 2018 statutory declaration, the applicant claimed that:
· he returned to China from [Country 1] [in May] 2013;
· he and [Ms A] lodged a complaint with the anti-corruption bureau in [City 1] on or about [a specified day in] June 2013;
· after lodging this complaint, he and [Ms A] lived together at a hostel in [City 1] for two weeks and followed up with anti-corruption bureau officials on a daily basis during the first week of lodging the complaint;
· he and [Ms A] were arrested by the police on or around [a later day in] June 2013;
· he was detained by the police for a period of [number] days after which he was bailed then went into hiding before escaping China by travelling to [Country 1] from [Airport 1 in late] June 2013.
Thereafter, in the July 2022 statement, the applicant slightly varied this timeline surrounding these claims by stating that:
· he returned to China from [Country 1] at the end of May 2013;
· he and [Ms A] lodged a complaint with the anti-corruption bureau in [City 1] at some point in June 2013;
· after lodging this complaint, he and [Ms A] lived together at a hostel in [City 1] for about two weeks and followed up with anti-corruption bureau officials on a daily basis during the first week of lodging the complaint;
· about two weeks after lodging the complaint, he and [Ms A] were arrested by the police on [a day in] June 2013, as evidenced by the ‘Notification on Detention’ document dated [that day];
· he was detained for [number] days and then temporarily released on bail [later in] June 2013, as evidenced by the ‘Decision on Bail Pending Investigation / Trial’ document dated [that later day in] June 2013;
· upon release from detention he went into hiding before escaping China by travelling to [Country 1] from [Airport 1 in late] June 2013.
However, in the August 2023 declaration, the applicant further and more significantly varied the timeline surrounding these claims by stating that:
· he returned to China from [Country 1] [in May] 2013;
· he met [Ms A] in [City 1] during the morning of [the earlier day in] June 2013, and later that day he and [Ms A] lodged a complaint with the anti-corruption bureau in [City 1]. He and [Ms A] spent one night together at a hostel in [City 1] on [that day in] June 2013;
· [the next day], he and [Ms A] followed up with anti-corruption bureau officials but were arrested by the police that afternoon;
· he was detained for [number] days and then temporarily released on bail [days later];
· he escaped China by travelling to [Country 1] from [Airport 1] [in June] 2013.
In paragraph 4 of the August 2023 declaration, the applicant explained the errors in the July 2018 statutory declaration and the July 2022 statement on account of ‘being in a particularly confused, distress, and vulnerable situation’ since the events in 2013 had occurred and that ‘it had been too long to remember every detail clearly’ when he prepared these documents in July 2018 and July 2022.
Asked at hearing to explain the evolving nature of the timeline of the events that transpired in China during June 2013, the applicant indicated that he did not remember the relevant dates when he prepared the July 2018 statutory declaration and the July 2022 statement.
The Tribunal has considered the applicant’s response, along with the explanation set out in paragraph 4 of the August 2023 statutory declaration, and again has difficulty accepting, including in the context of all of the credibility issues considered cumulatively, that the applicant’s memory had failed him. While the Tribunal appreciates that asylum seekers may struggle recalling dates for a variety of reasons, including for reasons of ‘confusion, distress and vulnerability’ in 2018 and 2022 as has been argued in this case, there is no explanation before the Tribunal indicating how the applicant unilaterally recalled the correct timeline of events in August 2023, some ten years after the events occurred in June 2013. The Tribunal was not provided with any persuasive evidence, detail or explanation in relation to what prompted the applicant to overcome his confusion, distress and lapses in memory between July 2022 and August 2023 in order to find himself in a position where he could more accurately recall the timeline and nature of events that transpired in China in June 2013. Again, the Tribunal notes that the applicant had the benefit of the representative’s assistance in preparing the claims that were presented in 2018, 2022 and 2023 and there is no evidence before the Tribunal, such as medical or other expert evidence,[16] to indicate that the applicant’s capacity to provide consistent evidence or otherwise participate in the review process would be, or has been, affected by any of the factors expressed in paragraph 7 of the ‘Guidelines on Vulnerable Persons’ or in any other way.
[16] Administrative Appeals Tribunal, Migration and Refugee Division Guidelines on Vulnerable Persons (November 2018), para. 34
Furthermore, taking into account the claimed events that transpired in China in June 2013, it is difficult to accept the applicant’s contention that a lapse in memory on two separate occasions in July 2018 and July 2022 can account for significant discrepancies in relation to matters which the Tribunal would reasonably expect the applicant to have recalled correctly at first instance. For example, noting that the applicant claimed to have had an intimate relationship with [Ms A] prior to June 2013 and still had strong feelings towards her, it is difficult to accept that he would be unable to recall with more accuracy at first instance the duration of time he spent residing with [Ms A] at the hostel in [City 1] was only one night rather than two weeks. Had this cohabitation occurred, the Tribunal expects the applicant would more easily recall its duration, noting that he was sharing a hostel room with, and offering protection to, his ex-partner who was a married woman fleeing domestic violence from her husband. By way of further example, the applicant claimed to have been closely following the anti-corruption movement in China since 2012. If that were to be accepted, the Tribunal has some difficulty accepting the applicant’s inability to accurately recall at first instance the number of occasions and frequency of his follow-up with anti-corruption bureau officials in [City 1] after having lodged a complaint. In the Tribunal’s view, it would be reasonable to expect the applicant to readily recall that he only followed up once with anti-corruption bureau officials before being arrested the day after lodging the complaint rather than stating that he followed up on a daily basis for a week with anti-corruption bureau officials before being arrested about two weeks after lodging the complaint. On this basis, the Tribunal finds that the applicant’s explanation does not overcome its concern in relation to the applicant’s evolving evidence in relation to the timeline of key events that occurred in June 2013 and the inconsistences therein. The Tribunal finds his evidence in relation to the events that occurred in June 2013 to be unreliable.
Thirdly, the applicant has provided the Department with two inauthentic documents – the ‘Notification on Detention’ document dated [in] June 2013 and the ‘Decision on Bail Pending Investigation / Trial’ document dated [later in] June 2013 – which indicates a preparedness to provide fabricated evidence in order to embellish or falsify his claims for protection.
The applicant explained the provenance of these documents in paragraphs 19 – 21 of the August 2023 declaration:
19. As a matter of fact, the police did not give me any official document when I was arrested together with [Ms A] on [a day in] June 2013. I also did not obtain any documents when I was temporarily released on bail under the help of [Girlfriend A] through her connections (a.k.a. guan-xi) with the PSP [sic] [days later]
20. When I was requested to provide reverent [sic] evidence, such as copies of any arrest warrants or charges sheets issued to me, by the Department in June 2022, I had to contact my father stop my father then contact my cousin, asked him whether his girlfriend [Girlfriend A] could obtain relevant documents through her friend, the police officer at the PSB. Eventually, [Girlfriend A] emailed these two documents to my father. She told my father that she obtained these two documents from her friend at the PSB. My father then sent to me by email. However, I have never ever received original copy of these documents.
21. I have finally found that the dates on these two documents are incorrect. My father tried to contact [Girlfriend A], but it was unsuccessful, because she was separated from my cousin at the end of 2022.
At hearing, the Tribunal drew to the applicant’s attention that the content of each of these documents was not true as he was in [Country 1] on and from [a specified day in June] 2013, thereby making it impossible for him to have been arrested and detained in China on [a later day in] June 2013 and thereafter released from detention [later in] June 2013. After drawing the applicant’s attention to country information indicating that fraudulent documents are very common in China and the scale of fraud is unmatched anywhere in the world,[17] the Tribunal raised a concern with the applicant that the provision of inauthentic documents in support of his application seriously undermined his credibility. By way of response, the applicant told the Tribunal that he regretted submitting those documents to the Department and would not have done so had he known they contained incorrect information. He explained that [Girlfriend A] had procured the documents and provided them to his father who then emailed them to the applicant in Australia. The applicant told the Tribunal that it was his ‘fault that he did not check the dates more carefully’ but explained that he did not do so because he was in a hurry to submit them.
[17] DFAT, Country Information Report – China, December 2021, para 5.45
The Tribunal has considered this response and the explanation in paragraphs 19 – 21 of the August 2023 declaration, and finds that they do not, in the context of the other credibility findings, overcome the Tribunal’s concern. The applicant accepted at hearing that he lodged inauthentic documents in support of his protection claims as they relate to his arrest and detention in China in June 2013. This must be understood in the context of the broader reality that the only documentary evidence that has been provided in support of the case are these two inauthentic documents, which were provided at the Department’s request and not of the applicant’s own volition. While the Tribunal appreciates the applicant’s regret in not checking these documents, it remains that these documents support a claimed timeline of events that the applicant himself had proffered in July 2018 and July 2022 which the Tribunal rejects for the reasons outlined above. The Tribunal appreciates that the applicant has sought to disavow himself from any fraudulent conduct in the procurement of these documents. However, the Tribunal finds it difficult to accept that the applicant had no knowledge of the provenance of these documents given the country information about the commonplace nature of fraudulent documentation in China. This finding is supported by the applicant’s own evidence at hearing where he told the Tribunal that he was fully aware of the fact that, at least 10 years ago when he was in China, money could buy anything including the bribing of officials to alter records to facilitate his escape from China at that time.
Furthermore, the Tribunal does not accept that the applicant did not carefully check these inauthentic documents as he was in a hurry given that they were each only a page in length. Moreover, the Tribunal does not find the applicant to have otherwise been careless when presenting his claims given the degree of detail specified in each of the July 2018 statutory declaration, the July 2022 statement and the August 2023 declaration. The provision of such detail does not accord with the explanation that he did not check the documents because he was acting in haste. Furthermore, the applicant’s explanation is difficult to accept as the making of the July 2022 statement would have required the applicant, along with his representative, to carefully focus upon the events that transpired in June 2013 in order to produce a declaration that ultimately contained false statements given its reliance upon incorrect dates specified in each of the inauthentic documents. This raises significant credibility concerns.
Fourthly, the applicant provided inconsistent evidence about the nature of his relationship with [Girlfriend A]. When asked at hearing to explain how he knew that [Ms A] had been confined in a mental institution by the Chinese authorities, the applicant gave the following response:
That’s what my cousin [Girlfriend A] told me.
The Tribunal then sought immediate clarification from the applicant, given that at all other times [Girlfriend A] had been consistently described as the girlfriend of the applicant’s [Cousin B]. The applicant then stated that [Girlfriend A] was his cousin’s girlfriend.
Asked to account for the significant discrepancy in his evidence, the applicant then insisted that [Girlfriend A] was his cousin’s girlfriend but gave no explanation as to why he may have misdescribed her as his cousin. The Tribunal has considered this response and finds that it does not overcome its concern about this significant discrepancy. The Tribunal has difficulty accepting the significant misdescription of the relationship between the applicant and [Girlfriend A] at hearing, especially given the extensive written evidence provided by the applicant about [Girlfriend A] to the Department and the Tribunal. This significant discrepancy raises doubts in relation to the reliability of the applicant’s claims, insofar as they involve [Girlfriend A], including claims pertaining to:
· the applicant’s release from detention in [City 1] in June 2013 that was partially facilitated by [Girlfriend A];
· the applicant’s subsequent escape from China via [a named airport] in June 2013 that was also partially facilitated by [Girlfriend A]; and
· the procurement of the two inauthentic documents lodged in support of the application which was facilitated by [Girlfriend A].
The Tribunal finds it difficult to accept the applicant’s evidence in relation to each of these three matters given the doubts in relation to the identity of [Girlfriend A]. The Tribunal’s doubts are underscored by the applicant’s inability to otherwise evidence the relationship between himself and [Girlfriend A], such as by way of witness statements or oral testimony from his [Cousin B] on account of the claim that [Cousin B]’s relationship with [Girlfriend A] ended in November 2022.
Fifthly, the absence of probative independent documentary or witness evidence to corroborate the applicant’s claims raises a concern for the Tribunal.
The applicant did not provide any documents to the Department in support of his protection visa application other than the two inauthentic documents addressed above. Despite having been represented by a registered migration agent, the applicant has not provided the Department or the Tribunal with any genuine and probative independent evidence to support his protection claims as they relate to the incidents that occurred in China in June 2013. Notably, in response to the Department’s request for documentary evidence to support his claims, the applicant gave the following explanation in paragraph 7 of the July 2022 statement:
I am unable to provide documentary evidence, requested by the Department’s letter, such as copies of any letters or petitions I sent to government officials about this matter, because all relevant documents or materials in relation to my petition were confiscated by the authorities when [Ms A] and I were arrested by the police on [the day in] June 2013.
In response to the Tribunal’s hearing invitation in which he was asked whether he intended to rely on any documents at the hearing, such as written witness statements, written submissions, country information or other evidence, the applicant indicated that he would provide such documents by 23 August 2023. Nevertheless, the Tribunal did not receive any documentary evidence to support his protection claims as they relate to the incidents that occurred in China in June 2013. That said, the applicant did foreshadow in paragraph 21 of the August 2023 declaration that his father had attempted to contact [Girlfriend A] but was unsuccessful as she had separated from [Cousin B] at the end of 2022.
At hearing, in response to specific concerns raised by the Tribunal about the distinct lack of evidence to corroborate the applicant’s claims in relation to:
· his relationship with [Ms A] - such as photographs, text messages, witness statements or oral testimony from witnesses such as fellow classmates in [Country 1] - the applicant stated that he did communicate with [Ms A] via the [messaging service] and that his entire chat history with her was now gone;
· the relationship between [Mr B] and his [Relative A] [Relative A], a widely known and influential Chinese politician, the applicant stated that he did not have any evidence in that regard;
· his residence at the hostel in [City 1] at some point in June 2013, such as a photograph of him or [Ms A] at the hostel, a receipt or some other record of any payment made to the hostel, the applicant stated that he did not have any evidence in that regard.
At the conclusion of the hearing, the Tribunal put its concern to the applicant about the distinct lack of persuasive evidence, particularly documentary evidence, such as witness statements, photographs, or other oral testimony, to support his claims in relation to:
· the existence of [Ms A], as well as the nature and history of his relationship with her;
· the existence of [Mr B], as well as [Mr B’s] familial relationship with [Relative A], a renowned political figure in China;
· his arrest and detention in [City 1] in June 2013;
· his relationship with his [Cousin B];
· his relationship with [Girlfriend A] and her separation from his [Cousin B] in November 2022.
The Tribunal indicated that this lack of evidence might make it difficult to accept claims made in connection with these matters.
By way of response, the applicant reiterated that [Girlfriend A] was his cousin’s girlfriend and that the two documents she obtained were ‘not fake’ but simply had incorrect dates specified in them.
The Tribunal has considered the applicant’s response and finds that it does not overcome or assuage its concern. Despite having been represented since the protection visa application was lodged on 4 July 2018, the applicant has only been able to provide inauthentic documents and a changing series of claims and assertions without any substantiation in support of his case. While the Tribunal is prepared to accept asylum seekers have difficulties providing evidence in support of their claims, the distinct lack of corroborative evidence in this case is startling taking into account the detailed nature of the claims presented, the wide array of persons involved in these claims and the preponderance of avenues open to the applicant to obtain such evidence in the circumstances of this case. It is difficult to accept the applicant was unable to provide any evidence, including oral testimony from witnesses outside China, attesting to the existence of the key protagonists in his narrative along with the nature of his relationship with these persons. While the Tribunal is prepared to accept that the applicant’s text message history with [Ms A] no longer exists, it remains that the applicant’s sister in Australia or fellow students in China were not called upon to corroborate the applicant’s claims regarding his relationship with [Ms A], his [Cousin B] or [Girlfriend A].
As at the date of the Tribunal’s decision, no probative evidence has been provided by the applicant to corroborate his claims. The lack of evidence raises a significant concern for the Tribunal, particularly in light of the detailed oral evidence provided by the applicant at hearing about some of his claims. For example, the Tribunal considers that if the applicant had an intimate relationship with [Ms A] for the period claimed there would be some documentary evidence or oral evidence from a person other than the applicant attesting to this. For example, the Tribunal expects there to be a photograph on social media and perhaps a witness statement or oral testimony from a fellow classmate in [Country 1] who bore witness to that relationship. Furthermore, given the applicant’s oral evidence at hearing that his then girlfriend [Ms A] participated in [performances] with [Mr B] at their school in [Country 1], during which [Mr B] presented [Ms A] [details deleted], the Tribunal would expect there to be some evidence of this memorable [performance], such as a photograph or comment on social media or perhaps a witness statement or oral testimony from a fellow classmate in [Country 1] who bore witness to the performance.
In the circumstances of this particular case and the applicant’s claims, the Tribunal considers that the lack of any corroborative evidence, particularly documents to support the applicant’s claims, raises further concerns about his credibility and the genuineness of his claims.
Sixthly, the applicant’s oral evidence at hearing given in support of a range of claims was particularly vague and lacking in detail, tending to indicate that the applicant was not speaking about a lived experience. At times, when the Tribunal sought further detail, the applicant was unable to yield further information or provide evidence that accorded with country information. This is of concern to the Tribunal as it undermines the credibility of his evidence.
For example, when asked to describe the content of his bi-weekly communications with [Ms A] between her departure from [Country 1] [in] December 2012 and their meeting again in China [in] June 2013, the applicant stated that they spoke about their past, their school life and her life in China since marrying [Mr B] who was ‘rich and powerful’. When pressed to provide further detail about the nature of their communications given that he was communicating with a woman who had abandoned him in order to marry another man, the applicant was unable to elaborate apart from stating they spoke about ‘daily life’. By way of further example, when the Tribunal explored the applicant’s understanding of his parents’ experiences in China when they were notified on [the specified day in] June 2013 by police of his detention, and then harassed by police officers after he escaped China, the applicant gave very little detail apart from what had been previously stated in the written material before the Tribunal.
The Tribunal raised its concern with the applicant at hearing that his vague and undetailed responses in relation to these and other matters, which the Tribunal thought would be reasonable for him to know and recall, might lead it to form the view that he had fabricated or otherwise embellished his claims. The Tribunal also indicated that his evidence was, at times, hesitating and brief and that he appeared unable to provide much detail beyond a recitation of the written material that had been presented in the July 2018 statutory declaration, the July 2022 statement and the August 2023 declaration. By way of response, the applicant stated that he was ‘telling the truth’ about what had happened to him, that he had not rehearsed his evidence by memorising his written claims to repeat at the hearing and that he did not want to think about many of the memories which had been discussed during the hearing.
While the Tribunal does not expect an applicant to fluently recall at hearing every detail in relation to their claims, it is surprising that the applicant was unable to provide spontaneous and free-flowing oral evidence in relation to a range of personal matters such as the development of his relationship with [Ms A] and how that relationship was maintained after she had married [Mr B]. Furthermore, in relation to the applicant’s understanding of his parents’ experiences, it is not unreasonable in the circumstances of this case to expect that he would be able to recall further detail about their individual personal reactions to his arrest, how they had assisted him with his escape from China, the nature and frequency of the police harassment they suffered as a result of his escape from China and what adverse impact that had upon their daily lives.
In the circumstances of this particular case, the Tribunal considers that the lack of detailed oral evidence at hearing to support the applicant’s claims raises further concerns about his credibility and the genuineness of his claims.
By way of further example, when asked at hearing to explain how he learnt about the anti-corruption movement in China such that he felt empowered to make a complaint at an anti-corruption bureau soon after his return to China in 2013, the applicant explained that he became aware of it by watching television and reading newspapers during 2012 while he was living as a student in [Country 1]. He told the Tribunal that he felt encouraged by the anti-corruption movement’s emergence in 2012 ‘when Xi Jinping became China’s Chairman’. Asked whether he could recall any specific events reported in the [Country 1] media during 2012 that gave him confidence to later lodge a complaint against a police officer in China in June 2013, the applicant told the Tribunal that the government arrested a corrupt official, namely Cai Hou Xu who was the head of the national police department. Utilising s 424AA of the Act, the Tribunal put to the applicant that country information[18] did not support his oral evidence as it indicated that Cai Hou Xu was an army general (not a police official) who had only been placed under investigation by the Chinese authorities in 2014 after the applicant’s arrival in Australia. By way of response, the applicant conceded that he may have been mistaken about the case of Cai Hou Xu. The Tribunal considered the applicant’s response and finds it does not overcome its concern about his insufficient knowledge of the anti-corruption movement in China, specifically its emergence and how that knowledge empowered him to a degree that he felt confident to lodge a complaint at an anti-corruption bureau in [City 1] less than a few days after returning to China [in May] 2013. While the Tribunal is prepared to accept that asylum seekers may not accurately recall exactly when events occurred some 10 years ago, it is difficult to accept that the applicant was unable to recall any specific information relating to media reports about the anti-corruption movement in China which emboldened him as a student while living in [Country 1]. In the circumstances of this case, the Tribunal expects the applicant to have been able to provide greater and more accurate detail about matters that evoked his interest in the anti-corruption movement in China during 2012 given his preparedness to engage with anti-corruption officials in a city outside his home town of Fuqing only days after returning to China from [Country 1].
[18] Zhiyue, B., ‘The Rise and Fall of Xu Caihou, China’s Corrupt General’, The Diplomat, 18 March 2015
Seventhly, the Tribunal has significant concerns about the veracity of the applicant’s claims in relation to the circumstances surrounding his departure from [Airport 1], China [in June] 2013 without incident, only the day after having been released on bail from police detention. In paragraph 11 of the July 2018 statutory declaration, the applicant claimed that [Girlfriend A] assisted him to leave China through her knowledge of a ‘police officer at [City 1] PSB’. This somewhat undetailed claim was reiterated in paragraph 8 of the July 2022 statement.
Since at least 2010, DFAT and other agencies have consistently maintained that exit from China is strictly regulated whereby various government agencies, including police, feed data into a database and this technology is used to create an exit control list. If a person is detailed on this exit control list, it is very unlikely and probably impossible that they would be able to leave China.[19] Furthermore, country information issued since 2010 indicates that airport security officials have access to the Public Security Bureau of China’s online database of Chinese citizens who have been convicted of crimes or are wanted by authorities, also known as Policenet or Golden Shield.[20] Furthermore, DFAT assesses that it is almost impossible to exit China without authorities’ knowledge and that 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 police and other public security officials.[21]
[19] DHA, 'China – CHN36488 – Steel – Criminal charges – Corruption – Travel permission', Country of Origin Information Section (COIS), 14 April 2010, CR829A2B4165; DFAT, Country Information Report – China, 2015, para 5.16; DFAT, Country Information Report – China, 2015, para 5.20; DFAT, Country Information Report – China, December 2021, paras 5.31 - 5.35
[20] DHA, 'China – CHN36488 – Steel – Criminal charges – Corruption – Travel permission', Country of Origin Information Section (COIS), 14 April 2010, CR829A2B4165; DHA, 'CHN36806 – Shenzhen Market – Corruption – Guangdong – Crime – Black Gaols – Alert Watch List – Departure Exit', Country of Origin Information Section (COIS), Country of Origin Information Section (COIS), 07 June 2010, CR829A2B4191; DHA, Standard Q & A Report, China: 20190218152038 – Christianity in Fujian province – Airport departure process, pp 7-8.
[21] DFAT, Country Information Report – China, 2015, para 5.5; DFAT, Country Information Report – China, December 2021, paras 3.28, 3.38 and 3.40
Concerned about the vague and implausible nature of the applicant’s claim in relation to his uninterrupted departure from China using his own passport after the payment of a bribe to a police official, the Tribunal put the country information outlined above to the applicant for comment noting that this claim was difficult to accept in light of that information. By way of response, the applicant told the Tribunal that the authorities in China are ‘very corrupt’ and ‘we paid a lot of money to them’ and that when he left China some 10 years earlier ‘money could solve anything’. The Tribunal has considered this response but finds that it does not assuage its concern for three reasons. First, the response is again vague and lacking in detail, particularly in terms of the amount of the bribe paid and the circumstances in which the bribe was paid. Second, while the Tribunal does not discount the possibility that police officials in China might be bribed as contended, there was no explanation as to why this particular police official would accept a bribe at great personal risk in order to assist a recently detained person unknown to them. Third, the Tribunal prefers the country information on this issue which generally indicates that it would be almost impossible to bribe well-paid police officials in China for the purpose of evading detection upon attempting to leave China via a major airport. In the Tribunal’s view, this impossibility is heightened in the applicant’s case given that it would be extremely unlikely for a [City 1] PZB official to assist a recently detained person to abscond and escape China where that person had lodged a corruption complaint in relation to a fellow police officer who was the nephew of [Relative A], a leading Communist party official and [Official A] in June 2013.[22]
[22] [Source deleted.]
Eighthly, the applicant’s delay in seeking protection strengthens the Tribunal’s concerns about his claims.
The applicant claims that he was harmed in China in June 2013 and thereafter threatened whilst living in [Country 1]. However, the Tribunal notes that he arrived in Australia [in] September 2013, became an unlawful non-citizen on 23 November 2017 and applied for a protection visa on 4 July 2018. At hearing, the Tribunal put to the applicant its concern that this significant delay in seeking protection for a period of up to five years after he had been detained in China and threatened shortly thereafter gives rise to doubt as to whether his fear of harm was genuine and whether he had fabricated or embellished his claims. When articulating its concern, the Tribunal suggested the delay could not reasonably be attributed to the time taken to gather supporting evidence as none had been provided with the application at lodgment. The Tribunal also observed that the applicant had been an unlawful non-citizen for a period of about eight months prior to lodging the protection visa application, a matter which suggested his claims may not be genuine as they could have been readily made before his student visa expired as it was apparent he was not unfamiliar with the need to remain lawfully in a country outside China as he had resided temporarily in [Country 1] and Australia as the holder of a student visa before becoming an unlawful non-citizen in Australia.
By way of response, the applicant explained that he was initially worried that seeking protection would create further trouble for his parents in China but after performing poorly in his studies in Australia he told his sister in Australia in May 2018 about his student visa refusal onshore and the trouble he faced in China. She then encouraged him to apply for a protection visa.
The Tribunal has considered this response and finds that it does not assuage its concerns. As set out above, the Tribunal has significant concerns about the applicant’s credibility. The applicant’s explanation for why he applied for a protection visa in 2018 does not alleviate the Tribunal’s concerns about the genuineness of his claims and his reasons for applying for a protection visa. It is especially difficult to accept that the applicant did not consider the option of applying for a protection visa earlier given the nature of his claims and the fact that the earlier lodgment of an application would have avoided any prospect of him, a person otherwise known to be compliant with immigration requirements, becoming an unlawful non-citizen for a period of approximately eight months after his student visa ceased. The Tribunal also finds the explanation for his initial reticence towards lodging an application out of belated concern for his parents to be vague and difficult to accept given their ongoing involvement in his case; initially by supporting [Cousin B] and [Girlfriend A] in facilitating his escape from China, and later through his father facilitating the provision of inauthentic documents to support the application for protection.
Before considering these eight credibility issues, the Tribunal turns to the various explanations for the deficiencies in the applicant’s claims that have been presented in his written statements and at hearing whereby he has indicated that he is vulnerable, has endured a ‘miserable past’, lives in constant fear and has been, at various times, confused and distressed.
The Tribunal notes that the written claims made by the applicant for protection are very detailed in terms of the specific events that occurred. Further, in the hearing the applicant did not prevaricate and he said he did not remember relevant issues but instead simply provided inconsistent or insufficient accounts. The applicant’s overall evidence in the hearing, and his responses to questions and seeming to understanding them, did not persuade the Tribunal that the applicant was suffering any mental health difficulty which seriously impeded his ability to give evidence. Additionally, there is no evidence of the applicant undertaking any mental health treatment or ongoing counselling to address his claimed mental anguish, confusion and distress.
Given the relatively detailed and non-prevaricating way in which the applicant has provided evidence over time both in writing and at hearing, the Tribunal is not satisfied that the cumulative impact of the credibility concerns identified above is as a result of the applicant’s vulnerability or for any other reason. Some of the credibility concerns, particularly those involving plausibility, are not dependent on the applicant’s mental state or capacity.
On that basis, these eight credibility issues, cumulatively considered, are significantly damaging to the applicant’s overall credibility. There are multiple inconsistencies, including on key matters as to duration of the applicant’s residence in China during June 2013, the nature and duration of events that occurred in China during 2013 and the nature of the relationship between the applicant and [Girlfriend A]. Having considered all the applicant’s claims and evidence, for the reasons set out above, the Tribunal finds that the applicant is not a witness of truth. In particular, the Tribunal is not satisfied that the applicant has been a truthful or credible witness in terms of claims made in relation to:
· the nature and degree of his involvement with [Ms A], [Mr B], [Cousin B] and [Girlfriend A];
· his interest in the anti-corruption movement in China which prompted him to lodge a complaint with an anti-corruption bureau in June 2013;
· various events in Fujian during June 2013, including his lodgment of a complaint with the anti-corruption bureau, his arrest by police, his detention, his release from detention on bail and his subsequent escape from China through [Airport 1] after the bribery of an official;
· [Mr B], police and other Chinese authorities having had, or continuing to have, an adverse interest in him and a desire to cause him serious or significant harm.
The Tribunal accepts that the applicant was born in China and was granted visas authorising him to undertake post-secondary school studies in [Country 1] and Australia. However, the Tribunal is not satisfied that:
· the applicant has ever held a genuine interest in anti-corruption activities in China or held or garnered a profile as a person with such an interest or belonging to a group of anti-corruption activists;
· the applicant was in a relationship with [Ms A] as claimed;
· the applicant and [Ms A] lodged a complaint about [Mr B] at the anti-corruption bureau in [City 1] in June 2013;
· the applicant and [Ms A] were arrested and detained by police in China in June 2013;
· the applicant was released on bail from detention, and shortly thereafter, escaped from China through [a named airport] because [Girlfriend A] bribed a police official at the [City 1] PSB.
Given the above findings, it follows that the Tribunal does not accept that the applicant, [Ms A] or his family have ever been threatened or harassed for the reasons claimed.
Accordingly, taking into account the above findings, the Tribunal finds the applicant does not face a real chance of serious harm, or real risk of significant harm, should he return to China now or in the reasonably foreseeable future for reason of his claimed profile as an anti-corruption activist or for reason of his claimed activities in China during June 2013.
The applicant’s claims that he faces persecution for reason of his religion
In his protection visa application form, the applicant described himself as an atheist. However, in the August 2023 declaration the applicant raised a claim that he would suffer serious harm due to his Roman Catholic faith if he returned to China. In addition to making reference to various country information sources pertaining to religious freedom in China, the applicant provided the following explanation for his adoption and practice of the Catholic faith at paragraph 22 of the August 2023 declaration (footnotes omitted):
My sister [Sister A] (born on [DOB 1]) is a devout Roman Catholic. After I arrived in Australia, my sister always encouraged me to go to the church. I was eventually moved by Holy Spirit. Since November 2022, I have been attending [Church 1 in] NSW, regularly on a weekly basis. In May 2023, I started a 1-year Catechism Class at the church specially for Holy Baptism. I will be baptised on [a specified day] next year (2024). I firmly believe in God. I am willing to become a genuine Roman Catholic and devote myself to God.
Various letters of support attest to the applicant having joined the church community at [Church 1 in] New South Wales in November 2022 where he has attended Sunday mass, undertaken studies and is to be baptised on [a day in] 2024.
At hearing, the applicant told the Tribunal that he grew up as an atheist but his sister had always encouraged him to embrace religion. Asked to explain why he became religious, the applicant told the Tribunal that at some point in August 2022 he went fishing near [a town] in New South Wales with friends when a large wave washed him into the ocean. Asked to elaborate, the applicant made the following statement:
I was dragged into huge waves and thought I would definitely die at that time and I felt very hopeless. I suddenly remembered what my sister told me that when you are in trouble you can pray to God. I said to myself ‘God please save me, God please save me’. I was close to drowning in the ocean but fortunately I did not.
When pressed as to whether there were any witnesses to this near drowning incident, the applicant told the Tribunal that he went there with his friends. When asked whether the Tribunal could telephone one of these friends in order to corroborate his account of this incident, particularly in relation to when it occurred, the applicant told the Tribunal that this was not possible as he no longer worked with this friend.
Having noted the applicant’s evidence that he was undertaking Catechism classes and would be baptised [as specified] next year, the Tribunal asked the applicant to explain the significance of the baptismal ceremony and what it represents. By way of response, the applicant explained that baptism meant he would officially become a Catholic. The Tribunal finds this response is indicative of a person who has a superficial understanding of the sacraments, regarding baptism solely as a hallmark of being recognised as a Catholic. Asked about his faith practice, the applicant told the Tribunal that he prayed before going to bed at night and before going to work. The Tribunal explored this further and it became apparent that the applicant had no knowledge or understanding of commonly known prayers, such as the Lord’s Prayer, saying that he had only been taught ‘to do crossing’. He then demonstrated the sign of the cross but was unable to explain to the Tribunal what that meant.
Having considered this evidence, the Tribunal raised a concern with the applicant that his limited church attendance and superficial understanding of prayer, baptism and Catholic faith practice more generally was indicative of a person who had only recently embarked upon a faith journey and had not embraced religion with any discernible vigour. The applicant acknowledged the Tribunal’s concern but indicated that his superficial understanding of Catholicism did not mean that he did not believe in God. The applicant also told the Tribunal that he would be committed to Catholicism for the remainder of his life thereby allowing him a lot more time to learn about his religion.
Each individual’s faith journey is unique. However, the applicant’s evidence at hearing leads the Tribunal to find that the applicant has only recently embarked upon that journey such that he has a very superficial understanding of Catholicism and that his faith practice in Australia has been limited. On that basis, the Tribunal accepts that the applicant is a Catholic, albeit not a devout Catholic or a person seeking to proselytise or lead a faith-based group or church community.
Asked at hearing about the proposed nature and extent of his religious practice and observance if he returned to China, the applicant stated that he would not attend any church in China. When pressed further on this issue, the applicant stated that he did not intend to go to any church in China because they were all controlled by the Chinese government. When pressed as to whether he could attend an underground church in Fujian, the applicant told the Tribunal that it was not safe to attend those churches.
As discussed with the applicant at hearing, the DFAT noted in its most recent country information report[23] that the Chinese Government reports there are 38 million Christians in China, while other sources estimate higher numbers. DFAT assesses that some underground Catholics loyal to the Vatican are able to practise their religion discreetly and some may face severe restrictions. Most Catholics will follow their local leadership, whether it is controlled by the Chinese Communist Party or the Vatican, and so leaders are more likely than congregants to face government attention but the situation differs between places and communities throughout China. DFAT assesses Catholics, both underground and Chinese Patriotic Catholic Association (CPCA) members, are subject to low levels of societal discrimination. Notably, DFAT described the Fujian Province as ‘a traditional stronghold for Catholicism and underground Catholicism in particular’. In a thematic report on the Fujian Province issued in December 2016,[24] DFAT observed that Asia Harvest estimated that in 2011 there were one million worshippers of Catholic-linked unregistered churches in Fujian. Generally speaking, DFAT’s in-country contacts suggest that local authorities in Fujian tolerate operations of unregistered churches that operate discreetly, including by limiting the number of worshippers and meeting in inconspicuous locations. DFAT understands that congregations of up to 50 people can meet weekly in private houses without being closed down or repressed by local authorities. Furthermore, DFAT indicated that only individuals engaging in ‘active and public proselytising’ would likely be exposed to harm such as harassment, raids and occasional violence.
[23] DFAT, Country Information Report – China, December 2021, paras 3.28, 3.38 and 3.40
[24] DFAT, Thematic Report on Fujian Province – China, 16 December 2016, paras 3.11 – 3.13
It was then explained to the applicant that the country information indicated the situation for practising Catholicism in Fujian is generally more liberal than in many other parts of China.[25] While the country information indicates that religious control has tightened in recent years as it has all over the country, in Fujian it is coming from a more relaxed starting point. Country information indicates that although the restrictions being imposed by the Chinese Communist Party on religion are intensifying, the situation for most Christians has not really changed and the risk of them experiencing treatment that amounts to persecution due to their religion is very low.[26] Country information also indicates that people who attend smaller house churches and practise their faith are likely to be able to do this without interference from the authorities, thereby making it possible for him to attend underground church gatherings as well as pray in the manner that he currently does in Australia. The Tribunal then put to the applicant that he could continue to practise his religion in Fujian at an underground church such that he would not face a real chance of serious harm or real risk of significant harm. Asked to comment upon this country information and the Tribunal’s characterisation of how it applied to him, the applicant gave the following response:
According to my knowledge, some people of the church are members of the Chinese Communist Party so what they believe is not the God, they are just loyal to the Chinese Communist Party and that’s why I refuse to attend churches in China. So it’s pointless if I attend church like that because that would mean I am more loyal to the Chinese Communist Party than God.
[25] See, eg, China: Treatment of members of Christian Patriotic Churches, including the Protestant Three-Self Patriotic Movement (TSPM) and the Chinese Catholic Patriotic Association (CCPA) by the authorities and the Public Security Bureau (PSB); the revised regulation on religious affairs in 2018, including restrictions on Patriotic Churches (2020-April 2022), Research Directorate, Immigration and Refugee Board of Canada, 10 May 2022, CHN200992.E; DFAT Report 3.34
[26] In addition to the country information referred to above, see also UK Home Office Country Policy and Information Note China: Christians, November 2019
The Tribunal has considered this response and finds that it does not address the country information which generally indicates that Catholics in Fujian may practise their religion in the underground church context without interference from the authorities. Notably, the applicant’s response is indicative of a failure to appreciate the distinction between State-sanctioned churches and underground churches in China. Considering the applicant’s claims at their highest, particularly when considered in the context of the country information set out at paragraphs 23 to 28 of the August 2023 declaration, the Tribunal finds there is little persuasive evidence indicating that Catholics in Fujian are forbidden from practising Catholicism in underground churches which are loyal to the Vatican. There is also no persuasive evidence before the Tribunal supporting the applicant’s assertion that all churches in China, particularly underground churches within Fujian, have been infiltrated by members of the Chinese Communist Party and that such non-State sanctioned churches are ‘loyal’ to the Chinese Communist Party as opposed to the Vatican or, as contended by the applicant, God.
While the Tribunal appreciates that underground churches have been closed by the authorities in some parts of China, the country information before the Tribunal clearly indicates that there is a large underground church network in Fujian which the provincial authorities have allowed to operate, albeit with some restrictions in terms of congregation size, for many years, and there is no persuasive evidence before the Tribunal indicating that this network has been eradicated, or will be eradicated in the foreseeable future. The Tribunal therefore prefers the country information on this issue and finds that a real chance of serious harm, or real risk of significant harm, does not exist if the applicant were to return to China and elect to practise his faith in an underground church in Fujian.
The Tribunal does not discount the applicant’s attendance at church in Australia as solely intended to support claims for refugee status. It accepts that he may have found a group of churchgoers in Sydney, including his sister, who provide him with emotional and other support. Even if he has absorbed, or engaged with, the Christian values of the church he is attending in Sydney, the Tribunal finds that he will not be restricted from attending an underground church in China where he can practise his faith as a member of a congregation should he wish to do so. Furthermore, the country information indicates that the applicant may continue to pray in China as he currently does in a private context, as well as be baptised by a priest in an underground church, without giving rise to a real chance of serious harm or real risk of significant harm.
For the reasons explained above, and considering the country information referred to, the Tribunal finds that the applicant would be able to continue practising Catholicism in China and therefore it does not accept the applicant’s claim that he would be prevented from practising his religion in China or any suggestion that it would be impossible for him to do so and thereby cause him harm. In light of this, the Tribunal finds that the applicant would not face a real chance of serious harm as a result of his Catholic beliefs and practices if he returned to China either now or in the foreseeable future.
Accordingly, taking into account the above findings, the Tribunal is not satisfied that the applicant faces a real chance of serious harm, or real risk of significant harm, should he return to China now or in the reasonably foreseeable future as a result of what the Tribunal accepts would be his continuing practice as a Catholic in China.
Conclusion
Given all of these findings, the Tribunal is not satisfied that the applicant faces a real chance of serious harm or real risk of significant harm for any of the reasons claimed.
In summary, the Tribunal is not satisfied that there is a well-founded fear of persecution for the applicant for a reason set out in s 5J(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk of him facing significant harm.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Papadopoulos
MemberAttachment – Summary of the relevant law, mandatory considerations and an extract of key provisions of the Migration Act 1958
The relevant law
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted below.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted below.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, 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.
Extract of key provisions of the 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.
…
Key Legal Topics
Areas of Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Standing
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Statutory Construction
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