1411857 (Refugee)

[2016] AATA 3300

1411857 (Refugee) [2016] AATA 3300 (5 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1411857

COUNTRY OF REFERENCE:                  China

MEMBER:David McCulloch

DATE:5 February 2016

PLACE OF DECISION:  Sydney

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

Statement made on 05 February 2016 at 1:22pm

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 who claims to be a citizen of China, applied for the visa on [date] October 2013 and the delegate refused to grant the visa on [date] June 2014.

3. The applicant appeared before the Tribunal on 13 January 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant was represented in relation to the review by his registered migration agent, who did not attend the hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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.

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. 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’).

9. 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. The Tribunal has before it DFAT Country Report – China, 3 March 2015 and DFAT Thematic Report - Unregistered religious organisations and other groups in the People’s Republic of China, 3 March 2015.

10. The issue in this case is the credibility of the applicant and whether, on his accepted claims, he fulfils the criteria for protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background and complementary protection criterion only

11. The applicant arrived in Australia on [date] December 2004 on a Temporary Business visa.  An application for a Protection visa was lodged on [date] January 2005 which was refused by the delegate of the Minister on [date] April 2005. A request for Ministerial Intervention under s.48B of the Act was made on [date] February 2011 and the outcome was ‘not referred’ on [date] March 2011. The current Protection visa application was made on [date] October 2013.

12. The current application is allowed as a result of the Federal Court decision of SZGIZ v MIAC (2013) 212 FCR 235, dated 3 July 2013. This allows a further protection visa application to be made before 28 May 2014 under the complementary protection criterion in a situation whereby the person’s prior protection visa application was made and refused prior to the commencement of the complementary protection criterion on 24 March 2012. This means that the Refugee Convention aspect of the applicant’s claims has been determined and the matter before the Tribunal relates only to complementary protection criterion (section 36(2)(aa) of the Act).

    Claims

13. The relevant forms for the Protection visa as part of the current application indicate the following. The applicant was born in Fuqing, Fujian Province, China on [date]. The applicant is married. The applicant had lived in the same village until his departure for Australia in December 2004. The applicant completed [number] years of primary school. He lists no qualifications.

14. The applicant states that he had been a [vehicle] driver, delivering [items]. to building sites. The applicant had an accident with a person, causing a minor injury. The applicant offered to take the person to hospital, but he declined. Later, this person asked for the payment of a lump sum. The applicant paid a sum of money. The person continued to ask for more payment. The applicant reported this to the police, who said that if he did not make payment he would be charged with a criminal offence. As the applicant could not afford to make further payment, charges were pressed against the applicant. Before the legal proceedings, the applicant obtained the visa for Australia.

15. The [vehicle] was taken by the person he knocked down. As a result, the applicant could not make repayment to his creditors who threatened to take away the applicant’s house and land and even physically harm him, if the repayment was not made.

16. The applicant claims that his family are Christian but that he did not know much about it. He indicated that adherents have gathered at his house. Police advised that they had had an illegal gathering and came to the house for intimidation and harassment. They have to face police interrogation every time they get together.

17. The applicant states that as a result of the matter, he will be jailed by the police, he will be extorted by the person he knocked down and harmed by private creditors as he has not repaid any of the loan that he borrowed. Since the applicant left China, the perpetrators have divided his land and taken possession. On return, the applicant will be persecuted, harmed and mistreated.

18. As part of the first Protection visa application, the applicant provided written claims which indicated the following.  The applicant grew up as a Christian.  His parents used to hold small gatherings at home. When the applicant became older, his mother began to read the Bible to him and he started to understand the basics of Christianity.   When he finished high school, he was a devout. At this time, the government intensified their crackdown on Christianity and underground churches. At the age of [age], when attending a relative’s Easter celebration, police arrived and began searching for materials and arrested the applicant and his father. They were accused being ringleaders. The applicant and others were detained in one cell and given no blankets and a bucket for a toilet and bread rolls to share.  The applicant and others were interrogated separately about participation in the underground church. They were kept in the cell for many weeks. They were made to sign confession papers and promise not to participate in underground churches. When released, the applicant’s father was very weak. The applicant had many bruises on his body. The applicant began to write information about meetings and hand out pamphlets to local youth. He was resentful at government restriction on Christian practices. A meeting was held at a friend’s house. Before the meeting, it was noticed that suspicious cars were parked outside the venue. The meeting was cancelled and participants managed to escape.

19. At this point, in 2002, the applicant intended to apply for a visa for Australia. However, as the applicant went to apply, his father’s health deteriorated. As a result, the applicant decided to delay his trip. Over the next two years, the applicant and the family received many letters informing that  police were checking on movements and warning not to participate in underground church services. Two of the applicant’s friends who were planning to escape overseas were detained and they informed of the meeting. The applicant managed to escape in 2004.

20. The Tribunal has noted the following information provided by the applicant in the interview with the delegate of the Minister with respect to the current application as particularly relevant.  The applicant indicated that he had had [number] levels of primary schooling. He indicated that the [vehicle] he bought cost him RMB 10,000.  He indicated that he borrowed around RMB 7000 - 8000 from the moneylenders and the rest he borrowed from friends and relatives. He indicated that he had only to pay interest of RMB 500-600 per month and had paid no principal.

21. The applicant indicated that when he was approached by the person he knocked over for medical expenses he paid him RMB 4000-5000 which he borrowed from friends and relatives.

22. In terms of his practice of Christianity, the applicant said that he does not have much knowledge of Christianity – he takes part and knows some of the stories. He indicated that he believes in God but being illiterate he does not read the Bible and he does not understand stories from the Bible.

23. The applicant said that the church gatherings happened at both his own house and his mother’s but then changed his evidence to say that they only took place at his mother’s house. The applicant indicated that local police harassed them as meetings were illegal. When asked if he had been arrested, he said that he had been arrested three to four times where he would be detained for one day and released. The police just wanted to stop him gathering. When asked when the last time he was arrested he said it was so long ago he can’t recall. When asked why he made no reference to being arrested in his written statement he said he vaguely remembered putting this in his claim.

    Hearing, credibility, assessment and findings

24. The Tribunal has numerous and significant credibility concerns with the applicant’s claims.

25. First, the applicant indicated in the hearing that the claims made as part of his original Protection visa application in 2005 were made up by his agent.  This goes to the applicant’s credibility both in terms of his current claim’s based on Christianity and more generally.

26. The applicant indicated he told his agent about his situation but the agent put down his own information. This is what is said to explain the various inconsistencies between the original Protection visa application and the current claims.

27. Those inconsistencies are as follows.  The first claim indicates that the applicant was detained on one occasion when he was [age] (which would mean in [year]) for several weeks, and no other instances of detention were referred to. In contrast, the applicant’s evidence in both the hearing, and from the interview with the delegate, is that he was arrested and detained three or four times from 2002. Each time, the applicant would be detained for approximately one day.  The applicant indicated in the hearing that the reason that authorities started to take an adverse interest in the home church gatherings was due to the fact that the man who he had knocked down on his motorbike had told the police of the church gatherings, to make life difficult for the applicant. The applicant indicated there had been no adverse interest by authorities in church activities prior to this point in time.

28. Further, the original application indicates that the applicant attended high school and was a devout Christian by the end of high school. In the current claims, the applicant indicates that he attended only [number] years of primary school, and he has never been devout, only having a very basic knowledge of Christianity.

29. The Tribunal put to the applicant that it had difficulty accepting that claims in 2005 would have been made up on his behalf, if the truth of the matter was that the applicant had been subject to multiple arrests and detentions, in the period immediately prior to his coming to Australia. It does not make sense that the claims actually forward would not refer to such recent instances of harm and instead have referred to an arrest that happened 10 years before, which is now not claimed to have happened.

30. The applicant said that he did not know why it is that the true claims had not been included in the 2005 application.

31. The Tribunal does not think it plausible that the applicant, or his agent, would not have put forward claims that the applicant is now making in relation to the practice of his Christianity, and the difficulties that he faced from 2002, if those claims were true. The Tribunal considers that the only basis on which false claims would have been put forward is if the applicant did not have his own valid claims.  The Tribunal draws significant adverse inference from the failure to make his current claims relating to Christianity in the 2005 application.

32. Secondly, the late provision of claims of harm based on the [vehicle] incident is undermining of the truth of those claims as a source of harm, in these circumstances of immigration applications made by the applicant. 

33. The claimed harm due to owing money on the loan would not have been for a Convention reason and therefore that is a legitimate basis for that claim not to have been part of the 2005 application. However, in relation to the harm relating to the [vehicle] incident, the applicant currently claims that the reason why authorities took action in relation to house church gatherings in 2002 was because the person who he knocked over told authorities about the meetings, to make life difficult for the applicant. That provides a connection between the [vehicle] incident and the harm based on Christianity. The Tribunal considers it reasonably likely that the original application would have made reference to the [vehicle] incident being the cause of adverse interest by authorities because of his Christianity, if that were true, given that it would have been inexorably tied up with the claim of harm on the basis of religion.

34. The applicant in response in the hearing reiterated that this agent in 2005 simply put his own claims. As indicated, the Tribunal does not consider this plausible unless the applicant himself did not have valid claims.

35. Thirdly, there is an inconsistency within the current claims on the basis of Christianity in relation to arrests and detention. The written claims indicate that police have intimidated and harassed the applicant, and that they have to face interrogation every time they get together. However, no mention is made in this written statement of four arrests and detention for a day. Whilst the reference in the written claims to interrogation could be understood to include an arrest and detention, the Tribunal is inclined to think that if there had been actual arrests and periods of detention this would have been specifically referred to in the written claims. The Tribunal draws moderate adverse inference from this omission.

36. Fourthly, the applicant has been inconsistent in terms of where church meetings occurred. The Tribunal put to the applicant, pursuant to the procedural requirements of s.424AA of the Act, information contained in the interview with the delegate of the Minister with respect to the current application. In that interview, the applicant is asked where Christian meetings take place.  The applicant responded that they usually occurred in his own house and in his mum’s house.  Later in the interview the applicant says that the meetings only took place in his mother’s house. In the Tribunal hearing, the applicant indicated that the meetings only took place in his mother’s house. When asked to explain why in the interview he initially referred to meetings taking place in his own house as well, the applicant said that his mother lives next door to him and that is the source of confusion.

37. The Tribunal considers that the applicant was quite clear in the interview and initially said that some meetings took place in his own house. His written claims also state that the meetings took place at his own home, with no mention of his mother’s. His later claims that this was not correct is undermining of his credibility. The Tribunal does not consider that the applicant could be confused on the basis of he and his mother living near to each other. The Tribunal draws some adverse inference from this inconsistency.

38. Fifthly, there are number of plausibility concerns with the claim that the applicant is being pursued for an outstanding loan he used to buy his [vehicle].  The applicant, in the hearing, confirmed that the amount borrowed was RMB 7000-8000 and that he was paying interest of RMB 500-600 per month. The cost of the [vehicle], as indicated by the applicant in the hearing was around RMB 13,000, and the remainder of the money was borrowed from friends and relatives. The Tribunal pointed out that the interest rate on the loan was over 80% per annum.  The Tribunal noted that the applicant had claimed that the loan was secured over his house and land and over the [vehicle]. The Tribunal indicated to the applicant that it found it difficult to accept that such a high interest rate would be charged if security for the loan was being provided. The applicant did not provide a meaningful response to this concern.

39. The applicant gave evidence to the Tribunal that when, several months after the [vehicle] had been bought, the man who he knocked over demanded compensation for his injury. The applicant paid him RMB 4000-5000.  The applicant indicated that he had RMB 1000 as his own savings and the remainder borrowed from friends and relatives. The Tribunal indicated to the applicant that it had difficulty accepting that, if he had access to these savings, as well as money be could borrow from friends and relatives, that he would not have used this money to either defray the amount he needed to borrow from loan sharks for the [vehicle] in the first place, or at least used his own savings to pay down some of the principal to avoid having to pay the exorbitant interest rate. The applicant said he needed to retain some money for his living expenses. He did not otherwise explain why he could not have borrowed more money from friends and relatives in the first place. The Tribunal does not think it plausible that if friends and relatives were willing to lend approximately RMB 3,000–4,000 to the applicant several months after the purchase of the [vehicle] that more money would not have been borrowed from them in the first place to buy the [vehicle] rather than obtain loan at an exorbitant interest rate.

1. The applicant was not able to provide the Tribunal with any information as to how much he currently owes to the loan sharks.  He said that it would be a lot, because of interest. The Tribunal noted to the applicant that he claimed that these loan sharks had evicted his family from their home. It indicated that, surely, at that point in time they would have indicated to his family and by them to the applicant how much was owed. The Tribunal does not consider it plausible that the applicant would have no idea of the amount owed, particularly at the point of time when his family were evicted when it would be assumed the applicant would be doing everything he could to pay off the loan to avoid that happening.

2. The Tribunal explored with the applicant’s own capacity from earnings in Australia to repay the loan. The applicant indicated that after several months in Australia he started working casually in construction. He said that he would work three to four days per week and earn on average $2000 per month. He indicated that his rent expenses were $150 a week.  He said that he sent money back home including for his children’s education expenses. He said he was not in a position to pay off the loan.  The Tribunal put to the applicant it had difficulty accepting as credible that he would not have made efforts to pay off the loan given its relatively modest amount in Australian terms, given that the consequence of lack of repayment was repossession of the applicant’s home and land. This caused the applicant’s family to be evicted from their home.  The applicant said that his priority was his children’s education.  The Tribunal is not satisfied that that the applicant would not have balanced priorities, with a key priority being to repay the loan to avoid the family being evicted.

3. The Tribunal is not persuaded that the applicant is being pursued by loan sharks for an outstanding loan. The applicant’s evidence about securing a loan from loan sharks at a usurious interest rate is not plausible if friends and relatives had the capacity several months later to lend to the applicant at least half of the amount borrowed. The interest rate on the loan is not plausible if the [vehicle] and the applicant’s home and land was used as security. 

4. The applicant’s lack of any specific information as to how much is owed is not plausible to the Tribunal. The Tribunal considers that the loan sharks would have made quite clear to the applicant’s family how much was owed when they evicted his family from their property. If money continues to be owed, the Tribunal considers that the applicant would be aware of how much.

5. Whilst the Tribunal acknowledges that living expenses in Australia are high and the applicant was earning a reasonably modest income, it considers that he would have made it a key priority, on beginning work in Australia to pay off, at least in instalments, the principal of the loan.  The applicant does not consider it plausible that the applicant has not made appropriate arrangements to pay the loan, if it exists as claimed, to prevent his land and home being taken and his family evicted.

6. Sixthly, the applicant has been inconsistent in relation to a key aspect of his claims concerning harm from a man who he knocked over in his [vehicle]. This relates to the claim that this person has instituted legal proceedings against the applicant. The applicant’s written claims as part of the current Protection visa application specifically say that legal proceedings or charges were commenced on the basis of not making a payment to this man. It is indicated that, before they proceeded, the applicant obtained a visa for Australia.  In contrast, in the Tribunal hearing, the applicant confirmed the evidence given in the interview with the delegate that there were no legal proceedings.  When the Tribunal sought to confirm this again, the applicant appeared to contradict himself by saying that there were charges related to the Christian gatherings as instigated by the man he had run over. When the Tribunal sought to clarify whether there were charges relating to the compensation he indicated that there were not. The Tribunal draws an adverse inference from the inconsistency in this evidence.

7. Seventhly, the applicant’s evidence concerning requests for compensation by the man that he knocked over was not plausible to the Tribunal. The applicant indicated that when he paid the RMB 4000 – 5000, he was simply told by this person that there was injury to his leg that involved expenses. When the Tribunal asked the applicant if he sought further details and sought to see medical reports and information about the costs of treatment, the applicant said that he was not allowed to see this. The Tribunal finds it very unlikely the applicant would have paid this amount without evidence of diagnosis and expenses. The applicant said he was bullied by this person because he was from a large family. Even accepting this, the Tribunal does not consider the applicant would have handed over this amount of money without  some further information about the course and cost of treatment.

8. The applicant indicated in the Tribunal hearing that when he was subsequently asked for a further amount of RMB 30,000-40,000 he was similarly provided with no detailed information. He was told that there was a fracture in the bone.

9. Eighthly , the applicant, in the Tribunal’s view, has not being consistent concerning the claim that this person who he knocked over took the applicant’s [vehicle] as compensation, a claim made in the written statement. In the hearing, on at least two occasions, the Tribunal asked the applicant whether additional compensation had been received by this man beyond the payment of RMB 4000-5000, including being compensated in other ways. The applicant made no reference in response to this questioning to a [vehicle] being taken from him as compensation. When the Tribunal put to the applicant’s prior evidence about the [vehicle] being taken, he said that this did happen. Given the multiple questions on this issue to the applicant and the lack of the applicant spontaneously referring to the [vehicle] being taken as part compensation, causes some credibility concerns as to the truth of this claim.

10. The cumulative effect of these eight areas of concern identified with the applicant’s evidence are significant. They cause the Tribunal to not be satisfied as to any substantive aspect of the applicant’s claims. The Tribunal is not satisfied that the applicant was a practising Christian in China in a house church who suffered any adverse interest from authorities either in terms of harassment, arrests or detention. The Tribunal is not satisfied that there is an outstanding amount to loan sharks that is currently being sought by the loan sharks of the applicant or his family, or that the loan sharks are seeking to harm the applicant or his family. The Tribunal is not satisfied that the loan sharks have repossessed the applicant’s home and land.  The Tribunal is not satisfied that the applicant is being pursued for compensation by a man who he knocked over for compensation or that there are charges or legal proceedings against the applicant in relation to the matter. The Tribunal is not satisfied that this person told police about the applicant’s involvement in house church activities which caused the police to harass, arrest and detain the applicant.

11. Given those findings, the Tribunal is not satisfied that there is a real risk of the applicant facing significant harm based on: police taking adverse interest in the applicant as a result of the practice of Christianity, based on past adverse interest; loan sharks seeking the repayment of money from the applicant and/or seeking to harm him; a man who the applicant knocked down pursuing the applicant for compensation/extortion and either the launching of legal proceedings or charges being laid against the applicant in relation to the incident, or any other harm from this person.  The Tribunal is not satisfied that there is a real risk of the applicant being jailed or otherwise harmed either in respect to the practice of his Christianity, based on past adverse interest, money being owed, or due to any road accident that occurred.

12. The Tribunal is prepared to accept that the applicant is a Christian, but with little extensive understanding or practice of the religion. The applicant has claimed that he has attended church occasionally in Australia, which the Tribunal is prepared to accept. The Tribunal is prepared to accept that the applicant might engage in church activities on return to his home village. As the Tribunal has found, it is not satisfied there has being any adverse interest by authorities in any Christian practice has undertaken in his home village. In the hearing, the applicant provided no evidence of authorities continuing to take adverse interest in church activities in the village. He said his mother only now prays at home due to her age. He indicated that his wife rarely attends church. He said that he is not sure whether he would practice his religion on return. The Tribunal considers that any practice of his religion on return would be limited and it does not consider that the applicant is particularly committed to his religion. The Tribunal is not satisfied, based on past lack of adverse interest by authorities in religious practices in his village, that there would be any future adverse attention by authorities, or a real risk of significant harm, as a result of the applicant practising Christianity in his village in a limited way should he return to China.

13. In summary, the Tribunal is not satisfied that there are 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 for any of the reasons claimed, including: police or other authorities taking adverse interest in the applicant as a result of the practice of Christianity; loan sharks seeking the repayment of money from the applicant and seeking to harm him or take over his land; a man who the applicant knocked down pursuing him for compensation/extortion and either the launching of legal proceedings or charges being laid against the applicant in relation to the incident, or any other harm from this person. The Tribunal is not satisfied that there is a real risk of the applicant being jailed either in respect to the practice of his Christianity or due to any road accident that occurred.

14. 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)(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.