1419957 (Refugee)

[2016] AATA 3604

1419957 (Refugee) [2016] AATA 3604 (18 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1419957

COUNTRY OF REFERENCE:                  China

MEMBER:Tania Flood

DATE:18 March 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 18 March 2016 at 9:10am

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of China, applied for the visas [in] November 2013 and the delegate refused to grant the visas [in] December 2014.

3. The applicants appeared before the Tribunal on 19 February 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. 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.

5. 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).

6. 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.

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.

9. The issue in this case is whether there is a real chance the applicants will face serious harm on return to China for a Convention reason or alternatively whether there are substantial grounds for believing there is a real risk they will face significant harm if removed from Australia to China.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Member of the same family unit

10. Subsections 36(2)(b) and (c) of the Act provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) of the Act who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include a spouse.  The Tribunal is satisfied on the evidence before it that the second named applicant is the spouse of the first named applicant and that the applicants are therefore members of the same family unit as defined in r.1.12.

11. The issue in this case is whether there is a real chance the applicants will suffer serious harm on return to China for a Convention reason or alternatively whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to China, there is a real risk they will suffer significant harm.

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

    Summary of claims

13. In his application for a Protection visa, the first named applicant makes the following claims:

14. He came to Australia under [a temporary via].

15. He was detained by the police on several occasions, harmed by the property developers and their associated thugs and intimidated by the officials. His wife has been stalked and intimidated by the thugs associated with property developers.

16. They are in fear of being detained by the police, persecuted by the officials and property developers and harmed by the thugs and the creditors.

17. They have a piece of land in China.  After they came to Australia, the neighbours with power started to encroach on their land which is of highly commercial value.  Thus he went back to China and had a building erected on the land.  Soon after, the property developers wanted their land.  They asked the officials to accuse us of illegal construction and to have our building bulldozed without the proper compensation. 

18. They have borrowed substantial money from the illegal money lenders with high interest. 

19. As a consequence of being removed to China they will ask for the land back or proper compensation and then they will be persecuted and mistreated.  If we cannot pay back the debt, we will be harmed by the creditors and their associated debt collectors.

20. The property developers have the authorities support to misappropriate their land.  The authorities therefore will not protect them if they are removed to China.

    Findings and reasoning

    Country of reference

21. The applicants have consistently maintained they are citizens of China.  The first and second named applicants have previously provided the Department with copies of their passports which supports their claimed identity and nationality.  There is nothing in the evidence before the Tribunal to suggest that the applicants have a right to enter and reside in any country other than China. In the absence of any evidence to the contrary, the Tribunal finds that they are nationals of China and has assessed their claims against China. 

    Credibility

22. Having carefully considered the information before it, and having had the benefit of interviewing both the first and second named applicants, the Tribunal is of the view the applicants respective evidence on key aspects of their claims is significantly inconsistent.   The Tribunal believes this reflects very poorly on their credibility.  The Tribunal does not find the applicants to be reliable witnesses.  The reasons for this finding are outlined below.

    Threats and harassment from government officials and the money lender to surrender their land and/or complete payment of the loan which was obtained to construct a building on their land.

23. The applicants have consistently claimed that the first named applicant inherited a piece of [land].  The applicant claimed at hearing that the threats and difficulties he experienced in relation to this land commenced well before he returned to China in June 2009.  He said that this is what prompted the decision to construct a building on the land as he thought it would secure his rights to the land.  When the second named applicant was asked when the problems first arose she stated it was in 2011.

    Construction of building and loan from money lender

24. The first named applicant stated that the building was constructed during his visit to China in 2009 whereas the second named applicant said it was built in 2011.

25. When asked what type of building he constructed on the land the first named applicant said it was a two storey building designed for commercial shops.  The second named applicant stated that the building which they constructed was for residential purposes.  She spoke, on several occasions, of the need for them to build a home for their [children] who continue to reside in China.  When asked if there was any other purpose intended for this building she stated clearly that it was for residential purposes only.

26. The Tribunal asked the applicants how much the building construction had cost.  The first named applicant stated that they paid 2,000,000RMB whereas the second named applicant put the figure at less than 1,000,000RMB (several hundreds of thousands). 

27. When asked how the building construction was financed the first named applicant stated that he had borrowed the money from a money lender known as [Mr A].  He said that he has made some repayments and has evidence of funds transfers however he said that the loan was not documented.  He said that the term for repayment of the loan is 2 years.  The Tribunal expressed surprise that such a large loan would not be documented in any way.  The second named applicant was asked the same question and said that the money was borrowed from relatives and friends, with specific mention made of her husband’s [sibling].  She said there was no agreed timeframe for repayment but that the loan was documented and a copy of that document is kept at her parents-in-laws house in China.

    Government compensation

28. The first named applicant stated that he was offered 30,000 to 50,000RMB by the government for his land but he refused to take it as the land had high commercial value.  On a different occasion during the hearing he said that the government eventually offered to pay off the debt to the money lender in exchange for the land.  The Tribunal put it to the first named applicant that he could accept this offer and thereby alleviate any fears he has in relation to the government officials and the money lender.  The first named applicant insisted that this would be a big financial loss for him as he could make money from the shops he intended to build.  The Tribunal notes that the first named applicant also indicated that he owns a further property, also [inherited], which is valued at [amount] RMB.  The Tribunal put it to the first named applicant that he could also sell that property to pay off his debts to the money lender.  He said he could not do that as his family would have nowhere to live.  The Tribunal pointed out that his parents are still residing in the same area with his [children] and that they could live with them also.

29. In contrast to the above, the second named applicant stated that the government offered them no compensation at all for their land.

    Claimed detention

30. Both applicants stated that the first named applicant was detained on three occasions.  The Tribunal noted that this information is different to that which was provided to the Delegate, namely that he was detained twice.  Nevertheless the first named applicant stated that he was first detained [in] March 2011 and again 3 days later [in] March 2011.  He said that the third detention was during their third trip back to China from Dec 2011 to February 2012.  He said that on the third occasion he was beaten.

31. The second named applicant stated that her husband was detained once during the first trip and twice during the second trip.  Further she stated that her husband was beaten on the first occasion.  Whereas she appeared somewhat unclear about the timing of the detentions the Tribunal considers her response to when her husband was beaten was unambiguous.

    Claimed intimidation and stalking of second named applicant

32. When asked if she had experienced any personal difficulties in relation to these matters the second named applicant said she had to pay money to bail her husband out of jail.  When asked whether anything else had happened to her she said no.  The Tribunal pointed out that the application for the Protection visa states that she was intimidated and stalked by thugs associated with property developers.  At that point the applicant changed her evidence and said that yes she was stalked and intimidated as claimed.  As to why she first answered no to this question she said that she didn’t recall this incident.  At first she said that it happened often and then she said people once came to their house to intimidate her.  When asked who these people were she spoke about being harassed in relation to the building they had constructed.  The Tribunal asked whether she was referring to the government officials and she said yes.  The Tribunal pointed out that the written claims state she was intimidated and stalked by thugs associated with property developers to which she replied she had no idea whether the government and the property developers consulted each other.  Having regard to the inconsistency of her answers in this respect, together with the other significant inconsistencies between her and her husband’s evidence, the Tribunal does not accept that the second named applicant was intimidated and stalked by anybody in relation to land and or the construction of any building.

    Responses to s.424(a) letter

33. On 22 February 2016 the Tribunal wrote to the first and second named applicants, pursuant to requirements at s.424(a) of the Act, asking them to comment on or respond to numerous inconsistencies in their evidence.  On 9 March 2016 the applicants replied that they were referring to two different pieces of land, on which different structures were built in 2009 and 2011 respectively, using funds from different sources.  The second named applicant was referring to a property at [Village 1] in [Town 1] whereas the first named applicant was referring to their property at [Town 1]. 

34. The Tribunal notes that at hearing the first named applicant stated that the property which was under threat is located in [name] Rd in Fuqing City and not [Town 1] as it is now submitted.  Whereas at hearing the first named applicant referred to a second residential property also bequeathed to [him] he said that this property was located in [another] Village not [Village 1], [Town 1] as the applicants’ would now have the Tribunal believe.  

35. At no time during the hearing or in his written claims has the first named applicant indicated that a second piece of land or property is also at risk of being seized or demolished which could account for his wife’s different evidence.  Further, the Tribunal notes that the second named applicant described the problems in relation to the land she was referring to at hearing in the same manner as the first named applicant.  Namely, that the government wanted to stop them undertaking any further building on the property and knocked down half the completed structure.  The Tribunal finds it implausible that having encountered such difficulties with the building they attempted to construct in 2009 the applicants would have embarked on a second building project in 2011 and encountered exactly the same problem from the authorities.

36. The Tribunal notes that copies of various photographs are attached to the applicants’ letter of 9 March 2016 showing what appear to be a completed residence and a building under construction.  There is no explanation attached to these photographs but the Tribunal has inferred the photographs are intended to demonstrate the existence of two different properties.  Be that as it may, there is nothing before the Tribunal to indicate that these properties are owned by the applicants nor is there anything in the photographs themselves, such as images of the applicants, which could lead to a finding they belong to them.

37. For the reasons indicated above, the Tribunal is not persuaded by the applicants’ responses to the above matters.  The Tribunal does not accept that the first and second named applicants were referring to different pieces of land at hearing. 

38. When the matter of the loan which the first named applicant stated was obtained from a money lender named [Mr A] was discussed with the first named applicant at hearing he indicated that he has made certain repayments against the loan and offered to provide copies of funds transfers.  Instead of evidence of funds transfers, attached to the applicants’ letter of 9 March 2016, in response to the s.424(a) letter sent by the Tribunal on 22 February 2016, are three translated notes.  The Tribunal notes that these appear to be handwritten notes on blank sheets of paper.  The translated copies indicate that payments were made to [Mr A] on behalf of the first named applicant through an [agent]. Given the unofficial nature of the documents provided the Tribunal has given no weight to the submitted evidence of loan repayments made to [Mr A].  As such, the concerns arising from the inconsistency of the first and second named applicants responses at hearing to the source of the loan funding are not in the Tribunal’s view overcome.

39. The responses to the Tribunals letter of 22 February 2016 do not overcome the credibility concerns the Tribunal has in regard to the applicants’ evidence.  The Tribunal does not accept the applicants have a piece of land which is under threat of seizure from government authorities, property developers and associated thugs or a money lender.  The Tribunal does not accept that a building constructed on the applicants land was demolished or that the applicants have been offered inadequate compensation for any land or building.  The Tribunal does not accept the applicants are in debt to a money lender or anybody else. 

40. In its letter of 22 February 2016 the Tribunal also asked the applicants, pursuant to the requirements at s.424(a) of the Act, to comment on or respond to inconsistencies in their evidence regarding the dates on which the first named applicant was detained by the authorities and on which occasion he was beaten.  As noted above the second named applicant claims that her husband was detained by the authorities once during the first trip and twice during the second trip whereas the first named applicant stated he was detained twice during the second trip and once during the third trip.  The second named applicant stated that her husband was beaten on the first occasion he was detained whereas the first named applicant stated it occurred on the third occasion. 

41. In their letter of 9 March 2016 it is submitted that the first named applicant made three trips back to China.  In his second and third trips the second named applicant travelled together with her husband.  Given the second named applicant regards the second and third trips as her first and second trips respectively, there is no inconsistency about when the husband was detained.  In respect of the first named applicant being beaten while in detention the second named applicant states she confused the incidents.

1. The Tribunal is prepared to accept that the first and second named applicants’ evidence regarding the timing of their respective trips together is consistent with the claimed occasions on when the first named applicant was detained.  However, as noted above the Tribunal does not accept the applicants have a piece of land in relation to which they have encountered any difficulties from government authorities, property developers and associated thugs or any money lender as claimed.    Similarly, the Tribunal does not accept the first named applicant was ever detained or beaten for this reason. 

   Trips back to China and timing of application for a Protection visa

2. When asked about the purpose of his three trips back to China in 2009, 2011 and 2012 the first named applicant stated that all three trips were made in relation to the problems he was experiencing over his land.  He confirmed that on all three occasions he was involved in arguments and discussions with government officials over the land.  When asked if he experienced any difficulty entering or exiting the country on any of those occasions he said he did not. 

3. The Tribunal put it to the first named applicant that DFAT’s report of 2015[1] indicates that Chinese airports have a centralised system of name matching alerts and the fact that he was never stopped on entry or exit suggests he is not a person of any adverse interest to the Chinese authorities.  He replied that the government is not interested in him, rather they want his land and they hope he leaves China forever.

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

4. It is accepted the applicants returned to China as documented but the Tribunal is not persuaded it was for the reasons claimed.  In this respect the Tribunal notes the applicants have [young] children residing with their grandparents in China and considers the trips could have been made to visit their children.

5. The Tribunal also put it to the first named applicant that he claims his problems commenced well before 2009 and escalated during each return visit but that he only applied for a Protection visa in 2013 which could suggest he did not and does not fear returning to China.  Further the Tribunal suggested that it appears he only applied for a Protection visa when all other visa options had ceased.  In response, the first named applicant stated that he has no idea why he did that.    He then repeated his fears of returning to China. The Tribunal considers the applicants’ unexplained delay in applying for Protection visas also undermines their claims to fear returning to China.

6. Having carefully considered all the information before it, and in view of the serious inconsistency and credibility concerns discussed above, the Tribunal does not accept the applicants’ claims.  The Tribunal does not accept the applicants have a piece of land which is under threat of seizure from, government authorities, property developers and associated thugs or a money lender.  The Tribunal does not accept that a building constructed on the applicants land was demolished or that the applicants have been offered inadequate compensation for any land or building.  The Tribunal does not accept the applicants are in debt to a money lender or anybody else.  The Tribunal does not accept the first named applicant was detained or beaten or intimidated by government authorities or anybody else or that the second named applicant was stalked or intimated by thugs associated with property developers. The Tribunal does not accept that the applicants were, or are, persons of interest to the Chinese authorities for any reason, or that they are genuinely fearful of returning to China.  The Tribunal has concluded that the applicants have fabricated their claims in an effort to obtain a favourable visa outcome which will enable them to remain in Australia.

7. The Tribunal finds there is no real chance or risk that the applicants will suffer serious or significant harm on return to China for any reason.  The Tribunal finds the applicants do not satisfy the criterion set out in either s.36(2)(a) or (aa) of the Act.  It follows that the applicants are also unable to satisfy the criterion set out in 2.36(2)(b) or (c) of the Act. 

8. As they do not satisfy the criteria for a protection visa they cannot be granted the visa.

   DECISION

9. The Tribunal affirms the decision not to grant the applicants Protection visas.

   Tania Flood
   Member