CAT/C/62/D/669/2015
to obtain custody of his daughter in order to bring her to Australia was incompatible with
his claims for protection and, in particular, his alleged persecution by the Government of
China. Furthermore, the complainant’s repeated statements that he would not have applied
for a protection visa if his tourist visa had not been cancelled was inconsistent with his
protection claims related to the event in which he was allegedly involved in China. The
Tribunal noted that, if the complainant had intended to seek protection, he would not have
left Australia on 24 January 2011 to travel to Fiji for three days before returning, because
his multiple-entry tourist visa only allowed him to stay for three months at any one time.
The Tribunal concluded that the complainant’s acts showed that he did not fear harm if
returned to China and was not in need of international protection. The Tribunal further
rejected the complainant’s claim that the publication of certain personal details in a
judgment meant that the Government of China would be aware of the fact that the
complainant had lodged an application for a protection visa and would consider him to be a
Taiwanese spy. The Tribunal based that conclusion on the complainant’s overall lack of
credibility.
2.16 Between December 2012 and mid-2013, the complainant allegedly received a
number of calls on his mobile phone from a Chinese woman named K.Z., who was both a
senior officer in the Ministry of State Security of China and a director of a German beer
company, inviting the complainant to establish a beer import business with her, reselling
the beer to Chinese retailers. The complainant declined that offer.
2.17 On 9 June 2013, the complainant’s daughter was kidnapped for the second time. The
complainant searched for her through the Chinese equivalent of Twitter without any
success. He alleges that his posts were repeatedly deleted by the Government of China but
that he continued to post new information and had thousands of followers. The Australian
Red Cross unsuccessfully offered to search for his daughter. When K.Z. learned that the
Red Cross had been making inquiries, she became very angry and told him that, if the Red
Cross became involved, she could no longer guarantee his safety and that it was completely
unacceptable for the Red Cross to attempt to search for the complainant’s daughter in China.
2.18 On 16 June 2013, a Chinese man from Melbourne named “R” allegedly visited the
complainant and offered him $A 500,000 in cash to go into business with him. The
complainant refused and R later contacted the complainant by phone to repeat the offer but
to no avail.
2.19 On 19 July 2013, the complainant received a text message from a Chinese national
allegedly working for the Government of China, who warned the complainant that he
needed to keep quiet in Australia. The complainant suspects that his psychologist leaked the
complainant’s phone number to the Government of China.
2.20 On 10 March 2014, the Federal Court of Australia dismissed the complainant’s
application for judicial review of the second Refugee Review Tribunal decision, finding no
legal error. On 27 June 2014, the complainant’s appeal against the Federal Court’s decision
was also dismissed. Lastly, on 5 March 2015, the complainant was denied special leave to
appeal to the High Court of Australia.
2.21 The complainant filed two requests for ministerial intervention under sections 48B
and 417 of the Migration Act 1958, the latter section providing for intervention where the
Minister for Immigration and Border Protection believes it to be in the public interest.
Those requests were dismissed on 21 August 2014 and 5 November 2015 respectively.
The complaint
3.1
The complainant claims that his forced return to China would violate his rights
under article 3 of the Convention. He submits that, by publishing false information
regarding his passport, the Federal Magistrates Court of Australia placed him at serious risk
of being considered a Taiwanese agent and, therefore, of being charged with treason,
imprisonment and execution if returned to China. Although the Court reissued an amended
judgment, the incorrect information was in circulation for three months and, consequently,
it was available to the Government of China.
4