1415413 (Refugee)

[2016] AATA 3612

1415413 (Refugee) [2016] AATA 3612 (14 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1415413

COUNTRY OF REFERENCE:                  China

MEMBER:Louise Nicholls

DATE:14 March 2016

PLACE OF DECISION:  Sydney

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

Statement made on 14 March 2016 at 1:37pm

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. The [applicant] is a citizen of the People’s Republic of China and is [age] years old. He was born and grew up in [Village 1] in Fuqing County, Fujian Province, China. He first arrived in Australia [in] January 2014 as a tourist. His parents, wife and [child] are all living in China.

2. The applicant applied for a protection visa [in] March 2014. He claimed that he had been mistreated in China by government authorities due to his protest activities and that he feared if he returned he would face serious harm. He also provided a copy of a passport in a different name and a typewritten statement. He was interviewed [in] August 2014.

3. [In] September 2014 the delegate of the Minister for lmmigration refused to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act). The delegate was not satisfied that there was a real chance that if the applicant returned to China that he would be persecuted for a Convention related reason or that there was a real risk that he would be subject to significant harm.

4. This is an application for review of that decision and it was lodged on 12 September 2014. The applicant did not provide any further documents or submissions to the Tribunal.

5. The applicant appeared before the Tribunal to give evidence and present arguments on two occasions; the first hearing was held on 7 August 2015 and the second hearing was held on 24 November 2015. The hearings were held by video [conference].

6. The applicant gave evidence about his background, his family, his circumstances and his claims for protection. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION

9. The law upon which the findings below are based is set out in Attachment A.

   Background

10. The applicant is a citizen of the People’s Republic of China and he is now [age] years of age.

11. He was born in [Village 1], [Town 1], Fuqing County, Fujian Province and his village was located in a rural area. His parents are alive but they have now left their home village. He is an only child. His parents are now living with a cousin in [Town 2] and they are helping their cousin with his farming work. He stated they do not have much money.

12. He married in 2007 and he and his wife have one [child] who is now [age] years old. He stated that he had attended school in his village and then went to [high] school outside the village.

13. He worked as [occupation] in [Town 1] and has not worked as a farm worker. However, after he finished his daily work he sometimes did some farming on his property.

14. He described his former home in the village as a 2 storey house in the village with about [number] sqm attached to the house. The family once grew vegetables and raised [animals] on the property. His wife, parents and [child] also lived in the house and his parents helped him with farming.

15. The applicant came to Australia [in] January 2014 using a false passport in the name of [Mr A] issued in [the other] Province. He claimed that his identity card and passport issued in 2011 were held by the local government authorities in [Town 1].

    What are the applicant's claims?

    Claims included in his application for protection visa lodged [in] March 2014.

16. The applicant stated he could not make a living in his hometown because the government had deprived him of his basic rights and he lost the ability to make a living in his hometown.

17. The local government forced him to sign a relocation agreement which was unfair and threatened his family's livelihood. His family had to agree to give up their farm land and pay an extra [amount] to [amount] yuan to move into a new place. His family's income came from farming and if they gave up their farm land they would have no income.

18. He refused to sign the agreement and the local government cut off the electricity and water to the property. His house was damaged and parents assaulted by local government officials. The house became decrepit and in danger of collapse.

19. He was illegally held in custody by the police and local government because he had reported their wrongdoings and difficult situation to the county government. They warned him that if he appealed again they would take revenge. He claimed he was held on two occasions. The local government used gangsters to hit him on the way home from the complaints office of the county government.

20. The mayor and deputy mayor threatened him with harm; they slapped him and ordered the military to monitor him. He was locked in the town office and no food or water was provided. His father paid them [amount] yuan for his release.

21. He was caught by police as he tried to appeal a second time. He was denied food and water, not given a bed or quilt, beaten by police. [Details of injuries]. His family paid a lot of money for his release.

22. The local government threatened his wife that if they caught him they would send him to gaol and refused permission for his children to attend school. His parents left home because they could not afford the rent.

23. He claims that if he returns to China he fears that he would not be treated fairly and the local government would retaliate against him. His identity card and passport were held by the local government. They would find him easily and without his identity card he cannot work, travel or live in China legally. His wife was told that he would be sentenced to 2-3 years in gaol and he will be tortured in gaol. He could face death threats. He stated that the local government controlled the police station and they are very hostile to the applicant.

24. He also fears his family will be mistreated if he returns. He claimed that his house has been fenced off, his wife has received threats regarding their [child]’s schooling, his parents were attacked and his family paid large amounts of money to local officials in the past.

25. He believes he will be harmed because he had reported the wrongdoings of the local government and police to the county government. He stated that the local government is all powerful in the town and they can take action against him without any monitoring by higher levels of government. He stated that the relocation agreement was made by the national government and is a nation-wide policy. The political system does not allow for individual opinion, he does not have rich relatives or friends outside the town and he does not know anyone in power.

26. He does not consider that the state authorities will protect him from harm. He was raised in a rural town and his family are poor. He does not have any political or government connections. The relocation agreement was made by the national communist government and they do not allow differences of opinion. The local government is responsible for handling everything in his village. The country and city government cannot deal directly with his case.

    Claims set out in a typewritten statement dated [February] 2014 and lodged with his protection visa application.

27. He claimed that in 2013 a policy of building reconstruction was carried out in his village. Villagers' houses were to be pulled down and areas turned into farmland. The Chinese government paid a fixed rate of compensation to the village council who would build apartments for the villagers whose land had been taken. As the applicant's land was small he was told he would have to pay [amount] to [amount]RMB to get the resettlement apartment.

28. Many villagers objected however they were threatened by the local secretary of the party and local government officials. Many were forced to sign the agreement to sell the land.

29. The applicant claimed he led protests against the local government and the applicant's family were listed as a leading household in the protests. The authorities cut off their water and electricity to the family home.

30. Later local officials came and dug a trench around the house causing it to deteriorate and the property was in danger of falling down. His parents were assaulted.

31. The applicant made a complaint to the county office and advised that the family were dependent on farming and would have no income if they had to leave their home. The relocation compensation for the village was very low. Despite showing the official his title deeds he was told that the land was collectively owned.

32. After the secretary of the town found out he had complained to the county government he threatened the applicant and his family. The applicant was attacked by gangsters on the way home from the county government. He was pushed to the ground, his face injured and scratched.

33. The applicant decided to appeal to the city government but on his way to the complaints office he was caught at the local bus depot and sent to the mayor's office. The mayor cursed him for selling false rumours. The applicant was pressured to sign a pledge that he would never appeal again but he refused. He was detained in the town office and mistreated in detention.

34. The applicant's father came to the office to see him and arranged his release by payment of the sum of [amount] RMB to the mayor. His father borrowed the money from family and friends.

35. On a later occasion the applicant walked and caught a bus to the city intending to appeal but on the journey he was pulled off the bus by 3 people and then locked up in the police station.

36. He was kept in poor conditions with no food or water and lying on a concrete floor. He started shouting and police officers came to his cell and he was mistreated by police. His parents arranged for his release by the payment of a large sum of money. He was not allowed to continue his appeal.

37. He later found out that the local government paid specialised people to prevent this kind of appeal from being lodged. These people controlled the road to the county from the town and village. Sometimes they even paid gangsters to kill people who appealed.

38. He stated his family was supportive and had mortgaged their land to help him with the costs of leaving China. In November 2013 he used his own passport to apply for a visa however his visa application was rejected. He claimed that the government heard the news and in order to prevent him from escaping they held his passport and identity card. He escaped to [another province] and used a passport with the name [Mr A] to apply for an Australian visa. He left his family for Australia [in] January 2014. He also has another passport with his own name which he brought to Australia but he has never used it.

39. He called home in early 2014 but no one answered. He called his neighbours who told him their house was too dangerous to live in and surrounded by a fence. The local government controlled the entrance to the house and his parents left the home as they could not afford rent. The local government visited his house and asked his wife every day about his whereabouts. They told her they had decided to arrest him and might sentence him to 2 or 3 years in gaol. They stated he had gathered a crowd to engage in an affray. The local government even threatened that his [child] would not be allowed to go to school in the second half of the year.

    Interview with the delegate [date] August 2014.

40. The applicant attended an interview with the delegate and repeated the claims he had made in his written statement. The delegate discussed relevant country information with the applicant regarding China's system of "petitioning".

    Evidence given at the first Tribunal hearing -7 August 2015

41. The applicant attended a hearing by videoconference from [City 1] on 7 August 2015.

42. After providing some background information he stated that his wife and [child] have no fixed address, and have lived from place to place for the last 18 months. He claimed they moved every 2 to 3 days and sometimes live on the street. He keeps in contact by mobile phone but sometimes runs out of credit. His wife is not working. His wife's parents are both in hospital; his father-in-law works in another place.

43. The Tribunal asked him why his wife was not living with her parents and he stated she did live with them at the beginning, but the government authorities harassed her every 2 to 3 days and so she decided to leave their home. When asked why she was being harassed he stated that his family were perceived to be leading others in protesting and petitioning against the demolition of their family homes. He stated the government authorities were harassing his wife because they knew that he had left China. They were determined to arrest him because he had been a leading protester during the demolition process. He refused to sign a consent document and the development could not go ahead without it and he arranged for the whole village to petition against it and they followed what he did.

44. He arrived in Australia [in] January 2014 by plane. He left China from [location] and stopped over in [country] before arriving in [Australia]. He described how he travelled from his home village to [location] stating that he took a coach to [one place] then left there to go to [location] and passed through customs in [that place]. He claimed he used a false passport and was quite concerned about leaving China on his false passport.

45. He claimed that he used a false passport because local government authorities took his other passport. The Tribunal put it to him that was difficult to get through Chinese border control with a false passport and he stated that his relatives obtained that passport for him and he went through border control without restriction although he was concerned he might get caught. He obtained the passport through relatives with "a connection". He stated he had given his relatives his photograph and they obtained a passport in another person's name with an Australian visa.

46. The Tribunal put it to him that he knew that his relatives were obtaining a false passport and that the purpose of giving them his photograph was to obtain that visa. He admitted he knew it was a false passport when he was using it but he needed it to leave China. The Tribunal asked him whether he used that passport to leave China or whether he just used it to enter Australia with an Australian visa. He claimed he used it to leave China. The Tribunal asked him what airline he used to travel to Australia. He stated he could not remember the name of the airline and that his relatives bought the tickets.

47. He told the Tribunal he arrived in Australia using a false passport with an Australian visa. He stated that it was the only passport he had in his possession at that time. The Tribunal asked him how he then obtained a Chinese passport in his own name (2008 passport). He stated his wife sent it to him by mail to his address in [City 1] about 2 to 3 months after he arrived in Australia.

48. The Tribunal asked him what happened to his other Chinese passport (2011 passport) and he stated his ID card and 2011 passport were retained by government authorities because they wished to prevent him escaping to another country. The Tribunal asked him why authorities had not detained him if they wished to arrest him. He stated that that they thought he could not leave China. The Tribunal asked him how he had 2 passports in his own name. He stated he had one passport issued in 2008 and another issued in 2011. He obtained a new passport in 2011 because he could not remember where he put the old one. The Tribunal asked him why he decided to apply for another passport in 2011 and he stated that everyone in his village was getting new passports. He stated that the 2011 passport was a replacement passport because he thought he had lost the old one.

49. The Tribunal put it to him that he was prepared to use a false passport and visa to obtain a migration outcome. He stated that he had obtained the passport because he had suffered persecution and could not find any other way to leave China.

50. He stated he would never leave his wife and [child] and go to another place unless there was a good reason. He would like to be with his family and that was very important to him. The Tribunal put it to him that he might have decided to leave his family for a period of time if he thought it was in his family's long-term interests. He stated that China is not ruled by law and is not a democratic society and everyone wishes to pursue money.

51. He stated when he arrived in [City 2 in Australia] a friend met him at the airport. He stayed in [City 2] for a short time before he moved to [City 1]. He now lives in [City 1] and is he staying with a friend who has a permanent visa. He is doing [work] in a [workplace] in [City 1] and is barely able to support himself on his income.

52. He stated that his [uncle] organised his travel to Australia. His uncle was doing business in another city in China. He saw what he been through and wanted to help him. His uncle wanted to see him safe and the applicant was not under any obligation to repay money that his uncle had paid to help him leave. He said his relatives put together the money for him to travel to Australia. He stated getting a false passport did not cost much money.

53. The hearing was adjourned to another date.

    Evidence given at the second Tribunal hearing 24 November 2015

54. The further hearing was held by videoconference from [City 1]. The applicant told the Tribunal that he had only recently had contact with members of his family and had contacted his wife once or twice. He said she does not have a regular residence and stays somewhere with his child at different addresses in Fujian Province. He stated his child is not attending school. His wife used to work but had to leave her work because Chinese government authorities were harassing her. She now helps friends with domestic tasks to support herself. He claims that the Chinese government continues to monitor his wife and she has no regular place to stay. She does not live in [Village 1] but now lives in a different town. When asked who monitored his wife he stated officers from [Village 1], the council and police. When asked why local authorities from his town would harass her when she lived elsewhere he stated that officials and police are all connected. He said the reason for the harassment was that local government authorities were trying to get him to come back and sign papers to consent to the redevelopment of his land.

55. The Tribunal put it to him that authorities could acquire land without the consent of the occupants under the current property law. He stated that the government authorities were afraid that if he returned he would continue to petition the county and other local government authorities. They want him to give his consent for the demolition and redevelopment of the land.

56. The Tribunal asked the applicant why he feared returning to China. He stated his property has been demolished, his family has been damaged and he would continue to petition. If he petitioned he could face imprisonment and mistreatment.

57. The Tribunal asked him what had happened to him to make him have this fear. He stated that he had been petitioning before and had been detained. He stated his family was quite poor and had to borrow money to obtain his release from detention.

1. The Tribunal asked him to provide a more detailed account of what had happened to him to cause him to fear harm if he returned. He stated that in the beginning the village officials came to his home in early 2013 and told him that they would like to demolish his home and redevelop the property. He asked where he would live while the property was being redeveloped and they stated that he could rent during the redevelopment process.

2. He explained to the Tribunal that his parents and he had lived in [Village 1] from the time he was born and in 2013 they lived in a two-storey house which had a little bit of land attached to it in what was essentially a rural village not far from the main town. He stated his parents used to do odd jobs to earn income and they were paid in cash.

3. In early 2013 village officials came to his house and told him their property was to be taken and turned into social security housing. He stated that everyone in the village was given the same information. He was concerned about the proposal because he and his family would lose their property, would have to pay an extra [amount] to [amount] yuan for the new property and that the new property would be much smaller than the house in which they had been living. He did not think it was a very reasonable proposal and was of no benefit to him or his family.

4. He stated all the villagers disagreed with the proposal and after they had disagreed government authorities started doing illegal things even though he showed his property certificates to local government officials. The Tribunal put it to him that country information indicated that rural land was owned collectively by the village and he stated that in the last 10 to 20 years lots had been distributed to individuals and that he held property documents for the land. He stated that the government had taken away all his property documents.

5. One day in 2013 he took the bus to the local government office in Fuqing County to lodge a petition against the proposal and when he arrived back in his village he was detained by government officials in a room at the back of the local government office. His father borrowed money and arranged for his release from detention. When asked who had detained him and he stated city rangers and officers from the local government and they kept him in detention. They asked him to sign a statement promising not to petition again but he would not sign the statement.

6. After his father arranged his release he went back to stay with relatives home in [a] village. This was about 10 km away from his home village. The reason he went to their house was his property in [Village 1] had been demolished in the 2nd half of 2013 whilst he was away working in a [a] company in [Town 1]. After demolition of his property in the 2nd half 2013 his wife went to live with her parents in [Town 2]. He said her parents were farmers and she lived there in the beginning but then moved away in about August 2013 due to government harassment.

7. He stated that on a second occasion in October 2013 he went again to the city to petition the government but on the way to the city 3 of 4 people arrested him and took him to the police station.

8. The Tribunal asked him to try to give a more detailed account of this incident. He stated he was taken to the police station, harmed physically and mentally and released after 2 nights when his father again borrowed money to obtain his release. He stated he was beaten in detention and [sustained injuries] as a result of the beating. He did not provide any further detail about his claimed incident.

9. After that he realised that vulnerable people cannot petition and he would be monitored if he continued his petitioning conduct. His parents persuaded him for the sake of his wife and child to run away. His other relatives sympathised with his position and tried to think of ways him to get out of the country so that he would not bring any more trouble to his family. He decided to stop petitioning and left the country because he was afraid for his safety. He stated that if he had stayed he would have continued petitioning but was talked into leaving by his parents. His wife has told him that if he returns his life is threatened and he would be taken and arrested.

10. He had a false passport arranged by his relatives and claimed he left China and arrived in Australia using that passport. He referred to the departure stamp in that passport. He stated that his wife sent him his 2008 passport and he had provided a copy to the Department which was on file. His wife had sent him that passport a couple of months after he arrived in Australia. The copy of that passport showed a number of departure and arrival stamps showing he had travelled to other locations in Southeast Asia.

11. He also claimed that he had obtained a new passport in 2011 and that passport had been confiscated by local authorities. He stated that he had used the 2011 passport to apply for a visa for Australia but was unsuccessful.

12. The Tribunal put it to him country information suggested that it was difficult to leave China on a false passport due to sophisticated technology used at airports. He stated that the passport was given to him by relatives and he was able to leave China and enter Australia on the passport. He did not agree with the suggestion that he left China on his own Chinese passport and that he entered Australia on his false passport. He pointed to the departure stamp in his false passport.

13. The Tribunal asked him if he had any evidence that he had obtained a passport in 2011 and he stated that he would talk to his wife and see if they had a copy at home. The Tribunal put it to him that had just given evidence that his wife was not living at home, but had an nomadic lifestyle and he stated that she would have taken her household registration and his passport wherever she went.

14. The Tribunal asked him about previous travel outside China and he stated that he had travelled outside China on his 2008 passport when he was working for the [company].

15. The current situation in his home village is that his property and surrounding properties have been demolished and the land has been cleared for redevelopment. No redevelopment has taken place because none of the villagers have signed consent forms. The Tribunal again put it to him that the government authorities can acquire land without consent in certain circumstances.  He stated that the land is collectively owned by the villagers but the authorities prefer to have their consent. The Tribunal put it to him his earlier evidence was that the land was not collectively owned by villagers. He stated that was correct but government authorities were afraid of the villagers taking legal action.

16. The Tribunal put it to him that the Land Administration Act had 3 levels of action for settling disputes relating to land. The first was negotiation and if that did not resolve the issue the second was to petition government officials at town and county level and if that did not resolve the issue a dispute could be brought before the People's Court. He agreed that this was the law and that higher officials generally complied with the law, but local officials ignored the law and there were problems with petitioning. The Tribunal put it to him the government was aware of problems with petitioning and had proposed reforms so that government officials were not punished for allowing petitions. He stated that the Chinese government gives a proper explanation internationally but that the lower levels of government do not comply with the law and are connected to bad and corrupt people. He stated implementation of the law is poor. He stated that his family was vulnerable and could not take any further petitioning action.

17. The Tribunal put it to him that he had worked for a [company] and had travelled overseas a number of times and it did not appear that he was a vulnerable or poor person. He stated he had not been an official employee and was only [occupation] and did not have money or power. He stated that visits overseas were bonuses given by his employer because he was under pressure and suffered stress.

18. He stated he lost his job with the [company] when he had the problems after the demolition of his property in 2013. He claimed that after that date he was not working in China.

19. Since he has been in Australia he has done some casual work, but has not earned very much money. His wife is in a difficult position. She also does not have much money and his [child] is not going to school.

20. He claimed that if he returned to China he would be arrested and his life would be threatened because he was regarded as a leader of protests in his village. The Tribunal put it to him petitioning was not a criminal offence and he had not been charged or convicted of any offence. It asked him why he would be arrested if he went back in these circumstances. He stated his wife told him not to come back because he would be arrested. The Tribunal asked him if this was the case, why he had not been arrested before he left China. He stated that they had taken his passport and thought that he would not be able to leave China.

21. The Tribunal put it to him that his account of events did not appear to be plausible. He stated he had been detained twice for petitioning and his father had paid money for his release. The authorities want him to return to China and have been harassing his family.

    Is the applicant a national of the People's Republic of China?

22. On the basis of the evidence given to the Tribunal and the information from the Document Examination Unit of the Department indicating that the 2008 Chinese passport is a genuine document the Tribunal finds that the applicant is a citizen of the People's Republic of China (China). As the Tribunal has found that the applicant is a citizen of China it finds that China is the applicant's receiving country for the purposes of s36(2)(aa).

    Does the applicant meet the refugee criterion?

23. Taking into account the oral evidence of the applicant and written claims made to the Department the Tribunal makes the following findings.

24. The Tribunal did not find the applicant to be a generally credible witness and found that much of his evidence was unreliable.

25. The Tribunal accepts the applicant is a [age] year old man who was born and grew up in Fujian Province. He is married with one [child] and his wife and child are living in Fujian Province.

26. The applicant gave evidence, which the Tribunal accepts, that he had been [occupation] with a [company] in [Town 1]. He claimed that visits to locations in South East Asia recorded in his 2008 passport were holiday trips given as bonuses for work done for this company.

27. The applicant gave evidence, which the Tribunal accepts that he, his wife and [child] were living with his parents in a 2 storey property in [Village 1], [Town 1], Fuqing City up until a date in 2013.

28. The applicant claims that the property was subject to a relocation and resettlement arrangement made by Chinese local authorities.  He stated that all the neighbouring properties were subject to the same relocation proposal. The local government intended to resume the land and redevelop it. Part of the arrangement was that those persons displaced by the resumption of land would receive compensation and have an apartment allocated to them on the basis of the area of land they held.

29. The Tribunal accepts that the applicant and his family were unhappy with the proposed compensation because it was quite low. They were also unhappy because part of the resettlement proposal was that they would have to pay an extra amount of between [amount] to [amount] RMB because they only had a small plot of land to exchange. ·

30. The Tribunal accepts that the local government officials may have preferred to have the agreement of those persons affected by the relocation and resettlement arrangement. However, as discussed at hearing the country information indicates that the government does not need the consent of the persons affected to acquire property compulsorily.

31. The country information indicates that all land in China is publicly owned.[1] Urban land is owned by the state and rural land is owned by village collectives, which distribute land-use rights to households in 30 year ‘household management’ contracts.[2] A Finance Asia[3] overview of Chinese land laws notes that although individuals may privately own property, the state retains ownership of the land itself.[4] As such, the legal framework encompasses the rights of private property ownership (i.e. the buildings and structures) with the state ownership of the land they sit on.

    [1] Ding, C and Lichtenberg, E 2011, ‘Land and Urban Economic Growth in China’, Journal of Regional Science, vol.51, no.2, May, Wiley Periodicals, p.302 >

    [2] Ding, C and Lichtenberg, E 2011, ‘Land and Urban Economic Growth in China’, Journal of Regional Science, vol.51, no.2, May, Wiley Periodicals, p.302; ‘China expects new law amendment to upgrade protection of farmers’ land rights’ 2011, Xinhua, 31 December < A Hong Kong-based publisher of financial magazines founded in 1996. The Finance Asia magazine is published 11 times a year.

    [4] Li, F 2004, ‘China’s Land Law: An Overview’, Finance Asia, 19 August, Habitat International Coalition <>

    Under the Chinese Constitution, the Land Administration Law of the People's Republic of China 1986 (last revised in 2004)5 and the Property Law of the People's Republic of China 200?6 , the state, acting in the public interest, may lawfully requisition land owned by collectives.[5] Compensation for land expropriation is enshrined as a constitutional right and a requirement under these laws (hereafter abbreviated to the Land Administration  Law and the Property Law, respectively). 8  Each province issues its own implementation regulations based on these national laws.9

32. According to Article 10 of the constitution:

    The State may, in the public interest and in accordance with law, expropriate or requisition private property for its use and make compensation for the private property expropriated or requisitioned.[6]

    [6] Constitution of the People’s Republic of China 1982 (China), promulgated 4 December 1982 (amended 14 March 2004), National People’s Congress of the People’s Republic of China <>

    It may be that the applicant did make a complaint to the county government in Fuqing City early in 2013 and as a result was harassed and intimidated by local officials in the local government office on his return to [Village 1].

33. However, the Tribunal does not accept that he continued to complain to the country government and that in October 2013 was taken from a bus on his way to Fuqing County, arrested by police, taken to the police station, beaten and kept for 2 days before his father paid a large amount for his release. His oral evidence on this claimed mistreatment was vague and generalised and the Tribunal formed the view that he was not able to give a more detailed account because he had not experienced the claimed mistreatment.

34. Further his oral evidence differed from the written statements made by the applicant to support the visa application and the inconsistency suggests that the applicant has not given credible evidence regarding an alleged detention in October 2013. In his written statements he claimed that his house was damaged but still standing and that his wife was living there in the later half of 2013. However, at hearing he stated that by October 2013 the property had already been demolished whilst he was away working for a [company] in [Town 1] and his wife had gone to live with her parents in [Town 2].

35. Whilst the applicant may have been seeking a better outcome from the relocation and settlement arrangement it appears he decided to end his petitioning and leave China. The Tribunal considers that the forced resumption of his property and the added expense of paying a further sum for the resettlement apartment put the applicant in a difficult financial position which may have influenced his decision to leave China and seek more remunerative work elsewhere.

36. The applicant came to Australia travelling on a false passport in the name of [Mr A] but either he or his wife also had possession of his own legitimate passport which was issued in Fujian Province in 2008. He claimed and the Tribunal accepts that he left China travelling on the false passport with an Australian visa. The Tribunal considers that it is likely that he would not have been able to board an international flight to Australia without evidence of a valid visa. He claimed that his wife sent him his 2008 passport about 3 months after he arrived in Au&tralia.

37. The applicant claimed that he applied for and was issued with a new passport in 2011 and that it was subsequently seized by local Chinese government authorities as well as his identity card. When asked why he had applied for a new passport in 2011 he stated he thought he had lost the old passport and that everyone in the village was applying for a passport. The Tribunal does not accept this explanation and does not accept that he thought he had lost his 2008 passport and that the applicant was issued with a passport in 2011. It considers that the applicant has contrived this evidence to explain why he travelled on a false passport in 2014 but later came into possession of his own 2008 passport. Even though he claims he thought he had lost his old passport on his own evidence his wife was able to locate it and send it to him 3 months after his arrival in Australia.

38. Further the Tribunal does not find it plausible that the Chinese local authorities or police would take away his passport away rather than detaining him if they had any serious adverse interest in him and intended to arrest him and keep him in gaol for 2-3 years as claimed. He left China in January 2014 but claims he had been involved in petitioning conduct many months earlier in 2013.

39. The Tribunal does not accept that his wife and [child] are living an itinerant lifestyle. Despite claims that they moved from place to place every 2-3 days to avoid harassment for 18 months prior to the hearing he also stated that he could call his wife and ask her if she could find a copy of his 2011 passport at home and send him a copy. He gave evidence that his parents-in-law are farmers and that his wife lived with them after he left China and the Tribunal considers that it is likely she is living with them or other relatives. It considers that she has a fixed residence and does not accept she is moving from place to place every 2-3 days.

40. The applicant claims that he will face serious harm if he returns to China because he was regarded as a leading protester against the resumption and redevelopment of village land and will be targeted for this reason. The Tribunal does not accept this claim. Whilst it accepts he was unhappy with the proposal and may have lodged a petition with the local country government there is no credible evidence and the Tribunal does accept he was a lead protestor and he did not provide satisfactory evidence to support such a claim.

100.   He claims that if he returns to China he will continue to petition and that will put him at risk of serious harm. The Tribunal does not accept this claim. The applicant gave evidence that he decided to cease petitioning and left China for Australia. The Tribunal does not accept that he will continue to petition if he returns. The Tribunal does not consider he will suppress such conduct because he fears persecution but rather because the demolition of the property and resumption of land has taken place and there is no further purpose in seeking further appeals. It considers that the applicant has given up as he perceived that he would not be successful in his attempts to obtain a more favourable outcome.

101.   The Tribunal accepts country information indicating that land seizures have been a significant problem in China for many years. Although there is a system of petitioning and appeals, the Tribunal accepts that in the past petitioners have sometimes been mistreated by government officials for taking protest action against land seizures.

102.   However, the Tribunal also notes the country information that petitioning is not unlawful and that petitioning and appeal are an established part of the Chinese administrative and legal system. The Tribunal also notes that the Chinese government has recently taken steps to abolish a system of ranking provincial authorities according to their ability to limit local petitioners and maintain social stability.

103.   Chinese citizens who wish to complain about land and property expropriation processes engage in a number of official and unofficial methods of protest. Chinese law provides for stages of mediation that commence with direct negotiation, escalate to government intervention and then allows for court review of land seizures. 11 Disaffected citizens may also petition the government through the xinfang system. Dissatisfaction with government inaction over land seizures leads some citizens to publicly protest their treatment.

104.   The latest DFAT report (March 2015) on China reports that;

Protesters/petitioners

3.20 It is estimated there are between 150,000 and 180,000 popular protests every year; the vast majority of which concern: land disputes; housing problems; industrial, environmental, and labour matters; government corruption; taxation; and other economic and social grievances. Others are provoked by accidents or related to personal petitions, administrative litigation, and other legal processes. According to Duihua, detentions took place in 25 per cent of mass protests documented in 2013.

3.21 Despite recent reforms leading to improved legal protections for property ownership and compensation for expropriated land, protests and petitions related to land seizures by officials and the conduct of developers remain common in China. According to the State Bureau of Letters and Calls (the national department responsible for local petitioning offices), an estimated four million disputes resulting from expropriated land and property demolitions occur every year. DFAT is aware of reports describing aggressive, and sometimes violent, action by private security contractors hired by property developers to manage protesters.

3.22 China’s Constitution and State Compensation Law enables citizens to seek compensation from the state but the public’s confidence in the judicial system and ability to afford lawsuits is generally low. The Chinese government encourages Chinese citizens to submit complaints through government-controlled websites and local petitioning offices. Although extra-legal “black gaols” (informal, ad hoc, detention facilities set up by local authorities) have long been used to contain the rising number of petitioners, the Chinese government denied their existence during its most recent Universal Periodic Review. The government has announced a number of reform measures designed to improve transparency and responsiveness of the petition system. In November 2013, authorities announced plans to abolish a long-held system of ranking provincial authorities according to their ability to limit local petitioners and maintain social stability.

105.   The Tribunal has also considered whether the resumption of his land and demolition of the family home has resulted in significant economic hardship that threatens the applicant's capacity to subsist. The applicant gave evidence that he was not a farmer but had previously worked in a [company] as [occupation]. He was given some overseas trip to South East Asia as bonuses for his work there. His parents did some casual work in the village. His wife's parents were farmers in a neighbouring village. He stated that the property on which his family home had been located in [Village 1] had a small plot of land where the family had kept [animals] and grew vegetables in the courtyard.

106.   The Tribunal accepts that the family was disadvantaged by the relocation arrangement and that their traditional means of supplementing their income was taken away by the resumption. However, it does not accept that the resumption threatened the applicant and his family's capacity to subsist. The applicant had work skills and experience as [occupation] for a [company], his wife had relatives with a farm and he had a cousin in a neighbouring village with whom he stayed in the last part of 2013. His uncle and other family members had contributed money and used connections in obtaining a false passport and paying for his travel expenses to leave China. The Tribunal does not accept that the resumption of his land and poor level of compensation threatened his capacity to subsist.

107.   Taking into account all the evidence before it the Tribunal does not accept that the applicant was a lead protester against a relocation and resettlement arrangement in his home village of [Village 1], that he was arrested, detained and mistreated by police (or local government authorities) for 2 days in September/October 2013 and does not accept that at the time he left China he was of any adverse interest to local authorities in [Village 1] or the wider local district.

108.   The Tribunal does not accept that the resumption of his land and poor compensation offered in 2013 constitutes serious harm.

109.   It does not accept that he was the holder of a Chinese passport issued in 2011 and thus it does not accept that the claimed passport and identity card were seized by Chinese local officials in 2013. It considers that he obtained a false passport with an Australian visa so that he could gain entry to Australia and subsequently apply for a permanent visa.

110.   It does not accept that if the applicant returns to China now or in the immediate future he will be arrested and detained for his previous petitioning conduct. It also does not accept, for the reasons set out above, that he will continue to use the petitioning system to continue to appeal the decision regarding the resumption of his land, the low compensation offered and the amount of money needed to purchase a resettlement apartment.

111.   The Tribunal is not satisfied that if the applicant returned to China now of in the immediate future that he would face a real chance of persecution for reasons of imputed anti­ government opinion, as a member of a particular social group being a person whose land has been resumed by local government authorities, a person who had lodged an appeal or for any other Convention related reason. The Tribunal is not satisfied that he has a well­ founded fear of persecution for a Convention reason.

112.   For the reasons given above, the Tribunal s not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

Does the applicant meet the complementary protection criterion?

113.   Taking into account the findings of fact set out above the Tribunal has also considered whether there are 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).

114.   '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.

115.   The Tribunal has accepted that the applicant's property in the village of [Village 1] was resumed in 2013. It accepts he may have been gone to the county government and appealed against what he perceived to be the unfair way he and his family were treated in this arrangement. The Tribunal accepts he may have been intimidated and harassed by local officials for this conduct as set out above. However, the Tribunal does not consider he suffered any other mistreatment as a result of his petitioning.

116.   The Tribunal also accepts that his economic circumstances may have deteriorated after the resumption and demolition of the property. However, the Tribunal considers that he has the skills and resources to find work in China and has considerable family support available to him as set out above.

117.   The Tribunal does not consider that he would be subject to any further threats, harassment or mistreatment on his return to China. His property has been resumed; the house demolished and his parents and wife are living elsewhere. The Tribunal does not accept that the Chinese authorities have any continuing adverse interest in the applicant and does not accept he will continued to petition or protest if he returns.

118.   The applicant left China on a false passport. If he returns on his own passport border officials may discover that he left on a false passport and this might result in him being charged with a criminal offence.

119.   The 2012 United Kingdom Home Office Report on China notes

32.04 Article 322 of the Criminal Law covers the penalties for illegal emigration. It states, „Whoever violates the laws and regulations controlling secret crossing of the national boundary (border), and when the circumstances are serious, shall be sentenced to not more than one year of fixed-term imprisonment and criminal detention or control.‟ [69a] As reported by the Canadian IRB on 9 August 2000, „Leaving China without exit permission or a passport is a criminal offence in China punishable of [sic] up to one year in prison.‟ [3b]

32.05 Articles 52 and 53 of the Criminal Law cover financial penalties for returnees. They state:

„Article 52. In imposing a fine, the amount of the fine shall be determined according to the circumstances of the crime.

„Article 53. A fine is to be paid in a lump sum or in installments [sic] within the period specified in the judgment.

„Upon the expiration of the period, one who has not paid is to be compelled to pay. Where the person sentenced is unable to pay the fine in full, the people‟s court may collect whenever he is found in possession of executable property.

„If a person truly has difficulties in paying because he has suffered irresistible calamity, consideration may be given according to the circumstances to granting him a reduction or exemption.‟ [69a]

1. Country information obtained in 2010 indicated that the penalties for illegally departing China, including departing on false documents range from a fine, ten days detention or in serious cases one year's detention or surveillance and a fine. There is no agreement amongst observers over whether these penalties are always applied. Older reports indicate that penalties would be light unless the person was a recidivist or the Chinese authorities had a particular interest in the case.[7]

   [7] IRB Canada 2000 CHN34770.E China Update 9 August

121.   On the evidence before it, the Tribunal does not consider that if the applicant returned to China he would face the death penalty or that there is any risk he will be arbitrarily deprived of his life. There is no evidence he would be tortured or subject to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.

122.   Whilst the Tribunal accepts that the applicant might be subject to a fine or a short period of imprisonment for departing China on a false passport it does not accept that such a sanction meets the requisite level of severity to constitute torture, cruel or inhuman or degrading treatment or punishment within the meaning of the Act.

123.   Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

124.   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

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

Louise Nicholls  14 March 2016

Senior Member

ATTACHMENT A

RELEVANT LAW

126. 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.

Refugee criterion

127.   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).

128.   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.

129.   Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

130.   There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

131.   Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

132.   Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

133.   Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

134.   Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

135.   In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

136.   Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

Complementary protection criterion

137.   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’).

138.   ‘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.

139.   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.

Section 499 Ministerial Direction

140.   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.