1413770 (Refugee)

[2015] AATA 3141

1413770 (Refugee) [2015] AATA 3141 (7 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1413770

COUNTRY OF REFERENCE:                 China

TRIBUNAL MEMBER:  Antoinette Younes

DATE:7 July 2015

PLACE OF DECISION:  Sydney

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

Statement made on 07 July 2015 at 9:41am

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

BACKGROUND & 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, arrived in Australia [in] February 2010 as the holder of a tourist visa. He lodged an application for a protection visa [in] March 2010 which was refused [in] August 2010. The RRT affirmed the decision to refuse to grant a protection visa on 16 September 2011. The applicant’s bridging visa ceased [in] October 2011 and he became unlawful. [In] January 2014, the applicant lodged a second application for a protection visa and the delegate refused to grant the visa [in] July 2014.

3. The second application for a protection visa was deemed valid as a result of the Federal Court judgment of SZGIZ v Minister for Immigration and Citizenship[1]. 

   [1] (2013) 212 FCR 235

4. The applicant appeared before the Tribunal on 24 June 2015 to give evidence and present arguments.

   THE LAW

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. 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’).

8. 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.

   SZGIZ v MIAC

9. In SZGIZ v MIAC, the Full Federal Court held that the operation of the statutory bar in s.48A was confined to a further application which duplicated the same essential criterion for the grant of the visa as in the earlier unsuccessful application.[2] That is, it did not prevent a non-citizen who had made a valid application on the basis of the refugee criterion in s.36(2)(a) from making a further application on the basis of the complementary protection criterion in s.36(2)(aa) or the family membership criteria in s.36(2)(b) or (c) while he or she remained in the migration zone.[3] Therefore, the Tribunal will determine the application on the basis of s.36(2)(aa) criterion. 

   [2] Ibid at [38].

   [3] Ibid at [43]-[47].

   CLAIMS AND EVIDENCE

10. In the first application for a protection visa, the applicant claimed that:

    a.He owned a seafood business in [Town 1] and the local government decided to expropriate his business premises in January 2008. He was told that he had to move his business by March 2008. The compensation offered was inadequate and the time allowed to move meant that he could not move his business which he had to close down.

    b.In May 2008, his friend [Mr A] persuaded him to move to the Dongli district of Tianjin to help in another seafood business. The operator of that business, [Mr B] was also from [Town 1] and had spent each year in Tianjin.

    c.[Mr B] was a devout Catholic and he started evangelising and assisting the applicant and [Mr A] to read the Bible. In July 2008, the applicant started to attend meetings of the underground Catholic Church.

    d.From August to October 2008, the applicant and [Mr A] went to Catholic training classes organised by a priest and two sisters of the Church. [In] October 2008, the applicant passed the knowledge test and he was baptised.

    e.After his baptism, the applicant was put in charge of evangelising people not from the local Tianjin area. In January 2009, [Mr A] and the applicant set up a secret meeting place at their residence. They then moved to different places and set up three subgroups with [Mr B, Mr A] and the applicant taking a group each.

    f.[In] September 2009, the applicant organised a meeting at a house in Tianjin. They came to the attention of the Public Security Bureau (PSB) during a raid whilst the PSB were looking for “troublemakers”. The PSB found a Hong Kong Bible and suspected they had found an illegal religious meeting.

    g.Everyone at the meeting was detained but others were released after one week when they paid RMB3,000. The applicant was kept in detention and he was mistreated. He was released with the assistance of friends [in] November 2009.

    h.After his release, he was required to report to the police station in Dongli every Monday and he was told to be ready for further investigation. He asked his friends in Fujian to organise his departure from the PRC. [In] February 2010, he left the PRC with the help of his friends.

    i.He has been informed that his meeting group in Tianjin has been destroyed by the police and that [Mr A and Mr B] have been arrested. His wife has been questioned three times by the authorities.

11. For reasons of credibility, the delegate refused to grant the protection visa. Similarly, with the Tribunal when it affirmed the delegate’s decision in September 2011.

12. In the application for a protection visa lodged [in] January 2014, the applicant claimed:

    a.He left China in order to escape from harm and persecution. He fears for his life and safety. He has been intimidated and threatened by illegal moneylenders. He has also been mistreated by the authorities.

    b.If he were to return, he would be mistreated by the moneylenders, their associate gangsters, and the authorities.

    c.He had a seafood business and corrupt officials demanded kickbacks. He had no choice but to offer kickbacks. The officials pocketed the money but refused to make repayments. He took the matter to the local Court that delivered a favourable outcome but the officials still refuse to make payment. They asked the police to intimidate and threaten him. Other departments also came to pick on their business operation. Consequently, he had to close the business and was unable to repay the lenders.

    d.The moneylenders and their thugs threatened to harm him because he could not repay the loan. The officials warned him not to make any trouble or do anything against the government.

    e.If he were to return to China, he would pursue his right to claim the unpaid payment by the government officials. He would also face the moneylenders who would harm him because he cannot repay the debt. The illegal moneylenders have close associations with the authorities and would harm him. He would also go against the corrupt officials who extorted him in the business dealings with the government. The officials will do everything if necessary to keep him silent about their corruption and extortion. The authorities would not protect him because they have denied him the right of getting back payment.

13. In support of the application, the applicant provided a translated document (folios 39-43) titled the People’s Court of Dongli District, Tianjin City civil judgements, referring to a dispute between the applicant and [Hotel 2] in relation to payment for goods purchased which resulted in a favourable judgement for the applicant. The applicant also provided a letter of support from [Priest C], Pastor Chaplain dated June 2014 referring to the applicant’s membership of [a certain church] and to the applicant’s regular attendance at mass since March 2010 (folio 44).

14. The applicant was interviewed by the Department [in] May 2014.  In support of the application for review, the applicant provided a copy of the delegate’s decision.

    DISCUSSIONS & FINDINGS

    Country of nationality

15. On the basis of the available information, the Tribunal finds that the applicant is a national of PRC. He travelled to Australia as the holder of a passport issued by the Chinese authorities. 

16. The applicant made no claim to be a national of any other country. The Tribunal finds that his claims should be assessed against China as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa).

    The applicant’s claims in relation to having memory problems

17. In the course of the hearing and on various occasions, the applicant told the Tribunal that because he had been beaten, he suffers from memory problems. The Tribunal indicated that it would further consider his claim but without expert evidence, the Tribunal may have doubts.

18. In consideration of the evidence as a whole, and on the basis of the available information, the Tribunal does not accept that any of the evidentiary concerns discussed below relate to any memory difficulty that the applicant has claimed to have. For the reasons discussed below, the Tribunal is satisfied that the concerns relating to the evidence are a reflection of adverse credibility rather than being due to any clinical condition, which the Tribunal does not accept the applicant has.

    The applicant’s claims in relation to the debt

19. The applicant confirmed that he came to Australia in 2010 as the holder of a tourist visa, that he lodged his first application for a protection visa in March 2010, that the RRT affirmed the decision not to grant a visa, and that subsequently he remained in Australia unlawfully until he lodged the second application for a protection visa.

20. The Tribunal asked the applicant about the preparation of his first application for a protection visa and he stated that his friends took him to a migration agent who spoke to him in Mandarin. He stated that he told the agent about his claims which the agent later explained to him prior to the applicant signing the application. The applicant confirmed that all the claims made in the first application for a protection visa are correct.  In relation to the second application for a protection visa, the applicant stated that he went to a different migration agent who completed the application based on the applicant’s instructions. He stated that the agent completed the form and explained the content to him prior to the applicant’s signing and consequently the information contained in the form should all be correct.

21. The Tribunal asked the applicant about his claims that he had been threatened by illegal money lenders. The applicant gave evidence that he had borrowed money to do business in Tianjian. The Tribunal asked the applicant about the nature of his business and the applicant had difficulty telling the Tribunal about the business but subsequently stated that he was selling seafood products in a shop within a [hotel] in Tianjian (hotel). The Tribunal asked the applicant if the business was his own business and now the applicant stated that the business was not his and that he had worked at the premises. The Tribunal asked him to explain further about what he did in the business and he stated that he supplied seafood and maintained the tanks. After extensive requests for clarification, the applicant indicated that he supplied seafood to a [restaurant] which was located within the hotel. He said that the business was owned by someone else.

22. The Tribunal asked the applicant about his claims that he had borrowed money and the applicant stated that the [restaurant] owed him money; the restaurant did not pay for the seafood that the applicant had supplied. The Tribunal asked him about the period of time when he had supplied the seafood and the applicant stated that he had supplied seafood for over a year which was in about 2002. He stated that the restaurant initially paid for the seafood but subsequently did not. He stated that in total the restaurant owed him RMB300,000.  He stated that the general manager of the restaurant was a person by the name of [Mr D] who was also the Superintendent or a team leader in the police service. He said that he paid [Mr D]  commission of RMB5000 to enable the applicant to supply seafood to the restaurant. Subsequently, the applicant stated that the commission that he had paid could also be perceived as bribery. The Tribunal asked the applicant if there was ever any intention for [Mr D] to repay the applicant the commission and the applicant confirmed that there was never such intention but that the money he had paid him was to enable him to conduct the business. The applicant later changed his evidence and stated that [Mr D] owed him money.

23. The Tribunal referred to the applicant’s claims in the course of the interview with the Department, namely that he had borrowed money from ‘gangsters’ in the amount of RMB 300,000 in total. The Tribunal noted his claims that he had borrowed RMB100,000 in June 2008 and 200,000 in 2009 from a person whom he referred to as “[name]”.  The applicant stated that he could not remember exactly how much he had borrowed as this was too long ago. He stated that after he was beaten, he had memory problems. The Tribunal indicated to the applicant about without clinical evidence, the Tribunal may not be satisfied that he suffers from any condition which the Tribunal needs to take into consideration in assessing his claims. The applicant stated that he borrowed money from a person by the name [Mr E].  The Tribunal noted that his oral evidence as outlined above appeared to be inconsistent in significant details with his previous claims, including the difference in the name of the person from whom he had borrowed money. The applicant stated that when referring to the lender as “[name]” it was because that person was “number one” and [Mr D] was the person whom he knew.

24. The Tribunal noted that in the first application for a protection visa, he did not mention that he had borrowed money from [Mr E] and the applicant stated that his migration agent at the time advised him that economic or financial issues do not “qualify” in relation to a refugee application. The Tribunal further noted that there was no mention of being a supplier to a restaurant. He stated that he had raised the issue of having a business. The Tribunal noted that it is correct that in the first application for a protection visa he does mention having a business, that the local government decided to expropriate his business premises, that he had to move the business, that the compensation offered was inadequate, that in May 2008 his friend [Mr A] persuaded him to move to the Dongli district to help in another seafood business operated by person by the name of [Mr B]. The Tribunal noted that those claims appear to differ from his current claims. The applicant was surprised and appeared to be confused at the name of [Mr B]. and said that was his own name. The applicant did not agree that there were differences and stated that from the time he began operating the business, he has had a lot of setbacks.

25. The applicant gave evidence that he is married and has [children] and that they currently live with his in-laws in China. He stated that he could not repay the loan and had to borrow money. He stated that he was just telling his experiences and that after he was beaten, he keeps forgetting what has happened. The Tribunal asked him when he was beaten and the applicant stated that he was beaten prior to him arriving in Australia. Subsequently and when asked again, he stated that he was beaten in September 2009.  He stated that [Mr E] hired people to beat the applicant because the applicant owed him money. The applicant stated that he had given [Mr E] money as commission which was not enough and the applicant had to borrow from [Mr E] money and pay interest of 3%. The Tribunal noted that he had said in the course of the interview with the Department that the interest rate was 30% annually and now the applicant said that he paid 30% interest; the applicant stated that he did not “know what to say….. I couldn’t remember”.

26. The Tribunal discussed with the applicant the document that he has provided titled the People’s Court of Dongli District, Tianjin City civil judgements, referring to a dispute between the applicant and [Hotel 2] in relation to payment for goods purchased which resulted in a favourable judgement for the applicant. The applicant stated that he was confused about the debt with [Mr E]. The Tribunal asked the applicant for how long he has had that document and he stated that he has had it for a long time. The Tribunal asked him why he didn’t provide that document in support of the first application for a protection visa and the applicant replied that the agent told him that it wouldn’t “fit in” the refugee criteria. The Tribunal indicated that it would further consider the document and put to the applicant that country information about China indicates that document fraud is prevalent in China, with which the applicant agreed. The Tribunal indicated that it could have some doubts about the authenticity of the document and or the accuracy of the information provided.

27. The Tribunal has carefully considered the evidence and the applicant’s explanation which was essentially claimed memory difficulties which for the stated reasons, the Tribunal has not accepted.  The Tribunal is satisfied that overall and as discussed above, the applicant’s evidence in relation to his central claims about the debt was incoherent, confused, vague, lacked in significant details, was inconsistent with his earlier claims; the applicant was not able to provide a coherent account of his claimed debt; it refers to debt [Hotel 2] which is not what the applicant said in the course of the hearing.  The applicant’s claims in the second application are substantially different from those made in the first application.  His explanation that the agent had advised that financial issues do not fall within ‘refugee’ criteria whilst plausible, it still does not explain the significant differences and consequently, the Tribunal is not persuaded.

28. The applicant has provided a document in support which does not on its face, corroborate his claims. Given those concerns, in consideration of the evidence as a whole, and on the basis of the available information, the Tribunal is not satisfied that the applicant had operated a seafood business, that he had supplied seafood to anyone or any organisation or any hotel, or that he was owed money for the supply of seafood by anyone, or that he had to pay commission or bribed to anyone in order to be able to run the seafood business, or that anyone had demanded money from him for their business, or that he owes money to anyone in relation to the business, or that anyone owes him money for any reason, or that he has been intimidated or threatened by any money lenders, or that the money lenders are associated with the gangsters or the authorities, or that he has been mistreated by the Chinese authorities, or that any official had pocketed money from the applicant, or that the document titled People’s Court of Dongli District, Tianjin City civil judgements contains a truthful and or accurate information, or that the court delivered a favourable outcome, or that the officials refused to make payment, or that he was unable to pay any loan, or that if he were to return to China, he would pursue his rightful payment, or that the money lenders would harm him because he cannot repay the debt, or that he would go after corrupt officials who extorted money from him, or in fact anyone had extorted money from him, or that the officials will do anything to keep him silent about any corruption, or that the authorities would not protect him, or that they have denied him payment, or that he fears for his life and safety, or that he would mistreated by the moneylenders or their associate gangsters. 

1. In essence and for the stated reasons the Tribunal is not satisfied that the applicant had borrowed or owes money to anyone, or that he has any fear on this basis.

   The claims of Christianity

2. The Tribunal asked the applicant about his claims that he was involved in activities relating to the underground Catholic Church. The Tribunal asked him when he began being involved in such activities and the applicant stated that he started after he went to Tianjian. The Tribunal asked him if he could recall further details and the applicant stated that he could not recall when but it could have been in 2008. The Tribunal asked him how he became involved in activities relating to the church and the applicant stated that his business failed and he thought that God could save him; he said “let God decide everything”. The Tribunal asked him if anyone had introduced him to the church and the applicant stated that he was introduced by [Mr A]. The Tribunal noted that in the first application for a protection visa he had stated that [Mr B] had introduced him. The Tribunal asked the applicant if he has been baptised and the applicant stated that he was baptised in China but he could not recall when. The Tribunal asked him if he had a certificate of baptism and he stated that he has but he could not remember where it was.  The Tribunal asked the applicant about the nature of the underground activities in which he was involved in China and the applicant stated that he was involved in “underground Catholic Church…. Gatherings”. The Tribunal asked him when the gatherings took place and the applicant stated that they occurred on Fridays and that there were [a small group of] gatherers.

3. The Tribunal asked the applicant if he has ever been detained by the Chinese authorities and the applicant stated that he has been detained. The Tribunal asked him when he was detained and he stated that he could not remember when he was detained. The Tribunal asked the applicant for how long he was detained and he stated that he was detained for several months. The Tribunal asked him what he had to do anything after his release and the applicant stated that he could not recall.

4. The Tribunal asked the applicant about his religious activities in Australia and he stated that he attends church in [Australia] on Sundays. The Tribunal discussed with the applicant the letter of support from [Priest C] and indicated that the Tribunal would further consider the weight that it would place on this document. The Tribunal indicated to the applicant that it appears that in the second application for a protection visa he has not focused on his Christianity claims and asked him if there were reasons. The applicant stated that he does not know the reasons but thought because those claims had previously been raised. The Tribunal is not persuaded.  He stated that he believes in God who gave him a chance to apply again.

5. The Tribunal indicated to the applicant that the previous RRT Member who dealt with his first application for a protection visa as well as the delegate appeared to have discussed at length with him his knowledge of Christianity and appear to have formed the view that he had limited knowledge of Christianity, raising doubts about his claims. The applicant stated that his limited knowledge was because of his “brain”. He said his brain cannot remember anything and that he believes in his faith.

6. The Tribunal asked the applicant if you had any difficulties in departing China and the applicant stated that he did not. The Tribunal noted that he had claimed that he paid a large sum of money as a bribe and the applicant stated he could not remember but “maybe yes”. He stated that he was not good with words.

7. The Tribunal is of the view that the applicant’s evidence in relation to his Christian related activities in China was general, vague, lacked in significant details.  His explanation about memory problems is neither persuasive nor convincing.  The applicant has provided a letter of support from [Priest C] which the Tribunal has carefully considered. Given the credibility concerns, in consideration of the evidence as a whole, the Tribunal has decided not to give the letter weight. For those reasons, the Tribunal is not satisfied that the applicant was ever involved in underground Christian related activities in China, or that he is a genuine Catholic, or that he was ever involved in any underground church meetings, or that he was ever arrested, detained, or had to pay any money for his release,  or ill-treated for any reason, or that they were raided during any meetings by the PSB, or that the PSB found a Hong Kong Bible, or that the PSB suspected that they had found illegal religious meetings, or that he was informed that his meeting group in Tianjin had been destroyed, or that his wife has ever been questioned by the PRC authorities.  Whilst the Tribunal accepts as plausible that the applicant has attended church in [Australia], in consideration of the evidence as a whole, the Tribunal is not satisfied that his attendance is genuine, or that it supports his claims of being a practitioner of the Catholic faith, or that he had to pay bribery to be able to depart China. For those reasons, the Tribunal is satisfied that if the applicant were to return to China, because he is not a genuine practitioner of the Catholic faith, there is not a real risk of significant harm occurring to him on this basis or any other basis, including but not limited to any of the claimed debts all bribery.

8. In relation to the fact that the applicant departed China lawfully, the Tribunal notes that the Australian Department of Foreign Affairs and Trade reported that a number of agencies within the Ministry of Public Security hold responsibility for monitoring entry and exit procedures at Chinese airports, including the Public Security Bureau, the Entry and Exit Authority, and the Frontiers Inspection Bureau. China’s major airports have a centralised system with name matching alert capabilities[4].  The Tribunal is satisfied that the fact that the applicant departed China lawfully raises serious doubts about his claims and supports the Tribunal’s conclusions that the applicant is not of any adverse interest to the Chinese authorities.

   [4] DFAT Country Report, People’s Republic of China, 3 March 2015

9. The Tribunal has accepted that it is plausible that the applicant has attended church in Flemington. On the basis of the available information, the Tribunal is satisfied that if the applicant were to return to China he would not practise the Catholic faith not out of fear but because he is not a genuine practitioner of the faith. On the basis of the available information, and whilst this has not been articulated by the applicant, the Tribunal is of the view that it is highly unlikely that any of the applicant’s Christian related activities in Australia would have come to the detention of the Chinese authorities. Accordingly and for those reasons, the Tribunal is satisfied that there is not a real risk of significant harm occurring on this basis.

10. For the stated reasons, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the China, there is a real risk that he would suffer significant harm in the form of, arbitrary deprivation of life, or the death penalty being carried out, or torture, or cruel or inhuman treatment or punishment, or degrading treatment or punishment. Therefore he does not satisfy the requirements of s.36(2)(aa). 

    CONCLUSIONS

11. For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa) for a protection visa.  As he does not satisfy the criteria for a protection visa, he cannot be granted the visa. 

12. 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

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

    Antoinette Younes
    Senior Member