1410872 (Refugee)

[2015] AATA 3282

1410872 (Refugee) [2015] AATA 3282 (7 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1410872

COUNTRY OF REFERENCE:                  China

MEMBER:Meena Sripathy

DATE:7 August 2015

PLACE OF DECISION:  Sydney

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

Statement made on 07 August 2015 at 9:59am

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 to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, a citizen of China, arrived in Australia in September 2006 as the holder of a Student visa.  His last student visa was valid until March 2010, after which time he became an unlawful non-citizen.  He first applied for a Protection visa in August 2010.  This application was refused by a delegate of the Minister in November 2010, and on review by a differently constituted Tribunal on 9 March 2011. He appealed that decision to the Federal Court and the application for judicial review was dismissed [in] July 2011.  

3. Following the introduction of the ‘Complementary Protection’ criteria into the Migration Act in March 2012, and the subsequent decision of the Full Court of the Federal Court in SZGIZ v MIAC (2013) 212 FCR 235, the applicant was eligible to have his claims assessed against the Complementary Protection criterion, and on that basis, he lodged a further application for a Protection visa [in] January 2014. That application was refused by a delegate of the Minister for Immigration on 28 May 2014 and is the subject of the present review.

   Validity of the application and the Tribunal’s jurisdiction

4. Section 48A 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 made an application for a Protection visa which has been refused.  However, in SZGIZ v MIAC, the Full Federal Court held that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a Protection visa 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.  Applying the reasoning in SZGIZ v MIAC, the Tribunal does not have power to consider the Refugee Convention criterion in s.36(2)(a), and, accordingly, 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.

5. Therefore, the issue in this case is whether there are substantial grounds for believing that, as a necessary and foreseeable consequence the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CLAIMS AND EVIDENCE

   Evidence to the Department

7. Information provided in his application indicates that the applicant is a [age] year old man from Fujian province.  He is speaks, reads and writes Mandarin and states his religion as Christian. He provided one residential address from birth until his departure from China in September 2006. He completed primary and middle school in [City 1], Fujian province prior to coming to Australia in 2006 at the age of [age].

8. A copy of the applicant’s Chinese passport, issued [in] 2006 and valid until [2011], is on file.   In his application he indicates that he left the country legally on this passport. He states he paid a large sum of money to obtain his passport. 

9. The applicant stated in his application that he left his country to escape from harm.  He claims that his father secured a contract for a [business] with the government and borrowed money to buy an [equipment].  After the [people] were unsuccessful in their claim for fair compensation from the government they turned against the applicant’s father and ‘dynamited’ the [equipment]. When his father sought compensation from the government, they denied liability.  The [people] then stormed the applicant’s house and took their farmland as well. He claims that if he is removed to China he will claim his rights and as a consequence he will be harmed and persecuted.  He fears revenge against him and fears for the safety of his life.

   Claims in previous protection visa application

10. The applicant’s claims in his first protection visa application in 2010 also related to his father’s [contract] business with the government.  In that application he claimed local [people] who objected to the [work] destroyed his father’s [equipment].  When his father and his business partner, the applicant’s [cousin] sought compensation from the government in November 2004 over this incident they had a dispute with local officers. The dispute resulted in a physical altercation and his father hit an officer, which forced his father and cousin to flee to another place. In November 2004 the local officers came looking for his father and arrested his mother, causing her mental problems. The police visited their house every few weeks after this. He claimed he had difficulties at school because of this incident. In about August 2006, [his cousin] was beaten to death by unknown people and the whole family lived in fear. 

    Interview with delegate

11. The applicant was interviewed by a delegate of the Department of Immigration in relation to the present application [in] May 2014. The Tribunal has listened to the audio recording of this interview and notes the following information that was provided.

12. The applicant reiterated and elaborated on his written claims at the interview.  He also made the following additional claims not previously mentioned in the application.  The applicant told the delegate that his [brother] was deported from Australia last year and in April 2013 he was detained by authorities. He claimed that his brother was still in custody as at the time of the interview. His brother was unable to obtain employment when he returned to China so he went back to their home town to pursue the compensation owed to his father and was arrested and detained for doing this. The applicant said he heard this news from his uncle. The applicant claimed that if he were returned and could not find employment he would have to do the same and he fears that they will arrest him as they did his brother.  He also told the delegate that his aunty, the mother of his cousin who was murdered, was detained because she tried to complain about her son’s death.  He said she took her complaints all the way to Beijing and was detained for causing trouble in this manner.   

13. The delegate refused the application on the basis of not accepting the applicant was a credible witness.  The delegate did not accept any of the applicant’s claims and did not accept that he was at risk of harm from the Chinese authorities or local [people].

    Tribunal hearing

14. The applicant appeared before the Tribunal on 3 August 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant’s mother [was] present at the hearing in a support capacity but did not give evidence. The applicant’s registered migration agent did not attend the hearing.

15. The applicant gave evidence to the Tribunal about his current circumstances, the circumstances in China that led him to come to Australia and why he fears return to China now.  He confirmed that his application was prepared with the assistance of his representative and did not want to make any changes to the information provided.

16. He provided the following information about his family composition and current circumstances.  He has parents and [siblings] in his immediate family. He is currently living in [location] with his mother.  He told the Tribunal that he is not working, and is living on savings accumulated from income support payments previously received by his mother and himself from [agencies]. They live in accommodation owned by friends of his mother.  He is not in touch with his father or [other] brother for the last few years.  The last contact he had with his father was more than three years ago.  He understood his father was in [another] Province previously, and then moved from there to another place but the applicant has lost touch with him since and does not know where he lives. His [other] [brother] was with his father in [another] Province, but he does not know where he is now.  The Tribunal asked if he was in touch with his brother via the internet, as he had mentioned in his evidence to the previous Tribunal in 2011.  The applicant said he has not had any contact, even via the internet, with his brother for several years.  When asked why, he said each time he has gone online to make contact, his brother is not there. He has never left him a message. [Another] brother, [Mr A] returned to China from Australia in early 2013.  Initially he went to their hometown in [City 2], where his uncle lives. Then after a short period he went to Fuzhou to pursue compensation relating to his father’s business loss and he was arrested there. 

17. The Tribunal asked him about his brother, [Mr A]’s, arrest and detention.  He said initially he was in [City 2] trying to get a job and survive, but when he was unable to find employment he went to Fuzhou to pursue the compensation owed to his father.  The applicant said he knows this only from the information given to him by his uncle.  His uncle told him that his brother went to the police station in Fuzhou because he did not know where to go for this matter.  Apparently there was no one in charge and his brother began shouting and there was a scene and he was arrested and detained. The applicant told the Tribunal he did not know any more about this matter.  He did not know if his brother was charged with any offence, if there was a court case or if he was sentenced.  He only knows that his uncle told him he was detained since April 2013.  The applicant said he used to be in more regular contact with his uncle, but since last year after his uncle’s wife died and his health began failing, they have not had much contact.   His uncle used to send them money but he has not done so since the middle or end of last year.  The applicant said that apart from health issues, his uncle has no other problems in China.

18. The Tribunal asked the applicant about other relatives he has in China.  He said he has an [aunt] who lived close to them in [City 1].  She still lives there and also spends time in [City 2]. They are in regular contact and [most] recently had contact with her about two weeks ago.  When asked if she has had any problems with authorities, the applicant referred to her son’s (the applicant’s cousin), death.  He explained that he was beaten to death and his aunt tried to seek compensation in relation to that matter two or three years ago.  She went to Beijing and was detained for disrupting the security order.  She told them about this last year.  The Tribunal asked the applicant what connection he believed her detention had to him upon return to China.  The applicant said it had nothing to do with him.

19. When asked why then he feared return to China, the applicant said he was afraid because his aunty told him that people had come looking for them after he came to Australia in 2006.  She told him that they came from time to time, the most recent time they came was two or three years after they came to Australia.  When the Tribunal asked him whether he believes now, 9 years after they came, anyone would be looking for him, he said no, as they are not living there anymore.  When asked why they would have been looking for him previously, the applicant explained that they were looking for his father and when they couldn’t find his father they arrested his mother and detained her. He confirmed that he was not present at that time as he was at school. 

20. The Tribunal asked the applicant about why the authorities were interested in his father.  He said he was told by his mother that his father and cousin had a business [details deleted]. They had a government contract but there was a dispute about a project. The [people] were opposed to the project and later they bombed his father’s [equipment].  His father and cousin sought compensation from the authorities for their loss but there was a conflict which resulted in an altercation.  Following this his father and cousin fled.  This incident occurred in 2004.  The authorities came to their house soon after looking for his father and when they couldn’t find him, they took his mother and detained her for a period.  He understood that the reason they arrested his mother was to bring his father out.  She was released because she suffered a mental issue, for which they later took her to hospital.  The applicant referred to documentation about this that was provided in her previous protection visa application. 

21. He confirmed that since this time, no other family member has been arrested or detained for this reason.  His aunty, who lived close by to them, has never been arrested or detained about this.  She was detained relating to seeking compensation for her son’s death. He died in 2006. 

22. The applicant confirmed that neither he nor his [siblings] suffered any harm as a result of his father’s altercation with the authorities over the compensation for his business. He said they were scared however because the authorities would come to the house and make a mess, looking for his father.  The applicant said this happened several times, in 2004 and 2005, but they never arrested anyone else.  He left China in 2006 with his mother.  His brother, [Mr A], came to Australia in 2007.  [Another] brother left [City 1] around that time to join his father in [another] province. 

23. The Tribunal asked the applicant about the financial documents referred to in the delegate’s decision in his earlier protection visa application which indicated his father had applied for a substantial loan for the purpose of his [children’s] education costs, and these documents indicated his father resided in [City 2] at this time.  The applicant stated that he had no idea about this as he understood his uncle did all the paperwork related to his visa application.  He maintained that his father had fled at this time and was not living in [City 2]. 

24. The Tribunal asked the applicant what he feared would happen to him if he went back now.  He said he feared the same would happen as happened to his brother.  He said he would do the same as his brother and try to seek compensation and they would arrest him.  The Tribunal asked why he would seek compensation if what happened to his brother is true.  He said he would do so because to date they have not been compensated for their loss and are entitled to it.  The Tribunal asked the applicant what is the basis for his claim to compensation for his father’s business. He confirmed that he has no documentation to prove he has or had any ownership interest.  He said he would claim it because it was his father’s business. 

25. The Tribunal put to the applicant that it appeared contradictory for him to claim on the one hand that he feared the authorities because they may arrest him to find his father, and then on the other hand that he would actively seek compensation from the authorities for his father’s economic loss.  The applicant made no comment about this.

26. The Tribunal asked the applicant if there was any other reason he feared harm.  He said he was afraid he would not find work in China.  He was afraid that he would not be able to support himself.  The Tribunal asked why he could not live elsewhere in China as his father and brother had, or in [City 2] as his uncle has been safely able to do.  He said he would be arrested when he goes to seek compensation. 

27. The Tribunal noted that in his application he also referred to being fearful of the [people] and that they stormed his house and appropriated their farmland.  The applicant said he had no idea about this.  He confirmed [people] never came to their house and they do not have any farmland.

28. The Tribunal asked the applicant about his mother’s visit back to China in 2008.  He said that she returned because her mother was critically ill and later died.  She told him that some people came looking for her in Fuzhou but they did not find her.  She was able to enter and depart from China on that occasion without incident. She is not a criminal and is not on any wanted list so she had no problems with authorities on entry and departure.

29. The Tribunal asked the applicant why he failed to mention [Mr A]’s arrest when he made this application in January 2014, given that he claims it occurred in April 2013. He said he told his agent about it and does not know why it was not included.

30. When asked if he wanted to tell the Tribunal anything else, the applicant said he hopes that he can be allowed to remain in Australia so that his mother can get the treatment she needs here.  He said that she was receiving medication before coming to Australia but since coming here she has received treatment and her condition is improving.  The Tribunal noted that he has not provided any information relating to his mother’s health circumstances in this application and it can only consider his claims as they relate to the complementary protection visa application in respect of him.  

    FINDINGS AND REASONS

31. As indicated above in paragraph 4, the applicant was previously refused a Protection visa [in] April 2009 on the basis of the Refugees Convention. Applying the reasoning in SZGIZ, the Tribunal finds that it does not have the power to consider the applicant’s claims under the Refugee Convention criterion in s.36(2)(a) of the Act and has proceeded on the basis that it can only consider his claims under the complementary protection provisions in s.36(2)(aa) of the Act.

32. A summary of the relevant law is set out at Attachment A.

    Nationality

33. On the basis of his evidence to the Tribunal, his Chinese passport, and the delegate’s decision record which indicates that the Department did identify any issue with, and accepted, the applicant’s identity and nationality, the Tribunal accepts the applicant is a national of China and considers China is the receiving country for the purpose of assessing his claims against the complementary protection criteria.

    Consideration of applicant’s claims

34. When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims.  This usually involves an assessment of credibility of the applicant.  When doing so the Tribunal is mindful of the difficulties faced by refugee applicants, including issues relating to use of interpreters, nervousness and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. 

35. The Tribunal is mindful that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true. (See MIMA v Rajalingam (1993) FCR 220) However the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. (see Selvadurai v MIEA& Anor (1994) 34 ALD 347 at 348).

1. The applicant has advanced a number claims that are considered against the complementary protection criteria as follows.

   Applicant’s fears relating to the authorities’ pursuit of his father  

2. The applicant claims his father and cousin had a [business] and undertook [work] for the government.  In 2004, their equipment was destroyed by [people] opposed to their actions and they sought compensation for their loss from the government. The applicant’s father had an altercation with the authorities over this matter and has been on the run ever since.  The applicant claims the authorities came to their house looking for his father and arrested and detained his mother.  She was later released.  He fears that the authorities are still looking for his father and fears arrest and detention for this reason. 

3. The Tribunal notes that the applicant’s evidence relating to this claim has been substantially consistent throughout this and the previous protection visa application. It observes that he was relatively young at the time of the claimed incidents and accepts that he does not have direct knowledge of it, and that he has relied on the account given to him by his mother and other relatives.  Although the Tribunal did not take evidence from the applicant’s mother on this occasion, it has considered evidence she provided in her own application for protection, which was considered in a separate review to the Tribunal (differently constituted) (RRT [reference]).  The Tribunal acknowledges that the applicant’s evidence is substantially consistent with his mother’s account. 

4. On the basis of the consistent accounts relating to this matter given in various previous applications, and the internal consistency of the applicant’s evidence in the present application, the Tribunal is prepared to accept that the applicant’s father and cousin were involved in a [business] and he had an altercation with authorities in the context of a dispute that arose relating to that business.  The Tribunal accepts that the authorities were looking for the applicant’s father after this incident. It accepts that they may have taken the applicant’s mother in for questioning about this.

5. The Tribunal also accepts, on the applicant’s own evidence, that apart from his mother, neither he, his brothers, his aunt or his uncle or any other family members have been arrested, detained or questioned about the whereabouts of his father since then.  The Tribunal notes that the applicant and his mother remained in China, in the same home, for two years after this incident until 2006 when they travelled to Australia. The applicant’s brother [Mr A] was there for another six months before he joined them in Australia. On the applicant’s own evidence, no one in the applicant’s family resides in the house they lived in at that time in [City 1]. He told the Tribunal the last time anyone came by looking for the applicant’s father or his family members was two or three years after the applicant and his mother came to Australia in 2006.  The applicant’s mother travelled back to China in 2008 when her mother was ill.  The applicant told the Tribunal she told him that people apparently came looking for her during this visit, but did not find her. The Tribunal does not accept this claim. It was made for the first time at the hearing before this Tribunal and is not consistent with his evidence provided previously. The Tribunal also considers that this claim is not consistent with, or supported by, the fact that she was able to enter and depart from China without any difficulties. 

6. The Tribunal notes the applicant’s claim, made for the first time at the interview with the delegate and also told to the Tribunal at the hearing, that his aunt was detained two or three years ago in relation to actions she took in Beijing to seek compensation for the death of her son.  When asked what connection her detention had with his return to China, the applicant told the Tribunal it had nothing to do with him.  For this reason, even accepting the possibility that this claim relating to the detention of the applicant’s aunt is true, the Tribunal finds that it is not related to the matter of the interest of the authorities in the applicant’s father and has no effect on the probability of harm he may face upon return to China. 

7. Given that a period of 11 years has lapsed since the incident which led to the authorities interest in the applicant’s father, and there has been no interest shown by the authorities in respect of this matter to any family members residing in China in recent years, the Tribunal is not satisfied there is a real risk the applicant will suffer significant harm for this reason if removed from Australia to China. 

   Applicant’s fears of arrest for pursuing compensation owed to his father

8. The applicant claims that his brother was arrested and detained after he returned to China from Australia in 2013.  He went to Fuzhou to pursue the compensation owed to his father and was arrested and detained for this reason. The applicant claims that if returned, he will also pursue the compensation and he fears the same will happen to him. 

9. The Tribunal notes that the applicant did not mention this claim in his application form lodged in January 2014.  When this was put to him at the hearing, he stated that he told his migration agent about it and does not know why it was not included. The Tribunal does not accept this explanation because if the claim were true, it is a significant claim in support of his application which the Tribunal does not accept would be left out.  The Tribunal considers it more likely that it was fabricated by the applicant at the time of the delegate’s interview to strengthen his claims. The evidence provided by the applicant about this matter has been vague and general.  He told the Tribunal he only knew what his uncle had told him and this was not very much.  The Tribunal notes also that the applicant’s uncle told him his brother shouted at the officers and made a scene and was arrested and detained. No documents have been provided in support of the claim.  The Tribunal considers it implausible that the applicant’s brother would have gone to Fuzhou to seek compensation for his father’s business a decade after the incident which caused the loss. Therefore, on the material before it, and for the reasons stated, the Tribunal does not accept that the applicant’s brother was arrested and detained in April 2013.  

10. Given that it does not accept the applicant’s claim that his brother was arrested and detained for pursuing the compensation claim for his father, the Tribunal also does not accept that the applicant will pursue the compensation if he is returned to China.  When the Tribunal asked him how he will establish his right to pursue this matter, the applicant offered no plausible explanation.  He confirmed that he was a young child at the time of the incident which caused the father’s economic loss and that he had no ownership interest in his father’s business.  He has no documents to support a claim for compensation in this matter.  The Tribunal also considers his claims are internally inconsistent and contradictory.  On the one hand he claims to fear harm from the authorities who are seeking his father relating to an incident arising from his father’s claim for compensation.  On the other hand he claims he will actively seek that compensation himself if returned and fears harm from the authorities for doing so. The Tribunal finds this claim implausible. It does not accept that the applicant will pursue compensation relating to his father’s business loss as claimed and it is not satisfied that there is a real risk he will suffer significant harm for this reason if removed from Australia to China. 

    Claim regarding [people] storming house and taking farmland

11. The Tribunal notes that in his application, the applicant referred to [people] storming his family home and taking their farmland in relation to his father’s [work] for the government.  However when questioned about this claim at the hearing, the applicant stated he had no idea about it.  He confirmed that [people] never came to his house and they do not have any farmland. In light of this evidence, the Tribunal considers this claim to have been abandoned by the applicant.

    Applicant claims he will be unable to find employment if he returns to China and mother will not be able to access appropriate medical treatment

12. At the hearing before the Tribunal, the applicant claimed he will be unable to find employment if returned to China and he will suffer hardship for this reason.  He also claimed that he would be unable to afford appropriate medical treatment for his mother as she has been able to access here.

13. The Tribunal has considered these claims but finds that unemployment and financial hardship do not fall within the defined meaning of significant harm in s36(2A) and s5(1) of the Act.  It can only consider in this application whether there are substantial grounds for believing there is a real risk the applicant, rather than his mother, will suffer significant harm and finds that the claim relating to his mother’s inability to access appropriate medical treatment will not cause significant harm to him, within the meaning of that term in s36(2A). 

14. Therefore, for the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

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

    DECISION

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

    Meena Sripathy
    Member

    
    

    RELEVANT LAW

17. Section 65(1) of the Act provides that a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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 499 Ministerial Direction

18. 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 of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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.

    Complementary protection criterion

19. 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 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: s.36(2)(aa) (‘the complementary protection criterion’).

20. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). 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. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

21. 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.