2304874 (Refugee) - [2025] ARTA 1735

2304874 (REFUGEE) [2025] ARTA 1735 (4 JULY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 2304874

Tribunal:General Member Rosa Gagliardi
Date:4 July 2025

Place:Australian Capital Territory
Decision:The Tribunal affirms the decisions under review.

Statement made on 04 July 2025 at 12:05pm
CATCHWORDS
REFUGEE – protection visa – China – imputed political opinion – petitioner against local official – corruption – ban on trading – detention – physical assault – delay in applying for protection – exit procedures – return visits to China – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 56, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 April 2023 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be nationals of China (a matter the Tribunal accepts) applied for the visas on 8 December 2021. The delegate refused to grant the visas on the basis that they did not accept that the applicants met the refugee criteria under the Migration Act (s.36(2)(a)) or that in the alternative they met the complementary protection requirements cl.36(2)(aa).
The first named visa applicant only appeared before the Tribunal on 30 April 2025 to give evidence and present arguments. His spouse, the second named applicant also attended the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.
NB: Please note the Tribunal uses the term “the applicant” and “the first named applicant” interchangeably.
Evidence before the Department
In a statement that was undated and unsigned the applicant wrote:
·He used to be the General Manager of a [product 1] company in Guangzhou, doing wholesale business involving [product 2] and [product 1]. Doing business in China was not easy as government officials always treated businesses as cash cows for money and he had been struggling to deal with it.
·In April 2016, [Position 1] of the Industrial and Commercial Bureau of [District 1] ([Mr A]) came to inspect the company he worked for. [Mr A] had a bad reputation and asked for money. He had a mistress. The applicant did not have a harmonious relationship with [Mr A], and they quarrelled. After the inspection
[Mr A] told the applicant his daughter was getting married and asked the applicant to provide [amount] yuan. The applicant complained and [Mr A] left angrily.
·After a few days, officials from the District Industry and Commerce Bureau suddenly came to the company for inspection. An official stated they had received a report saying that the [product 1] produced at the company was shoddy and that the company should be sealed until the investigation was completed. They took a few bags of [product 1] and left. The applicant claims he knew this was someone from the Bureau of Industry and Commerce looking for trouble, but he needed their approval, or he could not trade, and customers’ orders could not be filled in time. The company also compensated customers for losses because ordered goods were not delivered. The first named applicant felt very sad.
·After waiting for 2 weeks, the applicant had not received any information from the Industrial and Commercial Bureau, so he went to find [Mr A] at the Bureau of Industry and Commerce and begged him to remove the seal (the bar on trading). [Mr A] asked him to go back and wait for a reply. The first named visa applicant was very angry, saying [Mr A] had abused his power and was not worthy of being a civil servant. After others heard of their quarrel, they dragged him out of [Mr A’s] office.
·Faced with a difficult situation, he decided to report [Mr A] for asking for bribes and advised that [Mr A] was of poor character to the [Authority 1] of the Guangzhou [Administration]. Later, the first named applicant received a reply from the Industrial and Commercial Bureau advising they did not support the applicant’s allegations against [Mr A]. [Mr A] called the first named applicant stating that there was nothing he could not handle in Guangzhou, and it would be useless to sue Beijing.
·One night he was surrounded and beaten by a few strong men, and they warned him not to report, or he would be killed. He was in severe pain and couldn’t even walk. He knew this was [Mr A] ([Position 1]) looking for someone to threaten him. He called the police and there was no more news after that. Later his house was smashed, and paint was splashed on the door of the company he worked at. Although he was threatened, he did not give up reporting.
·[In August], the Public Security Bureau of [District 1] called the applicant and asked him to help investigate the matter. When he got there the police said that the applicant was falsely accusing a government official and forced him to admit that he was falsely accusing [Position 1] [Mr A]. He refused but was locked up with no water and no food. After being locked up for two days he had no choice but to write a statement. Because he was worried that [Mr A] would trouble the applicant, he hurriedly fled to Australia.
·In Australia he continued to post on the internet, accusing [Mr A] of corruption and government officials of protecting each other.
·The police could not find him, so they went to find the applicant’s father. The police threatened to arrest him if he did not cooperate with the investigation. His father had to tell them that the applicant was in Australia.
·After that the applicant received a phone call from a man claiming to be from the police station. He threatened the applicant that him posting on the internet would affect his family. The applicant was afraid that his parents would be affected. Now his visa was about to expire and for the personal safety of his family and himself he submitted an application for protection.
In the Departmental decision the delegate noted that the applicant had been given opportunities to submit his claims in greater detail and with supporting information. In addition, on 21 December 2022, the Department sent the applicants a letter inviting them to provide additional information under s.56 of the Act, advising that their statement of claims lacked substantiating details, such as dates and locations, and supporting documentation, and that no evidence to substantiate their claims had been provided. In addition, the Department asked the applicants to comment on several particulars:
-Delay in lodgement of the applicant’s protection visa application. He did not apply for protection until four and a half years after arriving in Australia, raising concerns about the genuineness of the first named applicant’s claims in particular.
-Return to China – the applicant claimed he feared returning to China because he was threatened by Chinese officials, however, since his arrival in Australia in September 2016, he had travelled to China between [dates in] January 2020.
The Department also asked for specific evidence to support his claims such as:
-Evidence that he was a General Manager of [Business 1] .
-Copies of any documents relating to his business dealings or association with [Position 1] [Mr A].
-Details and evidence of reporting [Position 1] [Mr A] to the [Authority 1] of the Guangzhou Administration.
-Evidence of response the applicant received from the [Authority 1] of the Guangzhou Administration.
-Evidence of filing police report in regard to being beaten by a few strong men.
-If he was arrested or faced arrest for reporting the corrupt officials, copies of any arrest warrants or charge sheets issued to him.
-Details of the social media accounts where he posted his comments about the corrupt public officials.
-Copies of the comments he posted on these accounts about the corrupt public officials.
-Details and evidence that a Chinese police officer contacted him in Australia.
As at the time of writing its decision on 5 April 2023, the Department had not received any additional information. Nor was there any evidence the applicant had attempted to contact the Department to provide further information about his claims or request additional time to respond to the s.56 invitation.
Evidence before the Tribunal
No further submissions were provided to the Tribunal prior to or post the hearing.
The hearing
The applicant stated he first came to Australia in December 2009 around Christmas time with his wife as Visitors. His son then obtained a student visa, and his wife accompanied their son to Australia in about April 2015. The first named applicant at that time remained in Australia for two to three months with them because they were not accustomed to a new country. Asked how many times he had travelled to Australia and returned to China, the applicant stated that altogether it would have been 7 times or so.
The applicant last came to Australia on a subclass 188 (the current Business Innovation and Investment (Provisional) visa. He obtained that visa roughly in April 2016. He used that visa to stay in Australia for four years until April 2020. His son at that time was used to studying in Australia and he was afraid to return home so he really did not know what visa he was using, but it lasted for around a year.
The first named confirmed that when the subclass 188 visa expired, he and his wife applied for Visitor visas, but they did not know how to apply for protection even though they did not want to return to China, so they applied for Visitor visas as an interim measure. The Tribunal asked whether a migration agent had helped them with the Visitor visas. He stated a friend introduced them to this agent. Later they became acquainted with a woman from China who obtained their details and forwarded it to their lawyer, so they applied for protection visas. Currently the couple did not have a person representing them.
The applicants’ son is [age] years of age, the applicant explained his son had been in Australia for ten years. Currently he was studying in [City 1]. The first named applicant stated he and his wife only had one son. The first named applicant stated his father had passed away in the previous year, but his mother was still alive in China. The Tribunal asked whether he had returned to China when his father passed away and the applicant responded he first returned to China when his father suffered a stroke in 2017 for a few days. In January 2020 his father’s health deteriorated, and he was paralysed and his siblings told him to go back home as they did not think his father had that long to live. He, his wife and son returned to China to see his father. On arrival in China the first named applicant’s father told them to leave the country and go away. Luckily it was during New Years’ time when this happened. The Tribunal asked whether his visa would have permitted the applicants to travel to attend his father’s funeral, and he stated that he didn’t have a lawyer then but as far he knew the visa they held did not permit them to leave Australia. The applicant thought that if they left the country they would not be permitted to return to Australia.
On the two occasions he returned to China when his father was very ill, he was holding a subclass 188 visa which enabled him to travel to and from Australia.
The first named applicant stated he went to high school but never went to university. He had [specified siblings] in China. Previously his [siblings] had run businesses that went well but then they did not go well, and they were no longer running such businesses. After high school the applicant stated he went to work in a [factory] that belonged to his uncle, helping with the purchasing, administration and marketing side of the business. The applicant stated he did this work for ten years until 2005 when he started on his own retailing – running a [product 1] shop.
The Tribunal asked the applicant given he was able to return to China several times why he could not do so now. He responded the first time he went back secretly alone visiting his father who was very ill. His father was very worried as it was dangerous, and he did not want anyone to see the first named applicant on the streets. The second time was to visit his seriously ill father with his wife and son. His wife and son had been in Australia for ten years and that was the one and only time they had returned to China.
The Tribunal asked the applicant why it would have been dangerous for him on the streets, and he responded because the head of the Department was against him, and he had a lot of connections. The first named applicant stated that the head of the Department was against him because he was the second in charge of the [Agency 1] overseeing the business he was in. The Tribunal queried whether this was at the national level, and he stated no, it was only at the local level in Guangzhou where he operated his business. The applicant stated this man’s name was [Mr A name variants]. The Tribunal asked whether the applicant had evidence of this man’s existence. For example, if he was working for the local [Agency 1] there would have been an organisation chart showing he was second in command. The first named applicant stated he was the assistant head, and again the Tribunal asked whether he had evidence of this. The Tribunal noted that the Department had asked repeatedly for him to provide evidence of his claims, but he had not done so.
The Tribunal asked the applicant to set out how he started to interact with the second in charge of Commerce in his area. The applicant stated that the business they were operating was under his administration. After they had contact with him, any time his family had festive occasions such as birthdays, then everyone under his administration should know what to do. Giving presents was one thing but they also had to be subservient because they were peasants. They had to make him feel great. The daily contact involved making him happy.
The applicant stated that this was not the only official he had to please. They also had to send presents to other officials, but this gentleman was more severe in his contact. Maybe it involved a personality clash because the applicant felt uncomfortable in giving him presents and he had to lower himself so much to make him happy. The first named applicant was not comfortable doing this. When asked, the first named applicant stated he gave such gifts as money and good food, and when they went away, they had to bring things back for him. You could not present the gifts openly - you had to leave the gifts there, so he knew where it was.
The applicant stated he had heard that this man had a family but had never met them. Asked if he had a wife and children he said, yes. The Tribunal queried whether perhaps this gift giving was low level bribery and asked what happened after that. The applicant stated that was correct. The simple matter is that if he did not give him presents this man would create problems such that he could not operate the business.
The Tribunal queried how much money he was giving [Mr A name variants]. The applicant responded it was difficult to say. Every year they paid for meals at least 7 to 8 times. The last time when his daughter was getting married, he asked for gifts of [amount] RMB (roughly $[amount] AUD in today’s currency) which he could not afford. The Tribunal asked when this might have been. He responded it was in April 2016, when he went back to China. At that stage his subclass 188 was still in effect.
The Tribunal asked how the business in China was running with all his absences. The first named applicant stated that the administrative side was done by his elder brother and his wife. The purchasing side was handled by his elder brother and the selling aspect was done by his wife. The Tribunal asked whether she was operating the business from Australia, and he stated it was while she was in China. The Tribunal again asked how, while he travelled backwards and forwards after coming to Australia, the business in China was able to operate. The applicant responded in April 2015 his son came with his mother to Australia and at that time they had arranged with his elder brother and his wife to look after the business. Asked if the business was still ongoing, the first named applicant stated that the gentleman had stopped the goods reaching customers so they could not operate, and they closed down the business. Asked when he closed the business, the applicant responded that it was in 2016 - since “that incident”.
The Tribunal asked the applicant to be precise about what the “incident” was, and he responded the official requesting the first named applicant give him [amount] RMB for his daughter’s wedding. The first named applicant told the official that business was not going well and could he offer a lower amount such as 500 RMB. The official was unhappy and soon afterwards fellow officials came to the shop and told him that customers had complained regarding the quality of their merchandise. Asked what happened after that, the first named applicant stated the officials took a few [portions] of the [product 1] and put a stop on trade. They did not allow them to operate the business while their investigation into the business was ongoing.
The Tribunal asked whether he had received any official documentation from the authorities to say he was not permitted to operate. The applicant responded at that stage they were given a form saying there were customer complaints, and they needed to investigate these. The Tribunal asked whether the applicant had a copy of that documentation indicating there had been complaints by customers about the business and that the applicant had to suspend trade while the authorities investigated this matter. The first named applicant stated that at that stage he did not appreciate the seriousness of this problem. The customers had ordered the goods, but they could not supply the customers with goods. The applicant clarified that he supplied [product 1] to customers who then made [product 2].
The first name applicant claimed they waited for two weeks and there was no update from the Department, so he approached the [District Commercial Bureau] to ask about progress and requested the suspension of trading be lifted. The Tribunal again requested the applicant whether he had evidence that he was ever barred from trading by the authorities. The first named applicant responded his personal feelings were that being a person operating a business should be like a normal person interacting with other persons. He always had to appease this person, and he thought it was not normal resulting in him wanting to go overseas. The Tribunal advised the applicant that it had asked him a very direct question – did he have evidence of this bar on him trading – but he kept deflecting. The Tribunal asked whether there was a document banning the applicant trading in his business until investigations were undertaken. The applicant responded yes, it said they could not operate the business, and they were going to do an investigation.
The Tribunal asked from who he was awaiting a reply to be able to reopen his business. He stated it was the [District Commercial Bureau] that had suspended his trading. This was the focus of the incident, so he spoke to the assistant official and he was told to go back and wait. The Tribunal asked whether it was [Mr A name variants] who told him to wait, and he responded yes. He just kept waiting. The applicant stated that they started arguing loudly and other officials and employees saw this and he was dragged out of the office. The applicant told
[Mr A name variants] he was abusing his power and was asking for bribes and one week after that he received a reply; they could not find any wrongdoing regarding this official.

The Tribunal asked whether he had put his complaint in writing. The applicant hesitated then stated he was a professional and he submitted his complaints to the official. The Tribunal asked whether he had a copy of that document. The applicant responded that he was only approached by all the officials and told to go home to wait for the decision and he was not given anything.
Because the applicant did not get a result, they approached a higher authority to make a complaint. The Tribunal asked whether that was in writing. The applicant stated he did write it, but he was told to go home and wait for the result. Later there was no further reply. He approached the [Authority 1] and was told to wait. Someone rang him to tell him not to complain further. He received a phone call from [Mr A name variants] saying “Do not complain any further”. He said there was no point in him complaining to higher authorities. Even if he approached Beijing it would be on no use because he was a peasant. The Tribunal encouraged the first named applicant to continue with his account. He advanced that one night he was being stalked, followed by a few big fellas and then he was attacked and hit so he could not even walk. He was warned not to make any complaints. The Tribunal asked how many people were involved in beating him. He answered four. They were ruffians accustomed to hitting people.
The Tribunal asked given the applicant appeared to have been beaten so badly whether he attended a hospital at all, and he responded, “yes”. The Tribunal asked how he was medically treated and he stated they cleaned the wounds and cuts and gave him Chinese herbal medication. The Tribunal asked how he was cut. He responded they attacked with their fists – it was not really cuts; it was wounds. Asked which hospital he attended he said that it was the Chinese medicine hospital. The Tribunal asked whether he had documents that he was treated because he had wounds. The applicant responded he did not keep a copy, but the hospital authorities must have copies. At that stage he had the subclass 188 visa, and he thought he would just use that visa (to be safe).
His way of thinking was that by holding the subclass 188 visa he would be a merchant and businessman which would be a lot better than acting like a refugee: seeking protection. The Tribunal asked whether he could obtain evidence from the hospital where he was treated. The first named applicant stated it would be difficult as even if an event occurred a month ago, unless he knew someone in the hospital who could help him obtain the record, he did not think he could do so.
The Tribunal asked when the event involving the beating occurred. The applicant stated it was in the summertime, end of May or early June 2016. He was given the subclass 188 visa [in] April 2016. The Tribunal asked whether anyone helped him get the visa and he stated it was a specialist migration agent in Melbourne. After he was beaten the applicant stated he reported the attack to the police, but he was not told about what happened afterwards. Nothing happened after that. Asked if he put in a written report the applicant stated he went to the police and verbally told them what had happened. Of course, after he was attacked, and the police did not take any action, that is why he went to the [named] Section asking them to assist. The applicant stated he put his complaint in writing. Asked if he had a copy of that complaint the applicant stated he submitted the complaint and he was told to go home and wait and was not given any documents.
The applicant stated he then made a complaint to the [named] Section. He received a phone call and was asked to go to the police where he was asked to sign something to say he had made a false allegation against this official. The Tribunal asked whether he had written that false confession, and he responded he told the officers it was not a false allegation. He refused to write the report. He got two slaps on his face by an official. After he slapped him twice, he continued to refuse to make a false confession. Then he was hit again on his head and all over his body. Then he was locked up and not given any food or water overnight and he was again asked whether he would write the report withdrawing his complaint.
The Tribunal asked whether the applicant had been charged with any offences and he responded they just said he made false allegations against an official. He was told to write a report stating that his allegations were false. The second day the same thing happened – he refused to state that the allegations were false, and he was locked up again. Overnight he was thinking the matter over and concluded that there was no point resisting, so he wrote the report and then they released him. When he got home his parents saw the sorry state he was in and said it was unsafe to stay in China because if even the police could treat people like this, they could ask someone to harm him.
The Tribunal asked the applicant what had happened to his wife as she must have been worried when he had not returned home at night for two nights. The applicant responded his wife was already in Australia at that stage. When he was inside, she did not know about that. At that stage he decided to leave China for Australia. He wanted to continue the business, but he asked his elder brother to close it down. He stated that the reason he did not keep documentation was because he was thinking he was already in Australia and he was thinking he could stay here, lead a normal life, and continue to operate his business in Australia.
The Tribunal noted that he had stated that his elder brother shut down his business, but the applicant had stated that in fact it was the authorities who had shut down the business. The applicant stated that the government said he could not operate, but he still had to finalise the matters relating to the business, such as letting staff go and clearing everything. He asked his elder brother to assist him do that. For example, he had to discontinue the lease on the shop.
The Tribunal noted that the applicant stated that he had been posting things on the internet and had he had done so in China. The Tribunal asked what he might have posted on the internet. The applicant responded what had happened to him and what went on, and his treatment. The applicant stated he had also posted such things in Australia. The Tribunal asked whether he had evidence of such postings in China and Australia. The applicant responded that after the police found out he had posted things on the internet, they approached his father and told him the first named applicant had to delete what he had written on the internet otherwise his family would be implicated. Because they put pressure on his father and asked him where the first named applicant was, his father under pressure told them he was in Australia. The first named applicant stated he was actually called by the police and told if he did not delete what he had put on the internet his family would be in trouble too.
The Tribunal noted that it appeared that the police were very angry with him and the first named applicant agreed. The Tribunal noted that he was seen as someone who opposed the government and again, he agreed. The Tribunal noted that his claims were inconsistent with the country information from the Department of Foreign Affairs and Trade (DFAT) paramilitary, governmental and intelligence agencies.
China’s Minister of Finance reported that 6.1 per cent of national government in 2017 (approximately AUD255 billion) was appropriate to domestic security...
According to research compiled by Comparitech and HIS Markit in 2023, China’s cities were under the heaviest CCTV surveillance in the world. 2023 estimates indicated there were at least 600 million surveillance cameras operating in China, or almost one camera for every two people. In China’s more developed cities, monitoring and surveillance capabilities were both pervasive and advanced. Facial recognition and other identity monitoring technologies were widely used in surveillance, including to track the movements of those on a vast array of ‘blacklists’, like Uyghurs and Tibetans, former drug users, individuals with mental health issues and known activities. In-country sources told DFAT in 2023 that CCTV surveillance had become so pervasive, with such a high level of coverage, that an individual’s movements could be tracked in real time.[1]
[1] Australian Government, Department of Foreign Affairs and Trade, DFAT Country Information Report People’s Republic of China, 27 December 2024, DFAT country information report People’s Republic Of China. See paras 2.65 and 2.66.
The Tribunal also observed that the applicant claimed to have entered China and left the country to Australia on several occasions on his subclass 188 visa, after the incident with
[Mr A] and the authorities but the DFAT report indicated that someone with a profile considered to have an imputed political opinion against the government, were not likely to escape the government’s attention on departure and entry into China.
Exit and entry was strictly regulated in China in 2023, with the Government of China closely monitoring those passing through its air, land and seaports. AI, facial recognition software and biometric databases were employed to confirm passenger identities and check identity documents for fraud. According to a 2023 report by Safeguard Defenders, the numbers of exit controls, and subsequent prevention of leaving China, had expanded significantly under President XI.
In-country sources told DFAT in 2023 that national security and outstanding debts were the primary reasons people were refused permission to leave the country. Individuals may only discover that they were on an ‘exit ban’ list at the airport when they attempted to travel. Once an exit ban was put in place, it often remained until it was officially removed, especially in cases where an individual was connected to an ongoing investigation. However, a person’s exit ban may undergo review after a number of months. The way that the exit bank list worked was not clear in 2023 and bans often appeared arbitrary.
As at 1 July 2023, the exit ban had been decentralised to the provinces, with national oversight removed to increase the use and effectiveness of the system. In-country sources told DFAT in 2023 that the grounds for implementing an exit ban were also being expanded, making the system more all-encompassing.
If a person is on an exit control list it is very unlikely, probably almost impossible, that they would be able to leave China. In 2023, DFAT had not seen evidence of compassionate exemptions being granted to individuals for family or health reasons…
Those suspected of a crime, persons of interest on ‘national security grounds’ activists and human rights defenders may be refused a passport upon application…[2]
[2] Australian Government, Department of Foreign Affairs and Trade, DFAT Country Information Report People’s Republic of China, 27 December 2024, DFAT country information report People’s Republic Of China. See paras 5.32, 5.33, 5.34, 5.35 and 5.36.
The Tribunal stated that given the applicant had posted on the internet and had given the authorities a bad reputation, he would not have been able to come and go from China so many times given the country information. The applicant stated that what he posted on the internet was not against the government – it was the incident that happened. He was not a wanted person – he did not kill anyone – he just posted the sequence of events. The Tribunal asked the applicant to explain what sequence of events he put down and he replied how he was treated by [Mr A] and how he was detained in the police department, and that he falsely wrote that he had made a false allegation. The Tribunal asked if what he had written was of no consequence, he could not return to China now. He stated that if he returned and was still under the administration of that official, he could ask someone to arrest or attack him. The first named applicant stated that he knew of cases in China where if people were not on good terms with government officials, they would be arrested for any reason, and their possessions would be confiscated.
The Tribunal then spoke to the second named applicant. Asked why she did not wish to return to China the second named applicant stated because of what had happened between her husband and an official. It was a serious matter. If they tried to operate a business, they would not be able to do so. The Tribunal observed that perhaps they were attempting to stay in Australia with their son. She stated this was the second reason. The Tribunal noted there was no supporting information or evidence to support her husband’s claims. The second named applicant stated that when the events happened, they did have the documents – but when they decided to leave China on a subclass 188 visa they did not want to enter as protected persons or asylum seekers. Asked why not, the second named applicant stated because they did not want to be a burden on the government and wanted to fend for themselves, so the government did not have to look after their medical issues, for example.
The Tribunal noted that if they feared for their lives, they would have lodged their protection visa as soon as they could. She stated that when they first visited Australia, they liked the country. They then had a subclass 188 visa and wanted to stay here. Initially, the officials asked for gifts and later they asked for huge amounts and her husband was being hit and attacked. Asked why they could not go elsewhere to start a business and not necessarily Guangzhou, she stated that the [product 1] business was confined to Guangzhou and other areas did not have that type of business for them.
The Tribunal asked what happened to their business. The second named applicant stated that they first started with the elder brother joining the business. He advanced funds and she was the one who was involved in retailing. Her husband looked after the business overall. The Tribunal asked when the business was closed. The second named applicant stated she and her son were in Australia and the matter escalated. Her husband was handling the taxation for the business so they thought her brother-in-law could not handle it. The Tribunal noted that her husband had stated that the officials suspended the business due to animosity with [Mr A]. She stated people went to stop the storeroom. Because of this bar they could not supply goods to customers.
Asked what she thought would happen to her if she returned to China, the second named applicant stated what had happened was very, very serious and she could not imagine what would happen to them. Her husband was told no matter where he went, including to complain to Beijing, nothing would eventuate.
The Tribunal asked the second named applicant whether she knew what had happened exactly to her husband in China. She stated they were only told the next day because her husband did not want to scare their son. Asked what had happened she replied he was detained for two days so of course she was very worried. The Tribunal noted that her husband had returned to China several times and that if the authorities wanted to find him the authorities could easily do so. She stated that was right – he travelled every three months but only went to the regional area and stayed with his parents. Then she stated that he lived with his friend. The Tribunal noted that the first named applicant had not revealed that he had lived with a friend. The Tribunal asked why they could not go to a regional area where [Mr A name variants] would not have jurisdiction over them. She stated that living regionally was ok, but you had to earn money. The Tribunal asked whether they could not set up another business in a regional area. She stated that they could only have a [product 1] business in Guangzhou. The Tribunal noted the applicants had worked in the restaurant business in Australia so they could open another business in China away from Guangzhou.
The second named applicant stated that at their stage of life setting up a business in China was not so easy and they had to stay around the Guangzhou area. At their age they could not do anything else. The first named applicant stated they had to do what they knew. To start a business, you had to invest in it and had to know what you were doing. The Tribunal noted that the applicants had found work in the restaurant business in Australia. The first named applicant stated It was different being an employee - you were told what to do but if you ran a business you had to know what you were doing. The first named applicant stated that at his age no one would employee him. Asked if they had any capital at all the second named applicant stated they had an apartment here in Australia. If they wanted to do anything in China, they would need to sell the property. It was worth around a million dollars AUD. Their son’s schooling here was very expensive.
The second named applicant stated that they did not have evidence of the information posted on the internet because when they went to see her husband’s father, they knew they had to delete the material. The Tribunal asked why their migration agent had not made it clear that they should focus on a protection visa rather than any other visas. She responded the event had not happened on the subclass 188 visa, and they wanted to come as normal migrants.
The first named applicant stated that they loved this country when they first came here, and when they returned to China, they set their goal on migrating to Australia. Because they had set their minds to migrating to Australia the wife and his son entered Australia on a student visa. They had fulfilled the requirements of the subclass 188 so they gave all their information. They were quite secure, so they did not keep any records.
The second named applicant stated they had had a bad experience in [City 1] with a business that did not work out because of the previous owner. They had invested a lot of money. The Tribunal asked why the applicants had not gone to Consumer affairs to complain and she responded they did not know who to contact. They then had to look after another business in the year that remained, and they were very anxious. That brought them to the beginning of 2020 and COVID struck, and they had no business to do. They had not considered they would apply for a protection visa. The Australian dream of settling here however, had vanished as they were faced with this predicament.
The first named applicant stated that he wanted his wife and son to at least remain here. He would be happy to leave even if he had to divorce his wife. He would make the sacrifice and face the consequences if it meant they at least could stay here. The second named applicant stated her husband would experience serious harm because the official would retaliate. She knew that he got someone to assault him previously.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (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 in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.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.
REASONS AND FINDINGS
The issue in this case is whether the applicants meet the criteria for refugees under the Migration Act or alternatively, they meet the criteria for complementary protection visas. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Do the applicants satisfy the refugee criterion for protection?
As a preliminary note, the Tribunal observes that the name of the applicant’s claimed persecutor, [Mr A], [or Mr A name variants] appeared to be spelt differently at hearing. In the application it was written that [Mr A] was their persecutor. The Tribunal does not place any adverse weight on this variation of the name as the first named applicant attempted to spell the name in English at hearing, which is not his first language.
In assessing credibility, the Tribunal must be mindful that if events have occurred in the remote past, it is not reasonable to accept an applicant to have perfect recall about every detail that occurred. In this case, the applicant claims he was beaten and imprisoned by the police in 2016, meaning 9 years have now elapsed and the Tribunal cannot expect that the applicant would be able to provide a detailed account of what occurred to him then. On the other hand, the Tribunal would expect an applicant to provide enough detail as to demonstrate a realistic context around events, such as to convince the Tribunal that certain key occurrences actually happened.
In this case the Tribunal has serious reservations about the lack of detail submitted to the Tribunal over what is now a significant period. The Department had made it clear to the applicants as far back as 21 December 2022, that their claims were not set in date and location and encouraged them on several occasions to flesh out the claims and to provide credible information and documentation to substantiate what at that time appeared to be only assertions by the applicants. Now in July 2025, this absence of detail and convincing explanations for the lack of detail, continues to be a problem in the Tribunal’s assessment of the applicants’ claims.
Similarly, an applicant does not need to corroborate their claims to be believed, particularly if all other indicators point to the applicant being a credible witness and there is at least some information that would indicate that the claimed events have occurred. It is also the case that if it would be reasonably expected that an applicant could provide evidence where there might have been a significant paper trail, that such evidence would be submitted to the Department and the Tribunal to support their case.
As delineated above, the Department was precise in its request for further information from the applicants, listing the kind of information that would assist them persuade the decision-maker there was a real chance they would face serious harm on return to China now or in the reasonably foreseeable future, or that in the alternative, there was a real risk they would suffer significant harm. The Tribunal found that at the time of writing its decision, this deficit of documentation and information continues to prevail. While it is not appropriate to impose unreasonable expectations in regard to the information submitted to a decision-maker, it is reasonable for the applicant to be able to make out their case with as much detail and supporting material as possible.
The applicants are asking the Tribunal to accept that they had a [product 1] store/warehouse and that they on-sold the [product 1] to businesses that made [product 2]. They claim the first named visa applicant has been harassed by a local [Position 1] of the Industrial and Commercial Bureau of [District 1], (whom the Tribunal will refer to from here in as
[Mr A]), because the first named applicant was forced to give gifts to [Mr A] as a bribe to enable the applicants’ business to run. Further it is claimed that in refusing to do so, the first named applicant was beaten, taken into detention and forced to sign a false declaration to state that he had invented the allegations against [Mr A].
In essence, the applicants’ claim to fear serious harm from the authorities, because they will have been seen to have opposed the authorities, and as such, claim to have an imputed or actual political opinion of being inimical to the government.
The applicant has not, as a first premise even established that he was a General Manager of [Business 1] , and the applicants have not been able to provide a reasonable explanation as to why this is the case. The Tribunal has not sighted the applicants’ application for a subclass 188 visa and the documentation provided to support their claim they had the means to establish a business in Australia, nor has it sighted the evidence they provided the Department to demonstrate their sources of income. The subclass 188 visa from 1 July 2015, required applicants to invest in venture capital and growth equity funds (at least $500,000 AUD), or to invest at least 1.5 million in eligible ‘emerging companies’, or to invest the balance of the minimum $5 million through managed investment schemes or listed investment companies.[3]
[3] ‘OnePath and OptimMix Wholesale Investment Trusts – Significant Investor Scheme (Subclass 188), September 2016, onepathsuperinvest.com.au/_doc/significant-investor-visa-subclass-188/.
The Tribunal also notes that the explanatory statement for the Migration Amendment(Investor Visas) Regulation 2015, states:
The amendment will enable primary visa holders with well-established businesses in their home country to maintain their businesses offshore and have their spouse or de facto run their Australian business, thereby increasing the flexibility and attractiveness of the Business Innovation and Investment Programme (BIIP).[4]
[4] MIGRATION AMENDMENT (INVESTOR VISAS) REGULATION 2015 (SLI NO 102 OF 2015) EXPLANATORY STATEMENT.
The Tribunal understands the subclass 188 visa was not permanent but provisional although there were some pathways to permanency about which the Tribunal does not have specific information. At hearing the applicants argued that at that time there were two streams of the subclass 188 visa – one in which a significant investment was required in Australia and the other which only required an investment of 1 million AUD, and this latter stream was the one under which they came to Australia. The Tribunal has limited information before it about the specific details of the terms and conditions of the applicants’ subclass 188 visas but is prepared to accept that the applicants invested 1 million AUD to establish what was an ongoing and viable business in Australia.
The applicants repeatedly claimed at hearing that they never thought they would apply for protection hence they never kept the paperwork regarding the events that are claimed to have occurred in China. The Tribunal does not accept, however, that this is the reason for not providing any information concerning the applicants’ paperwork regarding their business offshore, and finds instead that the reason for this non-disclosure is that such information would undermine their claims that any business they held in China was shut down by the authorities as revenge for the applicant not providing gifts, and in particular a gift of [amount] RMB for [Mr A’s] daughter’s wedding in June 2016.
It seems improbable if not far-fetched that the applicants would have been granted a subclass 188 visa if they could not demonstrate that they had a viable business offshore. The applicants are claiming that they had already obtained their subclass 188 visa when the difficulties with [Mr A] arose and therefore, they felt secure. The first named visa applicant claims that he was required to finalise the closing of his business in China, Guangzhou, and that is why he only joined his wife and son in Australia later.
As a first principal the Tribunal notes that the applicants could have sought information from the equivalent of their Chamber of Commerce regarding their business in China, when it was registered, for how long and who the General Manager was. The first named applicant could also have had access to taxation information, for example.
Additionally, the Tribunal is not convinced that had the applicant been experiencing financial struggles of the sort claimed because the authorities had shut down his business (and that the business was struggling in any event prior to [Mr A’s] intimidation, as claimed by the first named applicant), this matter would not have come to the attention of the Department even after the subclass visa was granted. The fact is that the applicants, despite all these claimed difficulties with the authorities, had managed to invest 1 million AUD in Australia, leaving the Tribunal to question whether the applicants ever had any business in China shut down pending investigations by the authorities, [Mr A], or anyone else, and the Tribunal rejects this to be the case.
On the limited information before it the Tribunal accepts that:
The applicants had a profitable business in China (the nature of which is not clear) which led to the applicants being granted a subclass 188 visa to invest 1 million AUD into an Australian business.
Documentation from the regulatory body regarding the operation of the business and the applicants’ role in the business in China would demonstrate such critical facts as when the applicants might have taken over a business and more importantly, when any such licence to operate had ceased, to support their claims that indeed the business was wrapped up by the authorities at any particular point in time. Instead, the Tribunal finds that this information has not been forthcoming because it would undermine the applicants’ claims that they were ever fleeing persecution in China by the authorities or other non-state actors, because the Tribunal does not accept that the applicants’ business was of any adverse interest to the authorities at all. Indeed, it would appear that the authorities facilitated the applicant to migrate to Australia on a temporary visa which may have held the potential for permanency. They were also permitted to leave the country without difficulty which is not consistent with the country information which shows that persons of interest would not be permitted to leave the country so easily
The applicants have stated that they did not hold on to evidence that [Mr A] ever existed because they were secure from the perpetrators of serious harm and the authorities in China because they held subclass 188 visas and never wanted to seek asylum in Australia so as not to be a burden on the government. Regardless, the Tribunal finds that had [Mr A] existed, an organisation chart, or some other governmental annual report, given he was second in command at the local Industrial and Commercial Bureau of [District 1], would exist. This would assist to establish that at the time the first named applicant claims he was being harassed by such a critical figure, [Mr A] was operating in the area, and even if such probative evidence was not available to the applicant, there appears to be no reason why someone other than the applicants could not confirm, whether family, coworkers or friends, that [Mr A] had caused the business to fold.
The Tribunal would have expected that had the first named applicant had to legitimately report to [Mr A] regarding his financial and business dealings that such documentary evidence would also exist.
At hearing the first named applicant provided few details about the characteristics of
[Mr A] such that the Tribunal does not accept that he ever existed or ever harassed the first named applicant which led to the applicants filing a protection visa application. The first named visa applicant appeared to indicate that [Mr A] had a mistress, even though he had a family and was not of good character and that they had a “personality clash” without explaining what that personality clash might have involved. Other than these basic details, the first named applicant was able to provide little detail about how he knew such personal information about the mistress, for example.
Moreover, the first named applicant’s claims that [Mr A] elicited gifts and then more audaciously [amount] RMB (roughly $[amount] AUD in today’s currency) for his daughter’s wedding. The first named applicant could not, however, provide any context for when and how [Mr A] might have approached the first named applicant to extract such an amount from him. Nor was he able to provide a realistic account of how [Mr A] went about asking for gifts, stating only that it was inferred that they had to give him gifts and place them in a location where [Mr A] would know “where to find them”. The level of generality about such key events leads the Tribunal to find that they never occurred and that:
·[Mr A] never existed;
·The first named applicant was never solicited for gifts of any kind, and not for a gift of [amount] RMB, by [Mr A], the Chinese authorities or anyone else; and
·The applicants’ business was ever suspended from trading by such a [Mr A] or anyone else in the government or outside it.
It follows that the Tribunal also rejects that a person called [Mr A] who was the Industrial and Commercial Bureau [Position 1] made false allegations that some of the applicants’ customers complained that the [product 1] he sold was shoddy. These events were not set in time and the Tribunal questions why the first named applicant did not attempt to find out who these customers were and whether they had deliberately collaborated with [Mr A] or had been coerced to make such complaints, or indeed whether such complaints ever happened at all. The vague nature of the first named applicant’s claims around these events leads the Tribunal to also reject that any false allegations about shoddy workmanship were made against the applicants.
The same level of generality accompanied the first named applicant’s claims about [portions] of [product 1] being taken away for an investigation by the authorities and that he was simply told to wait for a reply. The applicant claims that this event led to his business experiencing a decline because he could not fulfil customers’ orders. The Tribunal would have thought that the applicant could have provided business data showing the decline which it is claimed started when the investigation into his business started and it is claimed that the business was barred from trading.
The Tribunal does not accept that the applicants’ business was ever prevented from trading in China. Had the authorities issued such an edict they would have ensured it was in writing to the applicant and that the relevant business council had provided information to his potential clients about the fact that the business had ceased to trade for a period, or indefinitely, pending investigations.
Nor did the first named applicant provide realistic detail about the authorities taking control of his premises and whether, and how, they might have secured, it for example. The Tribunal would have expected that had the applicant had to negotiate to extract himself from a lease as claimed, there would be evidence of such negotiations and when precisely the applicants relinquished their lease.
The Tribunal does not accept that the Chinese authorities would not have legitimised such closure by making it formal and ensuring that the formal steps required in asking a business to cease trading would not have been followed with appropriate paperwork. For all these reasons the Tribunal does not accept that the applicants’ business was ever banned from trading in China due to [Mr A], the Chinese authorities or anyone else. Instead, the Tribunal finds that any closure of the business occurred by the applicants’ themselves because they were intent on migrating to Australia permanently and considered that in having obtained a subclass 188 visa, they were secure in their future in Australia.
The applicants’ claims are also weakened because the first named applicant claimed they were “peasants” and had to scrape and bend to the wishes of [Mr A]. The Tribunal does not accept that someone with a holding of 1 million dollars AUD in China could be considered a peasant, or that the applicants saw themselves as peasants, and the Tribunal rejects this is the case.
Consequently, the Tribunal does not accept that the first named visa applicant was ever beaten by ruffians sent by [Mr A] or that he was warned not to complain to the authorities about what had happened to him. These critical details were also not set in any context and the Tribunal rejects they occurred. The Tribunal does not accept that the first named visa applicant was ever hit all over his body by several strong men who caused him physical harm. The second named applicant stated that initially they did have a report from the hospital where the first named visa applicant was treated but they threw out such material because they did not ever intend to apply for a protection visa. The applicants after the hearing did provide some medical reports alleged to have been issued on [a day in] July 2017. The reports state that the applicant attended an emergency department being brought there by relatives, and that the first named applicant had been assaulted three hours ago. The Tribunal has given these reports consideration but given the limited information provided about other key events in the applicants’ narrative, the Tribunal is not satisfied about the provenance of such records, particularly as the applicants have not previously provided these and would have had an occasion to obtain them earlier on their previous travels to China. At the highest the Tribunal could accept the applicant was assaulted on [that day in] July 2017, but the reports are silent on how the assault occurred and who had been involved, and for what reason.

(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.
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36     Protection visas – criteria provided for by this Act
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(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.
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