1410871 (Refugee)

[2016] AATA 3217

1410871 (Refugee) [2016] AATA 3217 (29 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1410871

COUNTRY OF REFERENCE:                  China

MEMBER:Katie Malyon

DATE:29 January 2016

PLACE OF DECISION:  Sydney

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

Statement made on 29 January 2016 at 6:27pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

   Background

2. [The applicant] is a [age] year old from Fujian Province in China who made his current application for a Protection visa [in] March 2014.  It is his second such application.  [The applicant] arrived in Australia [in] September 2004 holding a [temporary visa].  He first applied for a Protection visa [in] October 2004 on the basis being a Falun Gong practitioner.  His first application for protection was refused by the Department of Immigration and Border Protection (the Department) [in] December 2004.  A differently constituted Tribunal affirmed the Department’s decision on 15 March 2005.  [The applicant’s] application for judicial review to the Federal Magistrates Court resulted in a remittal back to the Tribunal: that differently constituted Tribunal then affirmed the decision of the Department on 25 September 2006.  [The applicant’s] second application for judicial review to the Federal Magistrates Court was dismissed [in] January 2008 and a subsequent appeal to the Full Federal Court was dismissed [in] May 2008.  A later application for Ministerial Intervention was also refused. 

3. Thereafter, [the applicant] remained in Australia as an unlawful non-citizen for over 5 years until he lodged his current application for protection.  In brief, the current application for protection is based on [the applicant’s] claim in relation to the authorities and developers taking his land without paying him adequate compensation.  Lodgement of the current Protection visa application was facilitated following the 3 July 2013 decision of the full Federal Court in SZGIZ v Minister for Immigration and Citizenship (SZGIZ)[1] discussed below.

   [1] [2013] FCAFC 71

4. [The applicant] applied to the Tribunal for review of the delegate’s decision to refuse his current application for protection on 18 June 2014.  He appeared before the Tribunal to give oral evidence and present arguments at a hearing on 10 April 2015.  The Tribunal’s hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.   [The applicant’s] [representative] did not attend the hearing with his client. 

5. The issues in this case are as follows:

   ·are [the applicant’s] claims credible?

   ·if so, are there substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to China, there is a real risk that he will suffer significant harm?

   RELEVANT LAW AND DEFINITIONS

6. The criteria for a Protection visa are set out in s.36 of the Act and Schedule 2 of the Migration Regulations 1994 (the Regulations).  An applicant for the visa must meet one of the alternative criteria set out in s.36(2)(a), (aa), (b) or (c) of the Act. 

7. Relevantly for this review, s.48A of the Act imposes a bar on a non-citizen making a further application for a Protection visa while in the migration zone in circumstances where the non-citizen has already made an application for a Protection visa which has been refused.  The full Federal Court in SZGIZ held that the operation of s.48A of the Act, as it stood at the time of this Protection visa application, is confined to the making of a further application for protection which duplicates an earlier unsuccessful application for a Protection visa, in the sense that both applications raise the same essential criterion for the grant of a Protection visa.

8. Applying the reasoning in SZGIZ, the Tribunal finds that it does not have power to consider the criterion in s.36(2)(a) of the Act that sets out Australia’s protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (Refugees Convention) because [the applicant’s] first Protection visa application was refused by the Department on the basis of this criterion [in] December 2004.  Instead, the Tribunal has proceeded on the basis that it can only consider [the applicant’s] claims under the complementary protection provisions in s.36(2)(aa) of the Act.  These requirements are outlined below.

   Complementary protection criterion

9. A person may meet the criteria for the grant of a Protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm (the complementary protection criterion): s.36(2)(aa) of the Act.

10. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A) of the Act.  A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.   The terms ‘cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’ and ‘torture’ are further defined in s.5(1) of the Act and extracted in the Annexure to this decision.

11. Section 36(2)(aa) of the Act refers to a ‘real risk’ of an applicant suffering significant harm.  The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[2]  Relevant in this regard, the High Court has stated that a person can have a ‘well‑founded fear’ of persecution even though the possibility of the persecution occurring is well below 50%.  Indeed, the High Court has prescribed a low threshold for determining whether an applicant’s fear is “well-founded” and it can be reached even if the event feared is “unlikely to occur” and has only a “10 per cent chance” of occurring: however, the chance of it occurring must be more than “far-fetched” or “remote” and the evidence must indicate “a real ground for believing that the applicant … is at risk of persecution”.[3]  A fear of persecution “is not well-founded if it is merely assumed or if it is mere speculation”.[4]

    [2] MIAC v SZQRB (2013) 210 FCR 508

    [3] Chan v MIEA (1989) 169 CLR 379 at 429 per McHugh J

    [4] MIEA v Guo (1997) 191 CLR 559 at 572

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

    Mandatory considerations

13. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department’s PAM3 Protection visas - Complementary Protection Guidelines as well as any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.  The Tribunal is not precluded from considering other relevant information.

    Credibility

14. The United Nations Human Rights Commission has recognised the difficulties of proof faced by applicants for refugee status.[5]  In particular, there may be claims that are not susceptible of proof.  Moreover, the courts have accepted that in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for.[6] However, the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the fear asserted or that it is ‘well-founded’, or that it is for the reason claimed.  It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[7]  It is the applicant’s responsibility to specify all particulars of his claims and to provide the Tribunal with sufficient evidence to establish his claims.[8]  

    [5] UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relation to the Status of Refugees 1992 at paras [196 - 197]

    [6] Randhawa v MILGEA (1994) 52 FCR 437, Beaumont J at [21]

    [7] MIEA v Guo & Anor (1997) 191 CLR 559 at 596

    [8] s.5AAA(1) of the Act

15. In this regard, the Tribunal is not required to accept uncritically any or all the claims made by an applicant.[9]  Nor is the Tribunal required to make the applicant's case for him.[10]  In addition, the Tribunal is not obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality.[11]  It is legitimate for the Tribunal to take into account any delay in the lodging of a Protection visa application by an applicant in assessing the genuineness, or at least the depth, of an applicant’s claim to fear persecution.[12]

    CONSIDERATION OF CLAIMS AND EVIDENCE

    [9] Randhawa  v MILGEA (1994) 52 FCR 437 at 451

    [10] s.5AAA(4) of the Act.  See also Prasad v MIEA (1985) 6 FCR 155 at 169 –170; Luu & Anor v Renevier (1989) 91 ALR 39 at 45

    [11] Kopalapillai v MIMA (1998) 86 FCR 547

    [12] Selvadurai v MIEA & Anor (1994) 34 ALD 347, Herrey J at [11]

    Material before the Tribunal

16. The Tribunal has had regard to the following material:

    ·     The Protection visa application submitted to the Department [in] March 2014 including a recording of the delegate’s interview with [the applicant] [in] May 2014.

    ·     The application for review submitted to the Tribunal on 18 June 2014.

    ·     Oral evidence of [the applicant] given at the Tribunal’s hearing on 10 April 2015.

    ·     The Department’s PAM3 Protection visas - Complementary Protection Guidelines.

    ·     Country information including DFAT country information reports.

17. A copy of the delegate’s decision dated [in] May 2014 refusing [the applicant’s] current application for protection was provided to the Tribunal on 18 June 2014 together with [the applicant’s] application for review (the Delegate’s Letter).  In addition to setting out the reasons for refusing [the applicant’s] application for protection the Delegate’s Letter contains a comprehensive outline of his evidence to the delegate at interview. 

    Nationality of the applicant

18. The Tribunal finds that [the applicant] is a national of China.  He travelled to Australia as the holder of a passport issued by the authorities of China, a copy of which he provided to the Department with his Protection visa application.  He made no claim to be a national of any other country.  The Tribunal accepts that his claims should be assessed against China as the “receiving country” for the purposes of the complementary protection obligations in s.36(2)(aa) of the Act.  The Tribunal is satisfied that [the applicant] does not have a right to enter and reside in any other country and, therefore, he is not excluded from Australia’s protection obligations under s.36(3) of the Act.

    The applicant’s claims for protection

19. [The applicant] claims in his Form 866C Application for an applicant who wishes to submit their own claims for protection that:

    ·     He has been detained twice and persecuted by the authorities.

    ·     He has been accused of collecting protection monies in the course of raising funds

    ·     He fears being detained and persecuted again as well as being unable to claim his rights to fair compensation if he is removed to China.

    ·     The authorities and developers have taken our land without fair compensation.  We have sought compensation from the authorities and developers.  In retaliation, the authorities accused them of fund raising upon (sic) the Church and call of (sic) extorting protection fees and threw them into detention.  After his family paid money to corrupt officials, he was released on bail for medical treatment. 

    ·     Thereafter, he was locked up at different location (sic) again as he was accused of attempting in (sic) travel to [Country 1] without seeking grant of the Chinese authorities and then released after paying the substantial fine.  As the charges on extorting protection fee have not been resolved it appears the authorities will take action against him if he is removed to China.

    ·     If he persists in seeking fair compensation, the authorities will torment and persecute him.

20. As noted in the Delegate’s Letter, [the applicant] clarified that the claim in relation to extorting money related to organised fundraising for the church.  He said that he and other former landowners asked the owners who had purchased new houses on the development for donations for the church.

    Hearing

21. [The applicant] told the Tribunal that he told his representative in Mandarin what to write in his application, his representative then completed the application form in English and read back his claims to him before he signed the application.

    Are [the applicant’s] claims credible?

22. During the course of the hearing, it became evident that there were serious concerns about [the applicant’s] credibility and whether he was telling the truth in relation to significant aspects of his claims.  By way of summary, the Tribunal does not find [the applicant] to be a credible witness and is not satisfied that he has told the truth in relation to fundamental aspects of his claims.  Overall, the Tribunal did not find [the applicant’s] evidence to the Tribunal to be plausible, persuasive or consistent.  The Tribunal’s concerns are discussed below. 

23. First, the Tribunal has concerns with [the applicant’s] unreliable evidence to the Tribunal, his failure to respond to issues identified in the delegate’s interview with [the applicant] and set out in the Delegate’s Letter, or to have any comment about the delegate’s reasons for refusing his application.  [The applicant] was asked whether he had read the Delegate’s Letter, had it explained to him or had it translated.  He told the Tribunal that his representative did not read the letter to him but, rather, sent him ‘a text message’ to say that the application had been refused because the delegate ‘did not believe’ some of his issues.  [The applicant] told the Tribunal he only obtained ‘a copy of 3 pages of the letter’ on Sunday 4 April 2015, that is, 6 days prior to the hearing.  The Tribunal notes the decision record is 13 pages in length.  [The applicant] said he did not ask anyone to read the letter to him or otherwise explain in detail the issues identified in the letter as the reasons for the refusal.

24. [The applicant] agreed with the Tribunal that his application for protection was ‘important’ as it determines his right to remain in Australia.  The Tribunal put to [the applicant] that if he was genuine about his claims he would have had the Delegate’s Letter translated and come to the hearing prepared with evidence to address concerns raised in that letter.  It observed the fact that he did not do this raised doubts about the genuineness of his claimed fear of detention and persecution.  [The applicant] replied: ‘I really don’t know anything about the legal procedures’.  The Tribunal reminded him that he had already made one application for protection, had appeared before the Tribunal differently constituted on two occasions in relation to that first Protection visa application, had sought judicial review on two occasions in the Federal Magistrate’s Court and a further review in the full Federal Court as well as applying for Ministerial Intervention twice.  The Tribunal put to [the applicant] that, in these circumstances, it did not accept that he did not know the legal procedures about applying for protection in Australia, quite the reverse.  [The applicant] blamed his representative for failing to follow through with a promised telephone call to discuss his application before the hearing, which the Tribunal notes was held almost one year after the Department refused [the applicant’s] second application for protection.  It is the Tribunal’s opinion that he had ample time in which to marshal his case for the Tribunal’s consideration having regard to the issues identified in the Delegate’s Letter refusing his current application for protection. 

25. The Tribunal reiterated that, given his familiarity with the processes involved, in its opinion [the applicant] should have realised that the Department would issue a letter with detailed reasons for its refusal.  It observed the fact that he did not obtain a full copy of the Delegate’s Letter raises questions for the Tribunal about the genuineness of his claimed fear of detention and persecution.  [The applicant] then changed his evidence and said that ‘even though I did not get the letter translated, I had a read of it and understood the reasons. I thought how to explain all the issues’ (to the Tribunal).  Reminded that the onus rets with him to provide sufficient evidence to satisfy the Tribunal that he engages Australia’s protection obligations [the applicant] said that he had ‘been working on the reasons’ identified in the Delegate’s Letter and had ‘been coming up with perfect explanations because I anticipated it would be the same issues for the Tribunal as well’.  He said he thought that ‘by attending the Tribunal’s hearing and answering questions I could just tell my story because I know my story’.  The Tribunal reminded [the applicant] that it did not want a fictional story, it wanted the truth: further, the truth does not change and that, mindful the onus is on him, it was expecting some evidence to be provided be satisfied of his claims of fearing detention and persecution.  [The applicant] said he had no evidence for the Tribunal.  Then, inconsistent with his advice to the Tribunal that he had read the letter he said ‘I didn’t read the letter, so please, ask me some questions’.  [The applicant’s] unreliable evidence within the space of a few minutes at the commencement of the Tribunal’s hearing does not reflect well on his credibility or his reliability. 

26. Later in the hearing, [the applicant] lamented that he now thinks he is ‘very foolish‘ in failing to obtain a copy of the Delegate’s Letter and preparing some evidence for the hearing.  He regrets he ‘didn’t treat it seriously’.  [The applicant] added that all he knows is the Department ‘did not believe me on some issues’: he was not told by his representative, and nor did he ask, what the ‘specific issues’ were and, further, he ‘did not request a copy of the thick letter’ that he ‘knew would be coming from the Department’ setting out the delegate’s reasons for refusing his application for protection.  Significantly, he told the Tribunal that when his current representative told him that the delegate had refused his application he immediately instructed his representative to lodge an appeal with the Tribunal without asking for any details whatsoever about the reasons for the refusal: had he undertaken this step, the Tribunal would have had at least some basis for being satisfied that he genuinely fears significant harm if returned to China because his claims are genuine, and could have expected to have some credible evidence lodged in support of those claims.  No evidence in support of any of [the applicant’s] claims was lodged by him, or his representative, after the hearing. 

1. In the end, the Tribunal is left with [the applicant’s] story, unsubstantiated by any independent evidence whatsoever, a story that contains multiple inconsistencies as well as implausible explanations for the events which he claims occurred.  These shortcomings in [the applicant’s] story are discussed below.  The Tribunal is not satisfied with [the applicant’s] explanation for his failure to familiarise himself with the reasons set out in the Delegate’s Letter refusing his current application for protection or his explanation for failing to collate at least some credible evidence to address those concerns at the hearing, especially in light of the fact that he volunteered that the same concerns would arise for comment. 

2. Second, [the applicant] has provided inconsistent, unpersuasive evidence as well as implausible explanations to the Tribunal such that it raises serious doubts about the truthfulness of his claims.  The Tribunal’s concerns are discussed below.

3. First, inconsistent information has been provided by [the applicant] in relation to where he lived in China.  He told the Tribunal that he comes from [Village 1] and that his wife continues to live there with their two children, a [age]-year-old son and a [age]-year-old daughter who was adopted in November 2003.  Asked to describe the area, [the applicant] he said ‘it’s bit like a suburb next to the town and, when the city expanded, some of the land was allocated to be urban land’.  He told the Tribunal that [Village 1] is ‘very near Fuqing city, a mere time] minutes by bus’. 

4. [The applicant’s] evidence to the Tribunal is inconsistent with evidence provided in his first application for protection (as noted in the Delegate’s Letter) that he was a businessman who lived in Fuqing city and had sold his house in the city before coming to Australia.  When [the applicant’s] inconsistent information about where he claims to have lived was put to him he said ‘my home was close to the city so that when I answered quickly (in the Tribunal’s differently constituted hearing in relation to his first application for protection) I said I lived in the city’.  Later in the course of the Tribunal’s current hearing and in the context of discussing his family and life in [Village 1], [the applicant] told the Tribunal that ‘others have applied for protection in Australia and already have got it. My agent (in relation to his first application for protection) just put that stuff in. I was asked a lot of questions in the Tribunal but I did not know a lot about that information. I just went along’. 

5. The Tribunal has some concerns in relation to [the applicant] appearing before the Tribunal, as he did on two occasions in relation to his first application for protection, on the basis that he ‘just went along’.  As noted in the Delegate’s Letter, the Tribunal differently constituted was satisfied that [the applicant] had fabricated his claims in relation to being a Falun Gong practitioner in order to support his application for protection so that he could achieve a migration outcome.  Whether [the applicant] lived in the city or in a rural area was not relevant in the context of his first application for protection.  There was no reason for him to provide false information in relation to his home in that application.  However, it is essential in the context of his current application for protection that he should have had a home in a rural area.  This raises doubts in the Tribunal’s mind as to whether [the applicant] has changed his evidence about living in [Village 1] solely for the purpose of supporting the current application for protection.  Having viewed Google Earth[13] the Tribunal notes it is evident that what was (or may have once been) [Village 1] is now called [Village 1] Residential District and very much part of the Fuqing city with farmland at least [number] kilometres away.  The Tribunal is not persuaded with [the applicant’s] explanation as to why, when he appeared before a differently constituted Tribunal, he said he was a businessman who came from Fuqing City when in his current application based on being a farmer, who claims he has had his farm land expropriated he states that he has always lived in [Village 1] with his wife and children.  It appears to the Tribunal that [the applicant] has changed his evidence and this does not reflect well on his credibility. 

   [13][Information deleted].

6. Second, [the applicant] has provided inconsistent evidence about his occupation in his multiple applications to the Department and the Tribunal.  As noted above, in his first Protection visa application [the applicant] indicated that he was a businessman.  However, in his current application he claims to have been a farmer.  He also told the Tribunal that he had a business on the side on-selling goods to local stores.  [The applicant] provided no information in his Form 866C in relation to his employment.  The inconsistency in [the applicant’s] evidence raises doubts in the mind of the Tribunal and does not reflect well on his credibility.  It appears he has, yet again, changed his evidence to align with his current story to the Department and the Tribunal. 

7. Third, the Tribunal finds as implausible [the applicant’s] explanation as to why he first obtained a passport in late 2001 as well as visas for [Country 2], [Country 3] and [Country 4], as evidenced by the stamps in his passport.  It appears to the Tribunal that he may have settled on a plan to work overseas and, as part of that plan, had secured stamps in his passport as evidence to assist with an eventual application for an Australian visa. 

8. [The applicant] told the Tribunal that he has been farming on land allocated to him to grow [crops] since he had been married.  His eldest child, a son, is [age] years of age.  As noted above, [the applicant] said that [Village 1] is very near Fuqing City.  He told the Tribunal that, in addition to his main job of farming, he also had a small [business].  In response to the Tribunal’s question about whether or not he made a good living for his family from his farm supported by his other [business], [the applicant] said his work ‘just covered’ his family’s ‘basic living’ costs.  Mindful that his work covered only his family’s basic living costs the Tribunal asked [the applicant] how it was that he managed to afford a 2 day holiday to [Country 2] in November 2001 and had obviously planned other trips to [Country 3] and [Country 4].  Initially, [the applicant] said that he went to [Country 2] as part of a travel group organised by a travel agent and the trip was very cheap.  The Tribunal put to [the applicant] it seemed implausible that, if his work only just covered his family’s basic living costs, how he could afford to pay for travel to [Country 2] and plan for other trips.  It also raised questions for the Tribunal as to why he would go to [Country 2] for a 2 day holiday when China has many splendid tourist destinations itself.  [The applicant] replied: ‘At the time, I just wanted to get a passport. I needed to get a passport to go overseas‘.  The Tribunal asked why he ‘needed to get a passport’ in 2001.  [The applicant] replied that he wanted one ‘in case there was any trouble and so I could escape’.  Questioned as to the sort of trouble he envisaged, [the applicant] said he ‘had heard that the Government is going to expropriate our land and the government won’t pay much. So, I was thinking, if there is any dispute then I could get prepared and go’. 

9. The Tribunal observed that [the applicant] had made no mention of Falun Gong in his response to the Tribunal’s question about the sort of trouble he envisaged.  He responded that ‘when my first Protection visa application was prepared I didn’t come here for that reason’.  [The applicant] blamed his then agent who, he said, ‘did not prepare material appropriately’.  Asked whether he was a Falun Gong practitioner [the applicant] said ‘yes and no’.  He clarified he used to do Falun Gong ‘sometimes, after I came to Australia, when I didn’t feel good in the past’.  He does not practice Falun Gong now.  As noted in the Delegate’s Letter, in his first application for protection [the applicant] claims that he began to practice Falun Gong in 1997 and that the police came to his home and detained him for a month after he had written letters to the Fuqing Government in support of Falun Gong in July 2001.  The Tribunal finds [the applicant’s] failure to mention his earlier claim of being detained in July 2001 for supporting Falun Gong as the reason, or a reason, for initially obtaining a passport prior to his holidaying for just 2 days in [Country 2] in November 2001 to be adverse to his credibility.  The Tribunal also finds [the applicant’s] admission that he did not practice Falun Gong until after arriving in Australia and then only when he was not well to be adverse to his credibility, especially in light of the protracted claims he pursued for nearly 5 years in the Tribunal differently constituted twice, the Federal Magistrates Court twice and the full Federal Court relation to his first application for protection] before the Minister refused his application for Ministerial Intervention in March 2009 whereupon [the applicant] became an unlawful non-citizen for a further 5 years before the decision in SZGIZ enabled lodgement of this application.  The Tribunal finds that [the applicant] was not a Falun Gong practitioner in China and that, even when he did practise in Australia, he did so in the past, only occasionally, when he was unwell and that he is not a Falun Gong practitioner now.  As he does not practice Falun Gong now the Tribunal finds he would not practice Falun Gong if returned to China. 

10. The Tribunal asked why it was that he also had applied for and been granted visas for [Country 3] and [Country 4] before he applied for his visa for Australia.  [The applicant] replied that a friend had suggested he get these and had ‘even paid’ for him to obtain the visas.  He said ‘it was only after’ he got them that [the applicant] decided he ‘didn’t want to go’.  The Tribunal put to [the applicant] that this seemed implausible to which he replied ‘I didn’t know if he was joking. I didn’t know if it was difficult to get a visa. That’s why I gave my passport to him‘.  [The applicant] added ‘I didn’t have been the money to go overseas’ and thought his friend was ‘just joking’.  The Tribunal is not persuaded by [the applicant’s] explanation.  It appears to the Tribunal that it was part of a strategy by [the applicant] (at the suggestion of his then advisor) that when he applied for a visa for Australia he already had evidence of an entitlement to travel to other countries evidenced in his passport.  The Tribunal considers this to be highly likely, especially in circumstances where [the applicant] says he ‘could not afford to go overseas’.  It is the view of the Tribunal that there is simply no point in getting passport stamps or visas for additional countries ([Country 3] and [Country 4]) if someone does not intend to travel to those countries apart from wishing to present to Australian immigration officials that an applicant for [a temporary visa] has approval to travel to multiple other countries.  Such evidence would incline the Department’s decision makers to consider that the visa applicant has a history of business travel consistent with their claimed business position in China.

11. Asked why he chose to come to Australia and apply for protection rather than travel to [Country 2] again or to [Country 3] or [Country 4] [the applicant] said that, ‘after the land dispute, I wanted to go overseas and got a visa to come to Australia because I had a vague impression that, if there was some trouble, I would be able to get protection here’.  The Tribunal put to [the applicant] that, when he came to Australia on his [temporary] Visa, he was already aware that he could apply for protection to which he replied: ‘Yes, I was a little bit aware’.  [The applicant] said he borrowed money from family, friends as well as a loan shark, and spent [amount] RMB (just over A$[amount])[14] to apply for [a temporary] Visa in mid-2004.  His friend who got his [temporary] Visa for him told [the applicant] it cost this much because he ‘needed to bribe officials’ to get the visa.    

    [14] See as at 1 July 2004

12. The Tribunal has grave concerns about [the applicant’s] explanation for his reasons in first obtaining a passport as well as visa for [Country 2], [Country 3] and [Country 4].  It appears to the Tribunal that [the applicant] had a plan in relation to going overseas to work and set up a case for obtaining his [temporary] Visa on the basis of claimed travel to [Country 2] as well as visas for [Country 3] and [Country 4].  The Tribunal is not persuaded with [the applicant’s] explanation about these proposed travel plans (as indicated by stamps in his passport) when he also claims that his farm and [business] was just enough to cover necessities and, further, he admits he could not afford to travel overseas and yet was aware that if he got to Australia he could apply for protection and then stay pending an outcome on that application.  It is the Tribunal’s opinion that people whose work just covers necessities do not plan overseas holidays, let alone to countries such as [Country 4], and nor do they take holidays for just 2 days in countries such as [Country 2].  Moreover, the Tribunal notes [the applicant’s] failure to make any mention of his claimed detention for reasons that he advanced in his first application for protection of being a Falun Gong practitioner and that he pursed in the Tribunal differently constituted twice, before the Federal Magistrate Court twice, the full Federal Court and in two applications for Ministerial Intervention.  Owing to these concerns, the Tribunal is not satisfied with [the applicant’s] explanation that the obtained his passport with a view to going overseas because he heard the government was going seize land and pay little compensation.  The Tribunal is not persuaded by his evidence in this regard.      

13. Fourth, [the applicant] has provided inconsistent evidence about the rural land he claims had been allocated to him and which has been expropriated without fair compensation.  He told the Tribunal that [an amount] square meters had been allocated to him in 1987 when he was [age range] years old and that he ‘could not remember’ details about the allocation because he was ‘young at the time’.  However, as noted in the Delegate’s Letter, [the applicant] initially told the delegate he ‘estimated’ his block was ‘between [smaller amount range] sq. meters’ when asked about its size.  After the delegate put to [the applicant] that given land was such a scarce commodity in China it was not credible that he did not know the exact size of his block of land [the applicant] stated that he had ‘no idea of the size of the land’ that had been sold to the new owners because it had been ‘rezoned’.  Later in the course of his interview with the delegate [the applicant] changed his evidence and, as noted in the Delegate’s Letter, said that his land was ‘about [amount] sq. meters’.  Having listened to the tape of [the applicant’s] interview with the delegate it is clear that he changed his evidence during the course of that interview: there is no ambiguity in the delegate’s questions about the size of the land he claims was taken from him.  In the Tribunal’s opinion, it does not reflect well on [the applicant’s] credibility that he did not know, when initially asked at interview, the size of the land that he claims to have farmed for more than 24 years and that he changed his evidence during the course of the interview, by more than doubling or trebling, the size of land that he now claims was taken from him.

14. Fifth, [the applicant] has provided inconsistent information in relation to the amount of compensation that he says he received for his land.  He told the Tribunal that he received [specific amount] RMB.  However, as noted in the Delegate’s Letter, he told the delegate at interview that he received [wider range] RMB.  During the course of the hearing [the applicant] said he ‘did not give the delegate a range’.  He said that the delegate had asked about the rate of compensation for one Mu of land to which he replied [this amount range].  Having listened to the tape of the interview, the Tribunal accepts that [the applicant] was asked this particular question. However, when the delegate asked how much did [the applicant] receive he replied ’the same range’.  The Tribunal observed that there is a significant difference between getting [the two amounts in this range] RMB.  [The applicant] did not comment.  The Tribunal is not persuaded by [the applicant’s] recollection of events at his interview with the delegate.  It is clear that he gave a non-specific response to the delegate when asked how much he had received by way of compensation and yet, at the hearing, he changed his evidence and provided a specific amount of money that he received as compensation.  This change in evidence does not reflect well on [the applicant’s] credibility.

15. Sixth, inconsistent evidence has been provided by [the applicant] in relation to his claimed detentions by Chinese authorities.  He told the Tribunal that he was released in September 2002 after [number] months detention at [a detention centre] because he had been attempting to find work with the people building houses on the land that was formerly allocated to farmers including him and, when he was told there was no job, he would then ask the homeowners if they could give a donation to the church.  He also said that he had been detained in ‘November 2001, at that time I thought it was difficult to get a visa for another country’.  The Tribunal questioned the date and [the applicant] changed his evidence and said ‘November 2003’.  He said this was when he was trying to get to [Country 1] and he was detained at [another detention centre] for [number range] days before being taken to [Detention Centre 1] in the middle of Fuzhou city.  The Tribunal put to [the applicant] evidence outlined in the Delegate’s Letter that country information confirms [Detention Centre 1] does not exist.[15]  [The applicant] stated it ‘is in [district]’.  As noted above, the Tribunal is required to take account of country information and has independently confirmed information put to [the applicant] by the delegate that [Detention Centre 1] does not exist.

    [15] [Information deleted].

16. Inconsistent with his evidence to the Tribunal and, as noted in the Delegate’s Letter, in his first application for protection [the applicant] claimed to have been detained for a month after he had written letters to the Fuqing Government in support of Falun Gong in July 2001 and for [number] months from February 2003 after travelling to Beijing to protest about the treatment of Falun Gong practitioners.  Further, [the applicant] claims he was detained again for [number] days after attempting to depart China from [City 1] for [Country 1].  Consistent with the provisions of s.424AA of the Act, the Tribunal put to [the applicant] that he had also provided inconsistent evidence to the Tribunal differently constituted when he told that that Tribunal at its August 2006 hearing that he had been detained from February to August 2002 and again from February to August 2003.  [The applicant] responded that ‘the previous application was because my previous agent had put in the information’.  The Tribunal reminded him that the inconsistency was evidence in his own words before that Tribunal differently constituted.  [The applicant] replied that his ‘memory was not good then. I talked about that issue (that is, my poor memory) then.’  As noted above, based on [the applicant’s] admission at the hearing, the Tribunal has found that he was not a Falun Gong practitioner in China.  Accordingly, the Tribunal finds that was not detained in China for being a Falun Gong practitioner or supporter.  [The applicant’s] changing and inconsistent evidence to the Department, the Tribunal differently constituted and this Tribunal does not reflect well on his overall credibility.    

1. Seventh, confusing and unpersuasive evidence has been provided by [the applicant] in relation to the reaction of home owners to approaches by displaced farmers (including [the applicant]) who sought work or tried to raise money for the church and the consequences which he claims followed.  Initially, he advised the Tribunal that the owners had wanted to pursue charges against him, and other displaced farmers.  When the Tribunal briefly explained the difference between breaches of the criminal law being prosecuted by the police and civil law claims by individuals for damages [the applicant] said ‘the owners were suing us’.  It appeared to the Tribunal that he was changing his evidence, yet again.  [The applicant] then said ‘because it was a criminal case there was a prosecution and the police were involved’.  He said ‘a lot of people were sentenced but, because I spent some money, I was bailed out’.  He added he ‘thought it was all finished and no big deal but, two years later, charges were pressed against me for extorting money’.  He said the charges are still pending.  Significantly, asked whether he was served with an Arrest Warrant, [the applicant] said he was not.

2. The Tribunal is not persuaded that either home owners or the police pursued [the applicant] for a civil claim for damages or prosecuted him for extorting money because he approached new home owners for work or, in the event that work was not available, a donation for the church.  The Tribunal does not find [the applicant’s] claim that he was charged with extorting money from new home owners to be credible.  In this regard, the Tribunal notes that had charges being laid it would not have been possible for [the applicant] to leave China.  Country information indicates that a number of agencies within the Ministry of Public Security hold responsibility for monitoring entry and exit procedures at Chinese airports, including the Public Security Bureau, the Entry and Exit Authority, and the Frontiers Inspection Bureau.  China’s major airports have a centralised system with name matching alert capabilities and, further, that security, monitoring capabilities at major airports are comprehensive.[16]  [The applicant’s] ability to leave China in September 2004 clearly indicates that he was not a person of interest. 

   [16] DFAT Country Report – People's Republic of China 3 March 2015, p. 20

3. The Tribunal put to [the applicant] that, if as claimed, the matter pending was a criminal charge and not a just civil case his name would be on a list such that he would not be able to leave China.  The Tribunal noted Article 8 of the Chinese Code indicates that an exit permit is required to leave China and that he would not have been able to obtain an exit permit if a criminal charge was pending.  [The applicant] responded that this is why when he ‘first attempted to go overseas to [Country 1] it was illegal’ and he was arrested in November 2003.  The Tribunal observed that his first passport indicated that he had travelled to [Country 2] for two days in November 2001 and the fact that went to [Country 2] meant that he had an understanding that an exit permit was required.  In the circumstances, it should have been evident to [the applicant] that he would need a visa to go to [Country 1].  He replied ‘I can provide you with a document proving that I was arrested trying to leave China’.  No such document was provided to the Tribunal.  The Tribunal put to [the applicant] that the widely recognised prevalence of fraud in documentation from China after a more than 10 years delay might lead it to find that he is not a credible witness and not in need of protection.  In this regard, the Tribunal noted country information that fraudulent documents are widely available in China with some sources stating that no personal documents in China can be trusted and that all the documents should be assumed fraudulent unless verified.[17]  [The applicant] replied ‘I have relatives in [Country 1], none in China‘.  The Tribunal notes [the applicant’s] claim to have ‘no relatives in China’ is inconsistent with information provided by him in his application to the Department in which he claims to have his wife, son and daughter as well as his parents in China and, further, he told the Tribunal about his wife, son and daughter adopted in November 2003.  No evidence was provided to the Tribunal of any relatives in [Country 1].

   [17] Australian Government Migration Review Tribunal Refugee Review Tribunal, Background Paper – China: Document Fraud, February 2014, p. 2; DFAT Country Report People's Republic of China, 3 March 2015, p. 21

4. Based on evidence provided, it is clear that [the applicant] was not a person of interest to Chinese authorities.  If this were otherwise his departure from China would not have been possible.  Accordingly, the Tribunal finds that he has not been charged with extortion and that his claim in this regard is entirely fabricated.

5. Eighth, the Tribunal was provided implausible evidence in relation to [the applicant’s] adoption of his [daughter] as it impacts on his claims.  Early in the hearing, he told the Tribunal that he and his wife adopted their baby daughter in November 2003.  She had been left on their doorstep and he felt great pity for her.  Later in the hearing, he told the Tribunal that he was unemployed at this time as his farmland had been taken and he had extortion charges pending.  Asked why it was that, in the circumstances in which he found himself, he would adopt his baby daughter [the applicant] said ‘she was abandoned’ and he ‘had pity on her‘.  The Tribunal observed the fact that he had taken in a baby in November 2003 raises doubts about his whole story because, if his circumstances were as claimed, it was clear he could not properly care for her owing to the fact that he claims he was unemployed at the time and had extortion charges pending.  [The applicant] replied ‘I just sympathised with her. It was our decision. I don’t want to talk about it. If she was sent to the government, it would be the end of her’.  The Tribunal suggested, in the alternative, he could have taken the baby to someone who worked with the church for whom he claimed to be doing fundraising.  He said ‘I didn’t think too much about it’.

6. A short time later in the hearing, [the applicant] told the Tribunal that it was November 2003 that he had endeavoured to get to [Country 1] without a visa and was detained by authorities in [City 1] and Fuzhou.  The Tribunal put to [the applicant] it appeared implausible that he should leave his wife with his young son and a newly adopted baby daughter in China and go to [Country 1] at a time when he claims to have been unemployed and had extortion charges pending.  There appears to the Tribunal no reason why [the applicant] would fabricate a claim in relation to adopting a daughter at this time.  However, it appears to the Tribunal implausible, if his circumstances were as claimed, that he would adopt a baby left on his doorstep but rather taken the child to someone else for appropriate care.  The Tribunal is not satisfied that [the applicant] has been truthful in relation to his claims to being detained for attempting to go to [Country 1] in November 2003 without an exit permit or having extortion charges pending at that time.    

7. Ninth, [the applicant] has given inconsistent evidence to the Tribunal about working in Australia.  Although [the applicant’s] evidence in this regard is not relevant to the assessment of his claim for protection it nonetheless it is relevant in so far as it demonstrates, yet again, that his evidence is unreliable.  At the commencement of the hearing [the applicant] told the Tribunal that he did not work in Australia.  He said his representative told him that he ‘can’t work’ because he does ‘not have a work permit’.  [The applicant] told the Tribunal he has ‘been getting by with the help of friends and relatives’ and ‘sometimes, I do some [deleted] work’.  He then said about ‘2– 3 weeks ago, I got to know from a friend that my friend had applied’ successfully for work rights whilst awaiting the outcome of a decision (of the Department) and so he ‘checked with my representative again’.  This time, his representative told him that he ‘could apply’.  Questioned as to whether he had since applied for work rights [the applicant] said he had not.  It appears implausible to the Tribunal that having found out 2 - 3 weeks ago that he could apply for work rights [the applicant] did not immediately instruct his representative to make a fully documented application.  It raises doubts for the Tribunal as to the credibility of his claim that he only found that he could apply for work rights 2 – 3 weeks ago.

8. During the course of the hearing [the applicant] told the Tribunal that he harvested [a crop] on his [number] square meters by hand: he did not use a mechanical harvester.  This is Inconsistent with evidence in his earlier application for protection where he indicated that he was a businessman.  The Tribunal asked to examine [the applicant’s] hands to determine if he had the hardy hands of a farmer.   It observed that his hands were [filthy] [extremely dirty] and looked as if he had been working on a construction site.  The Tribunal put to this observation to [the applicant] and he admitted he had worked on a construction site in ‘the previous week’.  The Tribunal finds that [the applicant] has, yet again, provided false or at best misleading information about whether or not he is working in Australia.  If, as claimed, he did occasional [other type of work] he would have clean hands rather than the extremely dirty hands typical of a construction worker.  This is reflects poorly on his credibility.

9. Third, even if the Tribunal was to accept that [the applicant] may have had a plot of land allocated to him by [Village 1] Collective his level of ignorance of basic concepts in Chinese property law and, in particular, rural property law raises serious doubts about the credibility of his claims in relation to the appropriation of what he claims is his land and his resultant entitlement to compensation.  Country information notes that land in China is owned by the State.  In rural areas land is owned by the Village Collective and is allocated to villagers on agreed terms.[18]  As a result, villagers have a right to use rural land but do not own it.   [The applicant] agreed with these observations by the Tribunal.  As noted above, inconsistent with his initial advice to the delegate in his interview that he had been allocated between [smaller amount range] sq. meters [the applicant] claims he had [larger amount] sq. meters.  He said it was ‘very valuable farming land’ allocated by the Village for him to grow [crops].  [The applicant] added that ‘it was China’s policy back then for the Village to allocate the land to villagers’.  He opined that ‘if the land was privately owned in China you would not have so many disputes. Some people die because of the disputes. The land belongs to the country, so if the country wants it back, then it takes it back’.   The Tribunal accepts, based on country information referred to below, that there have been many violent disputes in relation to land expropriation for development purposes.  [The applicant’s] lack of knowledge about rural property law issues was evident throughout the hearing.  The Tribunal’s concerns in this regard are discussed below.

   [18] DIBP’s Background Paper China: Land Expropriation and Compensation October 2014; CX277317 “Countries at the crossroads 2011 – China’, Freedom House, 10 November 2011.

10. First, the Tribunal noted country information that property law in rural China was subject to extensive changes in 1998 and asked [the applicant] if he had any evidence of his licence to use [the larger amount] sq. metres of farmland allocated to him.  [The applicant] replied that he had ‘submitted his household registration book (to the Department). I think it should be specified there’.  The Tribunal observed that if [the applicant] (or his representative) had read the Department’s letter refusing his application for protection he would be aware of the issue of the absence of evidence about his Hukou because there was nothing on the Department’s file regarding his household registration: nor was there any evidence of his entitlement to use the rural land he claims was allocated to him.  [The applicant] replied that ‘when I applied for my current passport I had to fax it (my Hukou) through to the Chinese Consulate’.  The Tribunal again observed that no such document had been provided to the Department or the Tribunal as evidence of his household registration.  [The applicant] apologised.  He said: ‘It is my fault. If I knew about these issues I would have brought along evidence‘.  Significantly, no evidence was lodged by [the applicant] (or his representative) after the hearing confirming [the applicant’s] household registration in [Village 1].  In the absence of such documentation - despite the fact that [the applicant] has indicated that he had such documentation at home with him in [Australia] because he has lodged a copy of it with the Chinese Consulate to enable him to obtain his current passport that was issued [in] 2013 - it is open for the Tribunal to consider the probability or possibility that [the applicant’s] Hukou indicates, consistent with his first application for protection, that he lived in Fuqing city for a period of time or that his Hukou otherwise contains information which [the applicant], for some reason, does not wish to provide to the Tribunal.  In any event, the Tribunal is left without any independent evidence whatsoever of [the applicant’s] claimed connection with [Village 1], despite him claiming to have such evidence at home in [Australia].  It does not reflect well on [the applicant’s] credibility that he said he would provide the Tribunal with his original Hukou but then failed to do so. 

11. Second, of significance is the fact that when [the applicant] was asked for evidence of his allotment he told the Tribunal that he thought it was in his Hukou.  Article 14 of China’s Land Administration Law stipulates that land ‘owned by peasant collectives shall be operated under a contract by members of the economic organisation of the peasant collective‘ and specifies that ’the party that gives out a contract and the party that undertakes it shall sign a contract in which to stipulate the rights and obligations of both parties’.  Further, the Rural Land Contracting Law states that ’written contracts and certificates be executed and issued to confirm farmers’ rights to land’.[19]  [The applicant] appeared to be totally unaware of any documentary arrangement made between him and the Village Committee or certificate being issued to him regarding the land he claims to have been allocated to him.  The Tribunal notes country information that, as at 2005, only two-thirds of farmers surveyed had received documentation[20] and accepts that [the applicant] may have fallen within the one-third of farmers who did not have any documentation to evidence their allotment of land.  However, at no time during the hearing did [the applicant] indicate that he had nothing in writing from the Village Committee to provide to the Tribunal: rather, he ‘thought’ it might be in his Hukou.  Country information notes that a Hukou is not issued by the Village Committee (rather, it is issued by the local Public Security Bureau) and, as such, it does not contain evidence of rural land allocation.  He merely stated ‘it all happened a long time ago’.  [The applicant’s] failure to assert that he was allocated without having signed an agreement and has not been asked to sign anything since the claimed allocation in 1987 raises doubts for the Tribunal about his familiarity with the rural land allocation process and, therefore, whether he has been truthful in his claims about having any rural land whatsoever allocated to him.

    [19] CHN103402 China: procedures for land expropriation; whether individuals from Guangdong, Fujian and Liaoning are issued documentation when their land is expropriated; recourse available to and treatment of citizens who oppose land appropriation (2007- 2010, ) 5 July 2010 with comments 12 June 2014

    [20] Ibid

12. Third, asked about the nature of the arrangement that he claims to have had with [Village 1] Committee [the applicant] told the Tribunal that he had ‘been allocated land for 30 to 50 years’.  The Tribunal put to him that such a significant time difference raises serious doubts for the Tribunal as to whether he knew the nature of the terms on which land had been allocated to him.  He repeated again that he was ‘still young at the time (of the allocation) and didn’t understand‘.  This raises further doubts in the mind of the Tribunal in relation to his claims in light of the fact that [the applicant] had earlier indicated to the Tribunal that the land was ’very valuable’.  It is the Tribunal’s opinion that, if the land was indeed ‘very valuable’, [the applicant] would have familiarised himself with the terms of his allotment, especially in circumstances where, if as claimed, he had become aware of the government’s intention to expropriate land, because he could have transferred his marketable interest in the ‘very valuable’ land to someone else before he left China for Australia.  That farmers allocated land have marketable interests in their rural land is confirmed by country information.[21]

    [21] ‘China’s next revolution 2007’, The Economist, 8 March 2007

13. Although the Tribunal accepts the absence of documentation to confirm [the applicant’s] claim to allotment of [the larger amount] sq. meters of land it nonetheless has concerns that [the applicant] appears to have failed to appreciate fundamental aspects of the claimed allocation of rural land to him.  Not only did he tell the Tribunal that the very valuable land had been allocated to him for a period ranging from 30 to 50 years but it appears that [the applicant] was unaware of requirements for a written contract or certificate setting out the terms of his allocation.  His statement to the Tribunal that he thinks evidence of the allotment to him of land is ‘set out in his Hukou’ and then his failure to provide his original Hukou to the Tribunal, despite informing it that he had left his Hukou at home in Sydney and would bring it in, raises doubts about the credibility of his claims notwithstanding the Tribunal accepts such arrangements are not set out in a Hukou but rather in a contract or a certificate and, further, that not all famers have a documentary evidence of their rural land allocation.

14. Fourth, it became evident during the course of the hearing that [the applicant] appeared to have no concept of the basis on which compensation is provided under Chinese property law when rural land is expropriated even though he told the Tribunal that, when his land was expropriated in ‘June 2002’, he ‘got [the specified amount] RMB for my land.’  He added it ‘was unfair because the land had been used for a long time and it was just taken away’.  Asked how compensation would have been calculated, [the applicant] initially replied evasively that ‘if the land is taken away, then there is nothing to live on’.  Pressed for details on how the fair compensation that he was expecting would be calculated [the applicant] replied ‘it’s on the basis of food for each household‘.  Asked about the value of the food for his household that he claims his farmland produced [the applicant] said ‘maybe 5,000 to 6,000 RMB’ (A$1,069 - $1,283).[22]  Pressed to be more precise, [the applicant] said it was ‘a long time ago’.  The Tribunal observed that this did not sound like a lot of money and that is why it had been surprised [the applicant] indicated he had taken a short 2 day holiday to [Country 2].  [The applicant] replied he paid an agent 2,000 to 3,000 RMB to take the trip: the Tribunal notes this amounts to roughly half the total value of his annual output from his claimed farmland.  It appears implausible to the Tribunal that [the applicant] would, as claimed, pay for and take a short two-day trip to [Country 2] for a sum of money that represents one half of the total output from the farmland he claims was his allocated farm.

    [22] See as at 1 July 2002

1. The Tribunal then outlined the basis of compensation as confirmed by country information that under the 1998 Revised Land Administration Law rural land development requires a two-step process.  First, land is expropriated from the Village Collective by the State and transfer of land ownership title to the State is required.  Once ownership is vested in the State, it becomes urban land and transferable to private developers and other entities by conveyance or allocation.  Once the land becomes State-owned, collective ownership is severed and peasants have no further claim to it.  Article 2 of the Land Administration Law establishes that the State may ‘in the interest of the public, lawfully expropriated or requisition land and give compensation accordingly’.[23]  Article 47 states that compensation paid for expropriated land shall include ’land compensation fees, resettlement fees and compensation for attachments to or green crops on the land’.[24]  According to Article 47, land compensation fees shall be 6–10 times the average output value of the three years preceding the expropriation of the cultivated land, capped at an amount 30 times the average annual output value of the expropriated heated land calculated on the basis of three years preceding such expropriation.

   [23] Land Administration Law of the People's Republic of China, promulgated 25 June 1986 (revised 28 August 2004) cited in DIBP’s Background Paper China: Land Expropriation and Compensation October 2014, p. 6.  See also CIS28587  “China: Procedures for land expropriation; whether individuals from Guangdong, Fujian and Liaoning are issued documentation when their land is expropriated; recourse available to and treatment of citizens who oppose land expropriation” 1 July 2010

   [24] Ibid

2. Based on the figures provided by [the applicant], it appeared to the Tribunal that, applying the formula in Article 47 for compensation, he should have received between 30,000 – 60,000 RMB and that, if as claimed, he received [the specified amount] RMB ($A[amount]) compensation, this was at the lower end of, but within, the spectrum.  This compares with the situation of many Chinese farmers who, based on country information, receive little or no compensation at all, which has resulted in considerable tension between farmers and local governments in rural China.[25]  [The applicant] replied that it was ‘not enough because farmers live off the land’.  He added that, in his case, the ‘Village got [larger amount range] RMB (A$[amount to $[amount])[26] for the land when it was on-sold to developers.  He said he was told this by the people involved.  Country information notes that local governments can sell the same land to developers for typically 10 times the value of compensation paid to farmers.[27]  On the evidence provided it would appear that instead of getting one tenth of the value of his land as on-sold to developers [the applicant] claims he received one hundredth of its value.  The Tribunal finds as totally implausible [the applicant’s] claim that his [larger amount] square meters of land was on sold by [Village 1] to developers for the amount claimed: not only is there a 50% range in the value but it appears the amount is totally exorbitant for a parcel of land that is just [amount] square meters. 

   [25] Ibid

   [26] See as at 1 July 2002

   [27] DIBP’s Background Paper China: Land Expropriation and Compensation October 2014, pp.14-15

3. When the Tribunal put to [the applicant] that it is the Village Committee that negotiates the deal with developers and that he appeared to have been paid, admittedly at the lower end of the spectrum, that which country information indicates he would be entitled - if [the larger amount] sq. meters had indeed been allocated to him - to which [the applicant] replied, to the Tribunal’s surprise, that he ‘really didn’t know about the existence of Article 47’. The Tribunal put to [the applicant] that if he was indeed a farmer, in its opinion, he would know about Article 47. [The applicant] replied that ‘it’s different in China because although we have legislation it’s implemented differently in different areas’. He added that ‘in Fujian it’s not like that – not all land compensation is calculated on 6 - 10 times the value of produce’. Although country information notes that payment of compensation is required by law as well as under the Constitution a report in 2012 found that one in five farmers received no compensation for the expropriated land.[28]   The Tribunal is of the opinion that, even though [the applicant] claims he received [the specified amount] RMB compensation (or roughly 6 times the value of the output of his land), if he genuinely believed he was entitled to more compensation at the higher end of the scale, it is the Tribunal’s opinion that, as a farmer who claims to have been aware of pending land expropriation when he applied for his passport in 2001, he would have been aware of the basis of compensation set out in Article 47. 

   [28] Ibid p.15

4. Fifth, asked what compensation he expected to receive [the applicant] told the Tribunal he hoped to get [amount] RMB per Mu.   He added that the rate is now [larger amount] RMB per Mu.  The Tribunal noted again that the land in China is owned by the State in urban areas and rural land is owned by Village Collectives.  So, while Chinese law notes that although individuals may privately own the buildings on land, the State retains ownership of the land itself.  It appeared to the Tribunal that [the applicant] has failed to appreciate fundamental aspects of Chinese property law such that it raises doubts in the mind of the Tribunal was to whether [the applicant] ever had an arrangement with [Village 1] Collective to farm land allocated to him.

5. Fourth, [the applicant] has provided implausible and confusing evidence in relation to claims regarding involvement in fundraising for the church.  He told the Tribunal that he was approached by a neighbour to help the church raise money to ‘buy equipment, repair a damaged road in the village’ and ‘do good deeds helping people like me and the poor’ by going to property owners to ask for donations.  Asked why he would do that [the applicant] said it was ‘because the home owners occupied our land’.  The Tribunal reminded him, yet again, that he did not own the land: rather, the land was owned by the Village Collective if it was rural land and merely allotted to him for a period on terms. 

6. The Tribunal asked [the applicant] if he was a member of the church to which he replied ‘No, I was just asked to help’.  He said he ‘was about to join the church but had not yet done so’.  Questioned as to how he explained to new home owners the purpose of his fundraising [the applicant] said that the developer had ‘promised us work because our land had been expropriated and, if there was no work, we should check with the home owners to see if they could offer us any jobs’.  He justified this on the basis that, because ‘they were building on land that used to be the farmers’ land. If they hadn’t bought the land from the developer it would still be the farmer’s land to use’.  The Tribunal reminded [the applicant] that it was not the farmers’ land but, rather, the Village Collective’s land allocated to farmers on terms.  [The applicant] observed that the land was used to produce food for the farmers to feed themselves.  He added that, by comparison, registered urban households are provided [an amount] RMB rice money.  He opined: It’s unreasonable’. 

7. Asked to describe what happened in the course of approaching the landowners [the applicant] said ‘I would knock on their door and ask if they had a job and, if there was no job I would ask if they could give a donation to the church’.  He said that ‘some people agreed and some didn’t’.  The Tribunal asked whether he handed over any money collected or kept it on the basis that he counted himself among the poor the church assisted [the applicant] replied that he ‘got [an amount] RMB from 11 households’.  The householders complained to the police about his fundraising.  The Tribunal put to [the applicant] that it appeared if there was no job in the offering he could be seen to be just begging for money.  He replied ‘I was looking for a job’.  Asked again if he kept any money collected [the applicant] replied ’no’.  The Tribunal put to him that if, as claimed, he had no income why it was that he would raise money for the church rather than find work for himself to support his own family and put food on their table, or focus on his [business].  The Tribunal had noted earlier in the hearing country information that the unemployment rate in the vicinity of Fuqing in 2002 was well below that of Australia at time.  [The applicant] agreed and said this was because there was a lot of development happening. He added ‘a neighbour’ had asked him ‘to help in doing good deeds’.  The Tribunal finds as implausible [the applicant’s] explanation about why he claimed he was knocking on people’s doors asking for work and, if none was offered, then requesting money for the church in the context of him not only having a sideline [business] that could have been ramped up, or he could approach the developers directly with a view to working on some of the big developments that told the Tribunal were happening in Fuqing at that time.  It appears to the Tribunal that [the applicant] has fabricated his story to explain why he claimed he was detained for [number] months.

8. [The applicant] told the Tribunal that in September 2002 he was released after [number] months in detention in connection with the extortion of money for the church and thought it was all finished.  He said ‘a lot of people were sentenced’ but that he was not because he was ’bailed out’ by his family.  [The applicant] added that after he was released ’I thought it was finished and not a big deal. I thought it would be the end of the matter. But, the owners wanted to pursue the charge. The owners were suing us’.  The Tribunal attempted to clarify whether the matter was the subject of criminal law prosecution such that [the applicant] could be fined or sent to jail or whether it was a civil matter where owners were suing him and seeking damages.  [The applicant] clarified it was ‘not a civil case. I asked them for money against their will’.  Initially, he thought it was a ’small matter but all of a sudden they pressed charges’.  [The applicant] said he was not served with an Arrest Warrant but, rather, ‘they asked us to have a meeting and told everyone not to do it again’.  In the absence of any credible evidence from [the applicant] in relation to the claimed legal action initiated by new home owners on land that was previously allocated to farmers, the Tribunal is not satisfied that the events as claimed by [the applicant] occurred.  The Tribunal finds his evidence confusing and unpersuasive.

   Does Australia have protection obligations to [the applicant] under complementary protection criterion

9. Country information[29] notes that corruption is a pervasive problem in China and that it touches virtually all corners of society from the economic, political and judicial fields to the social, cultural and educational ones.  Corrupt practices are evident in many areas of Chinese society but most sources agree that corruption problems are concentrated in sectors with extensive state involvement including land use and property development.  China ranks 100 out of 175 countries and territories measured on Transparency International’s 2014 Corruption Perceptions Index.[30]  Official corruption in land transactions is a problem in virtually all provinces of China[31] and local officials often collude with developers to seize the best plots of land and provide farmers with inadequate compensation.[32]  Fujian is no exception to this.

   [29] DFAT Background Paper -  China: Official Corruption, 11 September 2013

   [30] DFAT Country Report - People's Republic of China, 3 March 2015

   [31] Xin, Z 2008, ‘China finds a rampant problems in official land deals’ Reuters 4 June 2008

   [32] Lee, J 2008 ‘China's empty land reform’, The Guardian, 4 July 2009

10. For the reasons outlined above, the Tribunal has formed the view that [the applicant] has not been truthful in his claims and he totally lacks credibility.  When considered individually and cumulatively, the Tribunal’s concerns in relation to [the applicant’s] evidence, including the multiple inconsistencies outlined above and his admitted failure to prepare for the hearing despite his familiarity with the legal processes involved as well as his unpersuasive and implausible explanations, all cause the Tribunal to conclude that the events described by [the applicant] did not occur and that he has fabricated his claims with a view to a migration outcome.  The Tribunal rejects his claims in their entirety.  The Tribunal does not accept:  [the applicant] has been detained twice and persecuted by the authorities or  accused of collecting protection monies in the course of raising funds; [the applicant] fears being detained and persecuted again as well as being unable to claim his rights to fair compensation if he is removed to China;  the authorities and developers have taken his land without fair compensation;  in retaliation for seeking compensation the authorities accused him of fund raising for the church or extortion and put him into detention; his family paid money to corrupt officials to have him released on bail for medical treatment;  he was detained for attempting to travel to [Country 1] without seeking an exit permit and released after paying a substantial fine; or, that as charges on extortion are still pending the authorities will take action against him if he is removed to China.

11. Having rejected the entirety of [the applicant’s] claims, the Tribunal finds that there is no real risk that he will be suffer significant harm now or in the reasonably foreseeable future if he returns to China.  The Tribunal finds that [the applicant] does not satisfy the criterion set out in s.36(2)(aa) of the Act.

    CONCLUSION

12. As indicated above, the Tribunal does not have power to consider this application under the Refugee Convention criterion in s.36(2)(a) of the Act.

13. For the reasons given above and on the basis of information before me, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

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

    DECISION

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

    Katie Malyon

    
    Member