1412253 (Refugee)

[2015] AATA 3253

1412253 (Refugee) [2015] AATA 3253 (30 July 2015)

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DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1412253

COUNTRY OF REFERENCE:                  China

MEMBER:Meena Sripathy

DATE:30 July 2015

PLACE OF DECISION:  Sydney

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

Statement made on 30 July 2015 at 4:30pm

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 arrived in Australia [in] April 2009 as the holder of a Tourist visa and on a passport issued to him by the government of the People’s Republic of China (China). He made an application for a Protection visa [in] April 2009 that was refused by a delegate of the Minister for Immigration [in] August 2009, and on review by a differently constituted Tribunal on 31 December 2009.  He appealed that decision to the Federal Court and the application for judicial review was dismissed [in] April 2010.  

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] October 2013. That application was refused by a delegate of the Minister for Immigration [in] June 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 of [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. He gave two addresses in Fujian county that he had resided in the past 10 years, in Minqing County and Fuqing County.  He provided details of his wife and[children], and his mother who all reside in China. He is educated to [a certain] school level, completed in [year] in Fujian province. He stated that he was self-employed, and provided no other details of his employment in his application.    

8. The applicant holds a Chinese passport, which was issued on issued [in] 2013 by the Consulate General in [Australia] and is valid until 2023.  

9. The applicant stated in his application that he fears persecution by the authorities and also harm from villagers who are seeking to appropriate his family’s land.  He claims that his brother was arrested in 2008 on charges of arson allegedly committed in 2000 and he was sentenced to three years imprisonment and because of this the applicant has been on the run ever since.  He says that villagers had connections with the government and want to appropriate farmland that belongs to his family and his family are opposed to this. He claims that the connections the villagers have with government led to his brother being arrested and jailed for arson. The applicant fears that the villagers have asked the authorities to arrest and charge him with the same. 

   Previous Protection visa application

10. In his first protection visa application in 2009 [the applicant] said that he feared persecution from the Chinese authorities because he had been actively organising protests against the corrupt Communist dictatorship.  He claimed that his father and [brother] were involved in a serious car accident caused by drunken police officers in 2005, and his father later died as a result of that accident.  When his brother attempted to sue the police in relation to the accident he was arrested for inciting anti-government activities and sentenced to three years reform through labour.  [The applicant] also claimed in his previous application that his other brother was arrested and accused of inciting a strike and disturbing social order and sentenced to three years in a labour education camp in March 2008 in connection to an attempt to seek compensation for a work injury sustained by his wife.  After these incidents, from April 2008 to January 2009, [the applicant] claimed he began to print and distribute anti-government pamphlets with a group of friends and relatives, and he fled the country in April 2009 when he came to know that the police were investigating the distribution of the pamphlets.  He claimed that two of his friends were arrested and questioned about the pamphlets in March 2009 and that the police searched his house in April 2009, after he had left, and interrogated his wife. 

11. At the review before the Refugee Review Tribunal (differently constituted) relating to the 2009 application, [the applicant] provided a number of documents in support of his claims about his brothers’ imprisonments.  The Tribunal identified numerous inconsistencies between [the applicant]’s oral evidence and the documents he had provided in support, and noted independent information regarding widespread practice of irregular and improper issue of documents in China. For these reasons, the Tribunal did not accept that the applicant was telling the truth about the claims he made. It did not accept that [the applicant]’s father died as a result of a traffic accident caused by drunken police as he claimed, nor that either of his brothers were arrested and imprisoned on false charges because they separately tried to pursue claims for compensation or justice.  The Tribunal did not accept [the applicant]’s claims relating to the distribution of anti-government pamphlets or that he was wanted by the PSB in relation to that matter.

    Interview with Delegate

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

13. The applicant acknowledged that the claims made in the present application are substantially different claims he raised in his previous protection visa application and before the previous Tribunal and told the delegate he did not want those claims previously made considered in the present application.

14. He said that prior to coming to Australia in April 2009 he was living for one year in Anhui Province and working in a [factory].  He moved there after his brother, [Mr A] was arrested in relation to the arson charges. 

15. The applicant submitted two untranslated documents with his application, and described the contents of these to the delegate.  One was a Certificate of Release relating to [Mr A] who was sentenced to three years imprisonment by [a] Court [in] April 2008, and released early for good behaviour [in] April 2010.  The second document was the court’s decision explaining why the brother was guilty. The Tribunal notes that accredited translations of these documents have never been provided to the Department or the Tribunal.

16. The applicant told the delegate how and when he obtained his previous passport in China.  He said he obtained it in 2008 or 2009, when he was residing in Anhui Province, where he had been for almost a year since March 2008. He paid a friend to arrange it as he did not dare to go home to apply for it.  He left Anhui province just before departing for Australia, travelling from there to Shanghai.  He said he did not travel back to his hometown before leaving China. He said he had no troubles with the authorities when departing the country. The friend who arranged the passport had a relative who worked at the PSB.  He paid the friend RMB 3,000 to get the passport. The money he paid was earned by him when he worked at the [factory] in Anhui province for that year.  His last address before leaving China was the [factory] in Anhui Province. 

17. [The applicant] told the delegate the cost of obtaining his visa to travel to Australia was more than RMB 300,000.  When the delegate put to him that in his 2009 application he said he paid RMB 38,000 for the visa, he said that he paid this amount to his friend for introducing him to the travel agency, and he paid RMB 300,000 to the travel agency for the visa. He said the money for this came from his father’s [business] that he and his brother worked in. The delegate asked if this business continued to operate.  He said that it ceased operations a year after his father died.  When asked when his father died, he said it was a long time ago now.  When pushed for a date he said it was around 2007. The delegate pointed out in 2009 application he said he worked in this business right up until he came to Australia. In response [the applicant] agreed but said he then went to Anhui province, but even from there he was helping them to get customers.

18. Regarding his reasons for coming to Australia, [the applicant] told the delegate that in the year 2000 his other brother accidently burned some farmland on the mountain. The land was barren and there not much damage, so the government didn’t punish them at that time.  But in 2008, the owner of the mountain became interested in the family’s land and offered them compensation which was too low and they were not interested. After that the owner of the mountain got support from the officials to confiscate their land and the officials had a plan to build a [farm] on the land. Because his family did not agree to sell the land, the owner of the mountain managed to sue his brother for burning the mountain and he was arrested and sentenced.  When asked why the villagers or authorities are interested in his land, he said it was because the land is flat and near the water and so it is less costly to develop. To date the land has not been appropriated.

19. He is afraid that if he returns to China the villagers, together with the authorities will find him and make his life difficult because they still have not appropriated the land. He believes they are still interested in him even though his brother has since been released. He fears harm from the village head and secretary of the village and the PSB. He is afraid of being arrested and sent to prison.

20. [the applicant] confirmed that his mother, [siblings and] a wife and [children] all live in China. His wife lives with her father in [Town 1] Fuzhou.  When they were married they lived together in [Village 2] Fuzhou City, from 2005 until he went to Anhui in 2008.  He said he makes phone calls to his wife occasionally. In response to a question about what problems with the authorities in China any of his relatives have had, [the applicant] said [his] brothers have had problems and also his [children] have not been   allowed to go to school in [the] village.  He does not know why but believes maybe the officials in Fuzhou city informed the village.  For this reason his children can only study in his father in law’s village and he has to pay extra for them to study outside the area of their residential address.

21. Regarding his father’s death, [the applicant] said he was involved in a car accident and died soon after that.  This was around 2007.  He does not have a death certificate for his father.  Only evidence of his father’s death is the cancellation of his household registration.  He has no documentation regarding father’s accident or death. His brother, [Mr B], suffered some fractured bones in that accident.  [Mr B] had a conflict with a police officer after father’s death. He was arrested and sentenced to 3 years in 2007.

22. Regarding his claims about his other brother and sister in law, his sister in law had a work injury at the factory and had sought compensation from the factory.[Details deleted]. In relation to documentation relating to this incident [the applicant] said he has evidence that she is [disabled]. Her accident occurred a long time ago, he can’t recall the date. 

23. His brother [Mr A] was charged by officials when he went to argue with the manager of the factory.  They would not admit their responsibility. He was charged with organising workers to disturb public order.  He eventually went to jail for three years about the arson case. The delegate put to him that he provided documents about this brother’s charges in 2008 for 3 years in relation to the protest about his wife’s injury, but now he is saying he went to jail regarding the arson charges in the same period.  In response [the applicant] asked if the names on the documents were mistaken, between the two brothers. He had no further comment.

24. [The applicant] told the delegate the reason he did not make the claims about the land appropriation and his brother’s arrest and imprisonment on arson charges in his 2009 application was that his previous agent told him these claims were not relevant to his protection visa claims. His agent told him the anti-government activities and the documents he provided would be enough for that application. He said his current agent told him that it is relevant to the complementary protection claims.   

    Evidence to the Tribunal

25. [The applicant] appeared before the Tribunal on 14 July 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 migration agent did not attend the hearing.

26. He showed the Tribunal a copy of his passport, and confirmed his date of birth, details of his family and past residence in China.  He confirmed a migration agent assisted him prepare his (current) application for protection.  He confirmed the accuracy of the information in the application and said he did not want to amend or change any of that information. 

27. [The applicant] told the Tribunal the following information about his background in China.  He was born in [Village 3], Minqing County and lived there until he was about [age] or [age] years old.  Around then he moved to [Village 2], [Town 1], Fuqing County with his mother and stayed there with her for six or seven years.  He explained that his parents divorced and he moved with his mother.  His [siblings] stayed with his father in [Village 3]. In 2005 he married in [Village 2].  He has[children].  He said his wife and [children] lived in [Village 2] when he was in China, but are now living with his father in law in[Town 1], Fuqing.  He said they moved there at the time his [children] started school because for some reason they were unable to register at school in [Village 2], although this is the place of their household registration. 

28. For some years in this period the applicant said he worked with his father and brother, [Mr B], in a [business] in Fuzhou.  He could not recall the exact years but said that it was for two to three years.  In 2008 he moved to Anhui Province and lived there until he travelled to Australia in 2009.  He said his relative opened a [factory] in Anhui and he worked there. 

29. The Tribunal asked the applicant about his father’s death.  He said that in the period that he was working with his brother and father in the [business], his father was involved in a car accident.  He later died in hospital from injuries sustained in the accident.  The applicant said that this occurred in the same year he married, 2005.  He said he was mistaken at the department interview when he said it happened in 2007.  He later thought about it and now remembers that his father died in 2005, and later that year he married.  He said he continued to work with his brother in the [business] for another year after that.  When asked why he stopped working in the business, the applicant said that a police car was involved in the accident that caused his father’s death, and after that his brother kept trying to seek justice for his father and got into arguments with the police.  His brother was eventually arrested and imprisoned on grounds of ‘gathering people’.  This happened around the end of the year that his father died. 

30. [The applicant] said he remained in [Village 2] for about a year after that, and then went to Anhui Province.  The Tribunal at this stage put to the applicant that he did not mention living in Anhui Province in his application form in the current application.  He said he was not asked by his agent about it.  The Tribunal also pointed out that he did not mention living in Anhui province at any stage in his previous application for protection, and in fact he provided contradictory information about his place of residence, and activities at this time.  The applicant had no comments to make about this.

31. [The applicant] told the Tribunal he went to live in Anhui Province in 2008 because of something that happened to his [brother] [Mr A] at that time.  This brother previously lived in their hometown village,[Village 3].  He was working as a farmer for some years.  Sometime ago, around 2000, he was working some farmland and conducted a burning off exercise and the fire got away and caused damage to a nearby mountain.  Some people’s land and trees were damaged.  At this time, when the applicant was living with his mother in[Village 2], he helped his brother go into hiding in Fuqing for a short period.  After about one month, nothing happened and [Mr A] returned home and continued his life normally.  After this, he went to live and work in Changle.  The family farmland was farmed by relatives from this time. 

32. The Tribunal asked [the applicant] what happened to [Mr A] in 2008.  He said at this time the secretary and head of the village expressed an interest in acquiring the land next to their house in[Village 3].  It is a close to the river, and a large plot of some [number] square metres.  [Mr A] was offered compensation for the land but he did not agree with the amount.  He went to ‘the government’ to complain.  The Tribunal asked [the applicant] to elaborate about this, but he was unable to provide many details. He didn’t know the specific amount of compensation that was offered, or details of when and where his brother was taking his complaints.  He said he complained to ‘the government’ but they did not do anything for him. He said because of his brother’s actions in going to ‘the government’ the villagers who were interested in his land brought up the incident of the fire that occurred in 2000.

33. The Tribunal asked what was the connection between that incident and these villagers.  He said that one of these people had land that was damaged in the fire.  [Mr A] was subsequently arrested and detained by local police.  The applicant said that at first no reason was given for the arrest. Later they said it was because he was disrupting the social order and gathering people.  He was sentenced to three years in jail, and in the court proceedings the arson incident is named as the charge.  The applicant referred to the documents submitted with the application which was a Certificate of Release relating to his brother[Mr A].  The Tribunal noted there was no translation of these documents on the file. It noted that this was pointed out to the applicant by the delegate at the hearing, and he was invited to provide a translation. The applicant stated that his agent has a translation and he thought it had been provided.  The interpreter assisted the Tribunal by reading the Certificate of Release document.  It stated the applicant’s brother’s name, and that he had been sentenced [in] May 2008 to three years imprisonment in respect of a charge relating to a fire.  [The applicant] told the Tribunal the second document is a sentencing report relating to the same matter.  He was again invited to provide a translation if he wished to rely on this document.

1. The Tribunal asked [the applicant] how this incident affected him.  He said at that time he was going back to [Village 3] to help his brother regarding this attempt to take their land.  He explained that he is affected because he is also an owner of the land.  His other brother left the land when he married, but [Mr A] and himself are the owners together. He went back there twice, once to talk with the villagers about the compensation offer and a second time to make a complaint to the government, with[Mr A].  The Tribunal put to [the applicant], if he was involved as he describes, he should be able to provide more details about this matter.  It  again asked him how much the compensation offer was and to elaborate on the complaint process.  He said the amount was several thousand, maybe three or four thousand. There was nothing in writing, it was all verbal.  Everybody in the village knows that they own the land. He reiterated that they complained to ‘the government’ because that is how it is done in China.

2. [The applicant] told the Tribunal he went to Anhui after his brother was arrested.  He was worried that because he is also an owner of the land, they will try to do the same to him.  From Anhui, he left China for this reason.  He did not specifically want to come to Australia, he just wanted to leave China.

3. The Tribunal asked [the applicant] what he believes will happen if he returned to China. He said he is afraid of the head of the village and the secretary of the village.  He believes they will try to send him to jail, as they did to his brother.  He believes this will happen because he still owns the land which they are interested in and they want revenge because he and his brother won’t agree to sell it.  He believes they will fabricate some charges against him because this kind of thing happens in China.

4. [The applicant] confirmed that the land is still in his family’s possession. His brother was released from jail in 2010 and went to live with his [child] in [Guitan] County.  He rarely goes back to [Village 3].  He has not had any contact from the villagers, because he rarely goes back.  The Tribunal asked how he knows that they are still interested in the land.  He said he has friends there and they have told him that from time to time some people come to the land and ask his relatives about the whereabouts of him and his brother. 

5. The Tribunal asked [the applicant] if there is any other reason he is afraid to go back to China.  He said that the school in his area won’t take his children.  He doesn’t know why.  He has not asked his wife about it.  The children have been able to attend school in his father in law’s village by paying fees. 

6. [The applicant] confirmed that, apart from the issue with registering his children for school, he has no other problems in[Village 2], the place of his household registration.  The Tribunal asked why he could not return there.  He said if he went back to China he would want to go to [Village 3] because that is his home village. The Tribunal put to him that he had not lived there for many years and it is not the place of his, or his family’s, household registration. In response [the applicant] reiterated that his land is in[Village 3].  He told the Tribunal he has no intention of selling the family land because it is something from his late father.  He stated that the villagers would not give them much money for it. 

7. At the conclusion of the hearing the Tribunal put to the applicant that it had concerns about inconsistent and contradictory information and claims made in his previous application and this application and explained that these inconsistencies and contradictions may lead the Tribunal to have concerns about the truthfulness of his evidence both then and now. It explained that if the Tribunal did not accept his evidence as truthful it may not accept his claims and this may contribute to the reasons the Tribunal for finding there are no substantial grounds for believing he is at risk of significant harm if returned to China.  The Tribunal told the applicant it would write to him following the hearing and give him particulars of relevant information and he would have an opportunity to comment or respond.  When asked if he wanted to make any comment on this issue regarding his credibility or provide any other information or explanation at this stage, the applicant indicted he had no comment.

8. On 15 July 2015 the Tribunal wrote to [the applicant] under s424A of the Act inviting his comment or response on information which would, subject to his comment or response, be the reason or part of the reason for affirming the decision under review.

9. On 26 July 2015 the Tribunal received a statutory declaration made by [the applicant] on 25 July 2015 in response to the Tribunal’s invitation.  In this declaration he refers to a number of the claims made in his previous application. It provides the following information:

   ·In 2005 his father and [Mr B] collided with a police car.  The police were drunk at the time and his father was killed because of the accident. [Mr B] filed a complaint and tried to seek compensation which led to his arrest on a charge of social security disturbance. 

   ·He lived in Fuqing city but worked in Fuzhou, but that after his father died he went to Anhui.  Before going to Anhui he was involved in distribution of pamphlets against the authorities and government for about 3-4 months and then went to Anhui. 

   ·He refers to the detention and interrogation of his friend in March 2009.  After he escaped overseas his relative was arrested and confessed about the pamphlet distribution and his wife was interrogated, and subsequently went into hiding in [Town 4] for a while.

   ·In about August/September 2005,[Mr A]’s wife suffered a workplace injury in Changle county and [Mr A] sought compensation. As a last resort he organised a workers strike and, because of the close connection between the bosses and the police, he was arrested, charged and jailed for 2 years, with one year reduction in sentence. 

   ·In 2008 [Mr A] got into trouble with village officials after his land was seized.  In May 2008 he was arrested, charged and jailed for three years. He was imprisoned in [a] Prison.

   ·[The applicant] declared that he was involved in the pamphlet distribution against the government for his father’s death and also worked with [Mr A] against the village officials against land seizure. In July or August 2008 he went to Anhui province and then came to Australia.

   Independent information

10. The Tribunal has considered independent sources of information about issues relating to land expropriation and compensation in China and difficulties in pursuing complaints about such matters.

11. A 2012 Amnesty International report cites Chinese academic studies that indicate between 1991 and 2003, more than half a million families in Beijing were forced from their homes.[1] The same studies indicate that between 1990 and 2010, local authorities expropriated over 16.5 million acres of land.[2] A 2011 study by Landesa Rural Development Institute[3] found that land had been expropriated from 43.1 per cent of all rural villages since the late 1990s.[4] The same study indicated that since 2001 the number of cases of land expropriation has been steadily rising.

    [1] Amnesty International 2012, Standing Their Ground, ASA 17/001/2012, October, p.5 < Accessed 11 October 2012 <CIS24185>

    [2] Amnesty International 2012, Standing Their Ground, ASA 17/001/2012, October, p.5 < Accessed 11 October 2012 <CIS24185>

    [3] Landesa Rural Development Institute is a US-based non-government organisation founded in 1966. It aims to secure land rights for the world’s poorest families.

    [4] Landesa Rural Development Institute 2012, Insecure Land Rights: the Single Greatest Challenge Facing China’s Sustainable Development and Continued Stability, 26 April, Section 3 < Accessed 3 October 2014 <CIS961F9401917>

12. A number of sources indicate that land expropriation and other incidents involving citizens being forced from their homes remain an issue in China. The US Department of State reports that, during 2013, disputes over land expropriation in China ‘continued to trigger large-scale clashes between police and protesters’.[5] According to Freedom House, ‘an estimated four million disputes resulting from land grabs and property demolition occur each year’, and ‘Residents who resist eviction, seek legal redress, or organize protests often face violence at the hands of local police or hired thugs’.[6]

    [5] US Department of State 2014, 2013 Country Reports on Human Rights Practices – China, 27 February, Section 2b < Accessed 7 March 2014 <CIS27374>

    [6] Freedom House 2014, Freedom in the World 2014 – China, 23 January, Section G < 6 June 2014 <CX321620>

13. Although payment of compensation is required by law and under the constitution, a Landesa Rural Development Institute survey found that 22.5 per cent of farmers received no compensation for their expropriated land.  In 12.7 per cent (of all seizures) no offer of compensation was made while in 9.8 per cent of cases, compensation was promised but not paid. 

    FINDINGS AND REASONS

14. 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.

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

    Nationality

16. 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

17. 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. 

18. 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).

19. The applicant has advanced the following claims in the present application: he claims that villagers are seeking to appropriate his family’s farmland. His brother [Mr A] refused to accept the offer of compensation that was made and when he sought to complain about the matter to the local authorities, they laid charges against him relating to an arson incident that took place in 2000.  He claims his brother was arrested, charged and sentenced on these arson charges in 2008 and served 2 years in jail. On the basis of what he claims happened to his brother, the applicant says he is afraid of returning to China because he believes the local authorities will fabricate charges against him and arrest and detain him.  He believes this will occur because if he returns he will continue to oppose the appropriation of his family’s farmland.  When asked if there was any other reason he cannot return to China, the applicant said his children were not permitted to attend school in the area where they are registered, but he does not know why they were refused.

20. For a number of reasons which the Tribunal explains below, it does not accept that the applicant is telling the truth about his and his family’s circumstances in the past in China.  The Tribunal does not accept that his family land was, or is, at risk of being appropriated.  It does not accept that the applicant’s brother [Mr A] was arrested on arson charges in 2008. It does not accept that the authorities and villagers are interested in him for this reason. There are numerous inconsistencies, contradictions and omissions in the applicant’s  evidence given to the Department and Tribunal in the current and in his previous protection visa application process that leads the present Tribunal to find him to be an unreliable witness and it does not accept that he has given truthful evidence in the present application and it rejects his claims. 

21. [The applicant]’s claims in this application are significantly different and contradictory to the claims he made in his previous protection application in 2009.  For example, previously he claimed he feared persecution in China because of his activities distributing anti-government pamphlets in the period from April 2008 to January 2009.  He claimed that he became involved in these activities because of the experiences of his [brothers] who were wrongfully arrested and sent to labour camps.  He gave detailed oral evidence to the Department and Tribunal about these matters, and submitted various documents in support of the claims.  In relation to his brother[Mr A], he gave evidence in that application about[Mr A]’s arrest in January 2008 and imprisonment in March 2008 for crimes of disturbing the social security, arising from attempts made by him to seek compensation for workplace injuries sustained by his wife.  Notably also, he did not mention the land appropriation claim he currently relies on, nor the charges and imprisonment of his brother [Mr A] on arson charges in retaliation for opposing the sale of his land. 

22. When he made the present application, [the applicant] did not mention being involved in printing anti-government pamphlets in his reasons for leaving the country, or in relation to his fears about returning to China. He did not mention or discuss this activity or other events previously claimed in his oral evidence to the Department or Tribunal, despite various opportunities given to him to comment on the omissions and inconsistencies in his claims during the interview with the delegate and at hearing before the Tribunal.  He maintained to this Tribunal that the evidence he gave in his previous application was truthful although acknowledging that the previous Tribunal did not believe him.  Despite this, he did not seek to rely on or elaborate on the claims previously made. It was not until his post hearing statutory declaration made on 25 July 2015 that [the applicant] referred to his involvement in anti-government pamphlet distribution, and this was only in response to particulars put to him in writing for comment. He has not indicated in this application at any stage that he fears return to China for this reason.

23. Regarding his brother,[Mr A]’s arrest and imprisonment, [the applicant] claimed in this application that he was arrested and sentenced in April 2008 to three years jail on arson charges after he resisted attempts to seize his lands and rejected the compensation and sought to complain about the appropriation. He provided a Certificate of Release in support of this claim, which is inconsistent with the Warrant for Arrest and Notice of Imprisonment relating to [Mr A]’s arrest provided in the previous application.  The claims and documents describe different charges purportedly in respect of the same person in the same time period. 

24. The response provided by [the applicant] to this inconsistency in his statutory declaration of 25 July 2015, was that[Mr A]’s wife sustained a work injury in or about August/September 2005 and [Mr A] tried to seek compensation for her and eventually organised a workers strike and was arrested, sentenced and jailed in respect of that matter because of the company’s close connections to the police.  He appears to be trying to reconcile this matter by adjusting the timeline of events, implying that [Mr A] was subject to an earlier arrest and charge.  However he did not clarify when this occurred nor did he provide any explanation of the contradictory documentation submitted in the two applications about[Mr A]’s claimed arrests and imprisonments in 2008.  The Tribunal also notes that [the applicant] did not mention in his application, or in his evidence to the delegate or the Tribunal this other arrest and imprisonment his brother was subjected to.   

25. Finally, [the applicant] told the (differently constituted) previous Tribunal that he lived in Fuqing City and commuted to work in Fuzhou City immediately before he left China for Australia. He never mentioned going to, or living in Anhui in the previous application. In his interview with the delegate and at the hearing before the Tribunal in this application, he has said that he went to Anhui Province in March 2008, after [Mr A] was arrested, and was there until he came to Australia.

26. In his statutory declaration of 25 July 2014, responding to these inconsistencies, [the applicant] declared that he lived in Fuqing City and worked in Fuzhou and after his father’s death, in around July or August 2008, he went to Anhui.  He explained that before going to Anhui he was involved in distribution of pamphlets against the authorities and government for 3-4 months.  This evidence is inconsistent again with his evidence to the delegate and Tribunal where he said he went to Anhui at the time of[Mr A]’s arrest in March 2008. 

27. Having regard to these substantial inconsistencies, omissions and contradictory evidence in the claims and evidence submitted by [the applicant] in the present and previous applications, the Tribunal has serious concerns about the reliability of his evidence and the truthfulness of his claims in the present application.  The Tribunal considers that, in his explanations provided in his statutory declaration of 25 July 2015, [the applicant] has tried unsuccessfully to reconcile the inconsistencies in his evidence but it considers that he has not provided a convincing explanation for why he did not previously mention the anti-government protests or the history of[Mr A]’s earlier arrest relating to the pursuit of his wife’s compensation matter in this application and why he did not mention the attempted land appropriation and brother’s arson charges in his previous application. The Tribunal has considered the explanation [the applicant] gave to the delegate, that his previous agent told him that these claims were not relevant to his protection visa claims and that the claims relating to anti-government activities and documents provided would be sufficient for that application.  He explained that his current agent told him that the land appropriation claim and brother’s arrest for arson are relevant to the complementary protection application.  The Tribunal rejects this explanation, and considers that it is more likely that he did not mention the present claims in the previous application and the previous claims in the current application because none of them are truthful and they are inherently inconsistent.  These omissions, inconsistencies and lack of any convincing explanations for them, lead the Tribunal to find that [the applicant] is not telling the truth about his past experiences in China and it rejects his evidence as not credible. 

1. Although the Tribunal acknowledges that serious issues relating to land expropriation and seeking compensation exist in China, as referred to in the independent information referred to above, it does not accept in the present case that [the applicant] is at risk of harm for this reason. The Tribunal does not accept his claim that villagers have an interest in appropriating his family land or that they have previously attempted to do so. [The applicant] told the Tribunal in his evidence at hearing that the land is still in his family’s possession and his brother lives with his [child] in Guitan County and does not have any contact with the villagers in relation to the land. 

2. The Tribunal also notes [the applicant]’s evidence that he faces no problems in[Village 2], the place of his household registration. Although he mentioned that his children were not allowed to attend the local school in the village, he told the Tribunal he does not know the reason for this refusal and confirmed that they have been and are currently attending school in his father-in-law’s village. 

3. The Tribunal has considered [the applicant]’s claim that, if returned to China, he will go to [Village 3] as he still owns land there, and that he remains opposed to selling the land.  However, having rejected his claims that his brother was arrested on arson charges in 2008 because of his opposition to selling the land; that his family land was, or is, at risk of appropriation; and that the authorities or villagers are interested in him for this reason, the Tribunal does not consider that his return to [Village 3] or [Village 2], will put him at risk of significant harm, within the meaning of that term.

4. For all of the above reasons the Tribunal concludes that there are no substantial reasons for believing there is a real risk [the applicant] will suffer significant harm if removed from Australia to China.

5. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

6. 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

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

   Meena Sripathy
   Member

   
   

   ATTACHMENT

   RELEVANT LAW

8. 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. 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 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), or on other ‘complementary protection’ grounds, or is a member of the same family unit as a person in respect of whom Australia has protection obligations under s.36(2) and that person holds a Protection visa of the same class.

   Section 499 Ministerial Direction

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.

   Complementary protection criterion

10. 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’).

11. ‘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.

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.