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File number: 1512555

Tribunal: Member Paul Millar

The applicant was refused a protection visa by a delegate of the Minister for Immigration and Border Protection. On 28 November 2017 the Administrative Appeals Tribunal affirmed the decision.

Section 36 of the Migration Act 1958 sets out the criteria for gaining a protection visa which broadly requires the applicant to be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds. This arises when a person is found to have a ‘well-founded fear of persecution’ or there is a ‘real risk of significant harm,’ respectively.

The applicant claimed protection on the ground that a drug trafficker and his relative, who is a powerful public official, would harm him because of his involvement in a law enforcement operation in China during 1997. The court where the applicant worked as a court police officer was asked for assistance in the operation, during which the applicant shot and wounded the drug trafficker.

The applicant recounted to the Tribunal the events of the night and what followed. The Tribunal also listened to an audio recording of the applicant’s interview with the delegate and also viewed a copy of the protection visa application. A number of inconsistencies were found in the applicant’s recounting of events in the three different instances.

The applicant claimed the contents of his protection visa application form were an English translation of content he wrote in Chinese. He said that any inconsistency between the two accounts was due to an error in the translation of that content. The applicant also claimed that the questions put to him by the Tribunal were not put to him by the delegate and he did not know how to express himself or answer in a detailed way if not asked for detail.

The Tribunal found the inconsistencies too substantial to overcome. The differences in the accounts provided by the applicant were too significant to be an error in translation. After reviewing the interview, the Tribunal stated that the delegate questioned the applicant in a manner that gave him ample opportunity to state his claims.

The Tribunal also took into consideration that the events in question occurred a number of years ago. Even so, the Tribunal considered that the applicant could reasonably be expected to give a consistent account regardless of the lapse in time given the importance of the events in question to his protection claims.

Due to the inconsistencies, the Tribunal found the applicant was not a witness of truth and the account of events on which his protection claims were based were false. Due to the lack of credible evidence it found that there was not a real chance that the applicant would suffer serious harm in China and he did not hold a well-founded fear of persecution. The Tribunal also found that there was no real risk that he would suffer significant harm.

Read the full written decision on Austlii.