1416015 (Refugee)

[2015] AATA 3330

1416015 (Refugee) [2015] AATA 3330 (10 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1416015

COUNTRY OF REFERENCE:                  China

MEMBER:Susan Pinto

DATE:10 August 2015

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

Statement made on 10 August 2015 at 2:48pm

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 China. He is aged in his mid [age] and is from Fujian Province. He arrived in Australia on a Student visa on May 2006. He applied for a Protection visa [in] May 2008. The Refugee Review Tribunal (RRT) affirmed the delegate’s decision on 18 November 2008. The applicant sought judicial review in April 2009. The application for judicial review was unsuccessful, as were applications lodged to the Minister for Intervention pursuant to sections 48B and 417 of the Migration Act 1958 (the Act).

2. Following the decision in SZGIZ v MIAC [2013] FCAFC71, 3 July 2013, the applicant made a second application for a Protection visa [in] December 2013. The applicant essentially claimed that he would be harmed in China due to a debt incurred by his parents and the confiscation of his land.

   The delegate of the Minister for Immigration refused to grant the Protection visa [in] September 2014. The delegate did not accept the applicant’s claims and found that he had fabricated his claims. 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 Act. The delegate assessed the applicant against both the Refugees Convention and the Complementary Protection provisions. For the reasons discussed below, the Tribunal has assessed the applicant only against the Complementary Protection provisions.

   RELEVANT LAW

3. Section 48A of the Migration Act 1958 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. In SZGIZ v MIAC [2013] FCAFC71, 3 July 2013, the Full Federal Court found that s.48A 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 provisions in s.36(2)(aa) whilst he or she remained in the migration zone. According to SZGIZ, a person who had previously applied for and been refused a Protection visa on the basis of one of the criterion in s.36(2) is eligible to lodge a further valid application on the basis of one of the other criterion

4. As indicated above, the applicant has previously been refused a Protection visa in Australia. However, the visa application under review is a valid application because the applicant is considered ‘SZGIZ-affected’ as he has not left Australia since the final determination of his previous Protection visa application, which preceded the Complementary Protection provisions. As the applicant has previously had his claims for protection assessed under s.36(2)(a), the Tribunal must confine its consideration to whether he satisfies the requirements of s.36(2)(aa) and (c).

   CLAIMS AND EVIDENCE

   Application to the Department

5. When lodging the application to the Department, the applicant indicated that he speaks, reads and writes Mandarin. He indicated that he is unmarried and had [number] years of education in in China. The applicant did not provide any details of his religion on the application form.

6. The applicant stated, in response to questions on the application form as to what harm he fears upon his return, that he believes he will be harmed by creditors and the authorities. The applicant stated that he believes this will happen because the creditors incited his parents to borrow money and invest the money in a [corporation]. The applicant stated that as a result of the collapse of the [business] his parents are unable to pay the money. The authorities have used their land for a highway, but they did not receive fair compensation. The applicant will inherit those lands in accordance with Chinese traditional law because he is the only son in his family. If he is removed from China the creditors and the debt collectors will come after him for the debt. The applicant will be unable to meet their demands. He will also ask the authorities for fair compensation for the land and he will be mistreated by the authorities.

7. The applicant was interviewed by the delegate [in] June 2014. The Tribunal has listened to the CD Rom recording of the interview and is satisfied that the summary set out in the delegate’s decision record is accurate.

   Application for review

8. When lodging the application to the Tribunal, the applicant provided a copy of the delegate’s decision record.

9. The applicant appeared before the Tribunal on 7 August 2015to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by his registered migration agent, but the agent did not attend the hearing.

   ASSESSEMENT OF CLAIMS AND EVIDENCE

   Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, that there is a real risk that he will suffer significant harm?

10. The Tribunal accepts on the evidence before it that the applicant is a citizen of China. The Tribunal has, therefore, considered the applicant’s claims that there is a real risk he will suffer significant harm in China. As indicated above, the applicant has claimed in relation to the current application that he fears harm in China due to a debt owed by his parents, and as a result of the compulsory acquisition of his parents’ land in China. The Tribunal has considered the applicant’s written claims and his oral evidence to the Department and the Tribunal. Having considered all of the evidence, the Tribunal does not accept that the applicant has given a truthful account of his family’s experiences in China or his reasons for lodging a further Protection visa application following the refusal of his first application. The Tribunal considers that has fabricated a set of claims in an attempt to rely on the Complementary Protection provisions in a further attempt to remain in Australia.

11. The Tribunal firstly considers that the applicant’s oral evidence to both the Department and the Tribunal was extremely vague and unpersuasive. Thus, when interviewed by the delegate the applicant did not know  the precise amount of money owed by his parents, initially stating that it was three to four million yuan, but later indicating that he did not know. The applicant also did not know the name of the [business] his parents invested in and claimed that his [sibling] was living in Hunan, but his parents were moving from place to place and were in hiding to avoid harm. The applicant told the delegate that he did not know where they were living or when they had last lived in their home area in Fuqing, despite the fact that he had been in contact with them a fortnight earlier.

12. The Tribunal considers that the applicant’s evidence to the delegate in relation to the debt itself and his lack of knowledge of the debt to be problematic. The applicant was advised by the delegate that his claims in relation to the debt are integral to his application for protection, and was, therefore, on notice that the vague and unpersuasive nature of his evidence did not assist his application. However, when asked for further details about the debt by the Tribunal during the hearing, the applicant again exhibited limited knowledge in relation to the debt and was similarly vague and unpersuasive. The applicant was advised that the Tribunal was having difficulty determining the nature of his claims and what had happened to his parents in China, yet he continued to have considerable difficulty articulating his claims and spoke in generalities, rather than providing any specific details. Although the applicant told the delegate that his parents had not sold any of their land to repay the debt, he indicated to the Tribunal that since he was interviewed by the delegate they had returned to their village and his parents had sold two of their [land] to repay the debt. However, the applicant did not know when the debt initially arose, or how much of the debt was still owed, and continued not to know to whom his parents owed the money. The applicant claimed that his father only told him that he had paid some of the money but it was not enough. When asked what is happening to his parents, the applicant stated that they were being harassed and they came into the home and “smashed things”, but was unable to provide any further details in relation to this or why his parents would remain in the village if they were being pursued by creditors.

13. The applicant has claimed that the reasons for his lack of knowledge as to the debt are due to the fact that he has been told very little by his parents because he is in Australia and they wanted to protect him and told him he should not worry about these problems. The Tribunal does not accept the applicant’s explanation. The Tribunal is not satisfied that the vague and confused nature of his evidence is due to the fact that his parents have not told him much about the debt or their experiences as a result of the debt. The Tribunal does not accept that the applicant would fail to seek more information from his parents as to why he could not return to China to be with his family and instead remain in Australia and seek protection. Thus, the Tribunal does not accept the applicant’s explanation for his inability to provide considerably more detailed evidence in relation to his reasons for seeking Australia’s protection. In the Tribunal’s view, the applicant’s inability to do so is due to the fact that he has manufactured his claims for protection and has had considerable difficulty elaborating on his claimed fears.

14. As indicated above, although the applicant told the delegate during the interview that he did not know where his parents were living at that time and were moving from place to place he has since told the Tribunal that they have returned to live in their home town in Fujian. During the Tribunal hearing, the applicant stated that his parents are living in their home town in Fuqing because they had nowhere else to live and had returned there in June 2015 after his father was released from hospital. When asked why he had told the delegate that he did not know where his parents were living, the applicant stated that he knew they were in Hunan but he did not know where they were living, although he had previously stated that they lived in “the same place” as his [sibling and spouse] in Hunan. When asked by the Tribunal why his parents would return from Hunan to their home if they were fearful of the creditors, the applicant stated that they had nowhere else to go. He also claimed that if they had not returned they would not have been able to approach the government in relation to the confiscation of their land. The applicant denied during the hearing that he had told the delegate that he did not know where they were living. When asked why the creditors would have any interest in him given he was not involved in borrowing the money, the applicant told the Tribunal that they would pursue him because he is the only son in the family.

15. The Tribunal does not accept that the applicant told the delegate his parents were in Hunan. The Tribunal also does not accept that the applicant did not know where his parents were living when he was interviewed by the delegate, given that his evidence to the Tribunal indicates they were living in Hunan, with or near his [sibling].  The Tribunal considers that the applicant attempted to establish before the Department that his parents were in hiding in Hunan, but he has since forgotten this claim. The Tribunal also considers that the applicant’s evidence that they have returned to Fujian does not indicate that they were in hiding in Hunan as a result of threats or harm from creditors in relation to a debt, or as a result of the issue relating to the land. The Tribunal does not accept that the applicant satisfactorily explained why his family, who were allegedly being pursued by creditors in relation to a significant debt and were previously in hiding in Hunan, would return to their village and remain there rather than living with their [other child] in Hunan. The Tribunal is also not satisfied that the applicant has satisfactorily explained why the creditors would be interested in pursuing him in relation to a debt owed by his parents. The applicant’s own evidence indicates that he had no involvement in borrowing the money and has not been in China for 10 years. The Tribunal does not accept that the creditors would have any interest in pursuing the applicant rather than his own parents who are living in the village.

16. The Tribunal also considers that the applicant’s claims in relation to the land confiscation were similarly confused, vague and unpersuasive. Although the applicant first stated that his family only had one piece of land remaining, he subsequently told the Tribunal that the government had acquired the remaining piece of land and had bulldozed the land, but he did not know when this happened. When asked for further details relating to the land confiscation, the applicant stated that they wanted to acquire the land and his parents had several conflicts with them and they were harassing them. When asked about the conflicts and when they occurred, the applicant had difficulty elaborating and stated that they were when they came back from Hunan province and his brother in law also had a conflict with them and has had to hide in Hunan. The applicant did not know when the applicant’s family was told the land was going to be acquired to build a highway and did not know any details about the amount of compensation that was offered or why his family was unsatisfied with the amount, telling the Tribunal that it could telephone his village to inquire about these issues. When advised that the Tribunal did not intend to do so, and that the vague nature of his evidence may lead the Tribunal to find he is not truthful, he again stated that his parents have not told him much and he should not worry about it. When asked why he fears harm in relation to the confiscation of his family’s land, the applicant stated that he may not agree with the amount and this may result in him being harmed.

17. The Tribunal does not accept that the applicant’s parents land has been confiscated, and considers that his evidence at hearing which was that he had one remaining piece of land but that this evidence changed very soon after to no land as it had been bulldozed. The Tribunal also considers that his limited knowledge of the remaining piece of land which his parents allegedly had which has now been bulldozed by the government is indicative of the fact that this claim has been fabricated. The Tribunal does not accept that the land has been confiscated. Given that the Tribunal does not accept that the applicant’s land has been confiscated, the Tribunal does not accept that the applicant will protest in relation to this issue. Nor does the Tribunal consider that it is necessary or appropriate to make any inquiries in his village regarding this land as he suggested during the hearing.

18. The applicant has made claims for protection based on his religion in his first Protection visa application. The applicant did not provide any details of religion on the current application form in relation to his religion, but he told the delegate during the interview that he and his family are Catholics. The applicant was asked during the interview whether he feared harm for the reasons he had articulated in the first application, to which he replied that he did not. The applicant told the delegate that he and his family are Catholics but he feared returning to China only as a result of the issues relating to the debt and the land. The applicant was also asked during the hearing the reasons he feared harm and confirmed that it was in relation to these issues. He was given considerable opportunity to raise any other claims to fear harm, but did not do so. Given that the applicant has not raised any claims on the basis of his religion, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for this reason if he returns to China.  

19. Having considered the totality of the evidence, the Tribunal is not satisfied that the applicant genuinely fears harm in China. The Tribunal considers that the applicant has fabricated all of his claims and does not accept that his parents have had a dispute with the authorities in relation to the confiscation of his land or that they owe any debt or has been sought by creditors. The Tribunal considers that if they were living in Hunan it was because their [other child and] family lives in Hunan and not because they were in hiding in that province. Accordingly, having considered all of the evidence, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, that there is a real risk that he will suffer significant harm. Accordingly, the Tribunal is not satisfied that there is a real risk that the applicant will be arbitrarily deprived of his life; the death penalty will be carried out on the applicant; or the applicant will be subjected to cruel or inhuman treatment or punishment; or the applicant will be subjected to degrading treatment or punishment. The Tribunal finds, therefore, that the applicant does not satisfy the criterion set out in s.36(2)(aa).

    CONCLUSIONS

20. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa). It follows that the applicant is also unable to meet the criteria in s.36(2)(c) and he is not entitled to the grant of a Protection visa.

    DECISION

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

    Susan Pinto
    Member

    
    

    ATTACHMENT - RELEVANT LAW

22. In accordance with section 65 of the Migration Act 1958 (the Act), the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 (the Regulations) have been satisfied. The criteria for the grant of a Protection visa are set out in section 36 of the Act and Part 866 of Schedule 2 to the Regulations. Subsection 36(2) of the Act provides that:

    ‘(2)  A criterion for a protection visa is that the applicant for the visa is:

    (a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

    (aa)a non citizen in Australia (other than a non citizen mentioned in paragraph (a)) 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 non citizen being removed from Australia to a receiving country, there is a real risk that the non citizen will suffer significant harm; or

    (b)a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)a non citizen in Australia who is a member of the same family unit as a non citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.’

    Complementary protection criterion

1. An applicant for a protection visa who does not meet the refugee criterion in paragraph 36(2)(a) of the Act may nevertheless meet the complementary protection criterion in paragraph 36(2)(aa) of the Act, set out above.  A person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’.  The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in subsection 5(1) of the Act.

   Ministerial direction

2. In accordance with Ministerial Direction No. 56, made under section 499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration and Citizenship - ‘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.