1421322 (Refugee)

[2016] AATA 3888

1421322 (Refugee) [2016] AATA 3888 (27 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1421322

COUNTRY OF REFERENCE:                  China

MEMBER:Linda Holub

DATE:27 May 2016

PLACE OF DECISION:  Sydney

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

Statement made on 27 May 2016 at 5:24pm

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant who claimed to be a citizen of China arrived in Australia [in] January 2014. He applied for a Protection visa [in] April 2014 and the delegate refused to grant the visa [in] December 2014.

3. The applicant appeared before the Tribunal on 11 May 2016 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

RELEVANT LAW

Refugee criterion

1. 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.

2. 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).

3. 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.

Complementary protection criterion

1. 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’).

Section 499 Ministerial Direction

1. 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.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant has a well-founded fear of being persecuted in China for reasons of his race, religion, nationality, political opinion or membership of a particular social group and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to China, there is a real risk that he will suffer significant harm.

10.  The applicant’s written claims for protection are contained in the application forms submitted to the Department of Immigration and Border Protection [in] April 2014.  The Tribunal had before it the Department’s file relating to the applicant’s protection visa application and the Tribunal’s file relation to the review application.  In making its decision the Tribunal has given consideration to the delegate’s decision record.

a.the applicant left China because he was prosecuted[1] by the Chinese government due to protests he made against what he considered was unreasonable compensation for the demolition of his house and acquisition of his land.

[1]  At hearing, the Tribunal confirmed that he meant persecuted not prosecuted.

b.In June 2013 his family received a land acquisition notice from the [Name A] City Government for the family‘s [number] acres of land.  Because he was working in the city he rented the land at the price of RMB700’ per acre per year.  All [number] acres of his land was within the scope of demolition. The reason for the land acquisition was because the government wanted to build a [name] Road in Shijazhuang. Because it was a government project residents were not allowed to express their views.  The [Name A] City Government requested land holders sign a contract before July 2013. He was offered RMB [amount A] as compensation for his [number] acres of land.  He did not consider this compensation reasonable and therefore did not sign the land acquisition contract.

c.In July 2013 the City Government informed his employer, [name] Company that he did not agree with the demolition and to allow him to have a long ‘holiday’.  His boss asked him to go for a holiday. His company fired him because of this and he could not go to work he lost all his sources of income and began to petition the local government.

d.In August 2013 they forced the acquisition and started construction.

e.[In] September 2013 he lodged a petition which was accepted by the receptionist. But [in] September 2013 police came to his home and said that he was petitioning illegally and asked him to go to the police station. He was forced into the police car. At the police station he was beaten, threatened and he was asked him to cancel his petition. He was illegally detained for [number] hours and suffered bullying and finally was forced to sign a cancellation of the petition.  Following his release he does not have human rights and freedom. He was watched by police and his neighbours and was therefore forced to flee China to seek protection in Australia.  He found an agency to help him arrange a visa to travel overseas.

f.If he returns to China he will continue to fight for his legitimate rights and petition the local government if he continues to present a petition will be stopped by the Chinese government. The government will use a variety of cruel means to treat him. He fears it he returned to China he will once again be detained, assaulted, intimidated and monitored.  Lower levels of government will stop him from petitioning to higher levels of government.

g.He does not believe the authorities can or will protect him. This is because the Chinese government will only consider its own interests and not think about the interest of the farmers. If a farmer loses his piece of land he will have no way to live. The village officials however treat land acquisition as their own opportunity to make money. They use their power against people and suppress persecution. He does not think the government would protect him.

11.  The delegate’s Decision Record [in] December 2014 indicates that the applicant was interviewed by the Department [in] November 2014.  The delegate refused to grant a Protection visa to the applicant as the delegate “did not find that the applicant’s claims to be credible.  In particular, [he] did not accept that the applicant’s land was forcibly acquired by the Chinese local government authorities or that he was paid inadequate compensation or that he petitioned the government or that he was arrested and mistreated by the police for this reason or that he will recommence petitioning if he were to return to China”.[2]

[2]  DIBP file, folio 40.

12.  [In] December 2014, the applicant then applied for a merits review of that decision by the Tribunal.  The Tribunal wrote to the applicant on 26 February 2016 advising that a hearing had been scheduled for 6 April 2016.  On 11 March 2016 the Tribunal wrote to the applicant advising that circumstances required the hearing to be rescheduled to 11 May 2016.  The applicant appeared before the Tribunal on that date to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

FINDINGS AND REASONS

Country of nationality

13.  On the basis of the available information, the Tribunal finds that the applicant is a national of China and that his claims should be assessed against China. He travelled to Australia as a holder of a passport issued by the Chinese authorities.

Has the applicant suffered any of the claimed harm?

14.  The applicant confirmed at hearing that he wrote his application and it was translated by a friend who read it back to you.  He also confirmed that he stood by the evidence he provided at his interview and that was nothing he wished to change.

15.  In responding to question 43 on the Protection visa application the applicant had written that he would provide additional information later.  The Tribunal asked the applicant what he had intended to provide.  He explained it was a certificate from the village showing how much money was to be given to him.  The Tribunal reviewed the contents of the applicant’s file and informed him that no such document was on file.  He claimed with 100% certainty that he had provided the original to the Department of Immigration and Border Protection.  He then gave contradictory evidence about when the document was provided.  The Tribunal explained the folioing process of and again indicated that the document he referred to was not there.

16.  The applicant stated that he lived in [Name A] City which was a city within Shijiazhuang City, in Hebei Province.  He worked in a [store] in [Name A] City.

17.  The applicant claimed he came to Australia, firstly because he Iost his job due to the acquisition of his land.  He explained he had not wanted to sign the contract that was being offered to him.  Public Security and police asked his employer to sack him.  When asked what harm had he suffered in China, he stated that after he made a petition he was confined by the police for [number] hours where he was beaten and electrocuted. 

18.  The Tribunal asked the applicant if he had any difficulty leaving China.  He said yes, because he was given little compensation.  When the question was repeated.  He again said yes and referred to the fact that he was not allowed to petition and claimed that he was monitored but acknowledged he had not been prevented from departing China.  He obtained his passport in 2009 and had travelled to [countries] on holidays. 

19.  The original application refers to remaining relatives in China, in particular, his father his wife and a [child] born in [year].  At hearing, when asked about his remaining relatives he referred to [number] children.  The Tribunal confirmed that he did indeed have [number] children his younger [child] was born in [year]. When asked why only one was included in the application he responded he should have listed [number] did not know why there was only reference to his [one child] in the written application.

20.  The applicant stated he speaks with his wife every day.  When asked what they talk about he said his work here and about the children.  His family continues to live in [Name A] and his wife runs a small business at home selling [goods].  The money she raises is insufficient for the family to survive on, so therefore he sends them money on a regular basis.

21.  In relation to the acquisition of his land, the applicant gave evidence that the authorities were building a high speed ring road around Shijiazhuang City.  He explained it was an important piece of infrastructure for the city. It required all [number] acres of the family’s land and they were offered RMB [amount A] in total.  In June 2013 he was given contract to sign with construction due to start in August 2013.

22.  The applicant explained that his father lived in the village and had farmed the land but that he and his wife worked in the city and had been there for more than 10 years.  They had a house in the village and a residence in the city.  The land has been leased to them for 30 years but he had been sub-leasing to others for five years.  The applicant said he was paid RMB [amount] per acre per year amounting to RMB 4,200 per year for the use of the land.  Prior to that the family planted [grain] on the land.  The applicant claimed the title of the lease was in his name.  When asked when he obtained the lease he said in 1990.  The Tribunal noted that he would have been a teenager in 1990 and it sounded unusual for a teenager to obtain a 30 year lease for that land.  He then said that his father held the lease until he (the applicant) married.  He said in China land is often transferred to the child at that point.  The Tribunal asked the applicant when the land was transferred to him.  The applicant thought for a long time and said about 10 years ago – 2006.  The Tribunal reflected to the applicant that his application stated that he was married in 1993 that he was providing contradictory evidence.  He then said it was because he had an official job in the city.

23.  The applicant stated that he did not sign the compensation offer as he was requested to do and then in July, the police went to his boss and requested that he be dismissed.  The applicant also said that the project would proceed regardless of whether he accepted the compensation offer or not because it was a very important project.  The Tribunal asked why the police would go to his employer given that.  He responded saying they went to his boss to pressure him to sign the contract.  From mid-July 2013, he no longer held his position.

24.  The Tribunal put it to the applicant that he been receiving RMB 4,200 per year sub-leasing the land and with an offer of RMB[amount A] was being offered 66 years of rental income when there were only four years remaining of the lease.  The Tribunal suggested that on the surface it appeared that he had received a good offer and his claimed rejection of such an offer appeared illogical and implausible.  The applicant responded saying that although they originally had a 30 year lease they would be able to obtain an extension.  The Tribunal put it to the applicant that even if he obtained another 2 lots of 30 years he would still be ahead financially.  The applicant then stated that his land was within the integrated area of Beijing and Shijiazhuang city and the value could go up and that residents in the south of the city were being offered more.  The Tribunal explained to the applicant that his claims appeared not to be sound given the evidence he was providing regarding the offer of compensation and the income had been earning.

25.  The Tribunal attempted to explore with the applicant what happened after he lost his job.  He said that in September he made a petition to the Bureau of Petitions. The Tribunal asked the applicant to backtrack a little and describe what occurred at the time the land was acquired.  The applicant could not remember what date the land was formerly taken from the family.  The Tribunal expressed surprise that this date did not have sufficient significance for him. The applicant then said it occurred in mid-August but repeated that he could not remember the date.

26.  Although the applicant could not remember the date the acquisition occurred, he remembered that on [1] September 2013 he lodged a petition.  The Tribunal asked the applicant why he waited over 2 weeks before lodging the petition.  He said it was because the officials in the village were asking him to sign the contract. The Tribunal indicated that this did not explain why he waited two weeks before lodging the petition.  He then said it was because he was stubborn. 

27.  The applicant stated that on [2] September police came to his home and said that he was petitioning illegally and asked him to go to the police station. The police told him he cannot make petition beyond a certain level of government.  In the beginning they tried to persuade him to sign the contract, and then they beat him and confined him for a day.  The Tribunal asked the applicant if the police only came once.  The written application referred to one event on [6] September.  In relation to the discrepancy of dates, he said he remembered it occurred on [2] September.  The Tribunal noted to the applicant that it was concerned about this discrepancy given he was satisfied that his written application accurately reflected his claims.

28.  After this incident he was not allowed to leave his residence.  He said since he was in the village, all the neighbours knew where he was and he had to report to the police.  The Tribunal sought clarification as tp why he would be in the village as he had previously stated that he was living in the city.  He explained that because he lost his job, he moved back to the village but his wife and children remained in the city.  The Tribunal asked the applicant when he had moved back to the village and he said it was before the acquisition of the land occurred and the commencement of the construction.  This further concerned the Tribunal in relation to why he was unable to provide any details about what occurred on the day the land was acquired.

29.  Information and evidence presented to the Tribunal overall did not satisfy the Tribunal that the applicant left China because he was persecuted by the Chinese government due to protests he made against what he considered was unreasonable compensation for the demolition of his house and acquisition of his land or that he was illegally detained for 24 hours at a police station and after his release was watched by police and his neighbours.

30.  While the applicant was able to reiterate the claims he had made in his written statement (albeit with some discrepancies), he was unable to provide any further specifics of substance. His written claims and indeed the evidence presented at hearing lacked the depth expected and did not satisfy the Tribunal as being sufficiently detailed as could be expected from an applicant who had actually been through the process of forced land acquisition and subsequent harm as claimed.  Further, the Tribunal put significant weight on the fact that the offer made to the applicant was in the circumstances he described a good offer as previously outlined, and therefore his claimed rejection of it was implausible.  These factors together with the discrepancies in the evidence troubled the Tribunal to a sufficient degree.

31.  For these reasons, the Tribunal rejects that the applicant’s land was compulsorily acquired, that he petitioned the government about this, that he was sacked as a result and arrested and beaten by police.  The Tribunal was satisfied that the applicant has fabricated the claims for the purpose of applying for Protection.

Is there a real chance or a real risk of serious or significant harm occurring to the applicant?

32.  The applicant gave evidence that in May 2014 when he was in Australia his father accepted RMB [amount B] as compensation.  Nevertheless, the applicant claimed he will continue to petition because he lost his job and his land.  The Tribunal asked the applicant why it was not possible for him to obtain another job. He said that after he finalises the compensation he will be able to find work.  The Tribunal put it to the applicant that by virtue of having accepted the RMB [amount B] as far as the authorities are concerned, his family had been compensated.  He agreed but said from his point of view the amount was lower than the amount originally offered and he considered it unreasonable.

33.  The Tribunal has regard to the DFAT country report on China dated 3 March 2015 which notes that:

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]

[3] Department of Foreign Affairs and Trade 2015, DFAT Country Report: People’s Republic of China, 3 March, p.11 <CISEC96CF1259>

34.  A February 2011 article in The Economist indicates that ‘On January 21st, with much fanfare, the central government announced new regulations aimed at curbing the often brutal eviction of city residents to make way for urban development’. The article continues:

The need for such rules has also long been debated, but the central government has delayed taking action in the face of stiff resistance from local governments. For them, grabbing residential land and reselling it to developers is a huge source of revenue.

The new regulations clarify the “public interests” that allow local governments to take over residential property. These include government building projects related to energy or transport infrastructure, or housing for the poor. They do not include commercial projects, which local governments often use to justify land appropriations. Forcing people out of their homes by cutting off utilities or road access is banned. Courts are to settle disputes.

But it is mainly poorer homeowners who are affected by these evictions, whereas the new rules leave local governments with great scope for carrying on as usual. The rules do not apply to evictions from rural land, where most disputes occur. In such cases, even more than usual, the courts are under the thumb of local governments.[4]

[4] ‘China’s property market: Protecting the middle class’ 2011, The Economist, 3 February < Accessed 26 March 2015 <CXCB3E63420658>

35.  Another article in The Economist gives further information on the regulations.[5] Information in a July 2011 Immigration and Refugee Board of Canada response to information request, which refers to sources that report ‘on 21 January 2011, China’s State Council passed new regulations on the expropriation and compensation of housing in urban areas that took immediate effect’, indicates that among the requirements included in the new regulations was that ‘owners must be compensated at the market price of similar properties’.[6] The US Congressional-Executive Commission on China also reported that the PRC Regulations on Expropriation and Compensation for Housing on State-Owned Land (Urban Expropriation Regulations), ‘if fully implemented, should offer greater protection to urban land rights holders… Unlike previous legislation, the Urban Expropriation Regulations also provide for payment of market value, grant rights holders some procedural protections, such as payment of the purchase price before the owner vacates the property, and include a process for administrative review of the compensation amount if desired’.[7]

[5] ‘Private property in China: Redevelopment with a human face?’ 2011, The Economist, 28 January < Accessed 1 April 2015 <CXCB3E63420662>

[6] Immigration and Refugee Board of Canada 2011, China: 2011 regulations regarding urban housing expropriation and compensation; state response to citizens who resist expropriation of rural land and urban property, CHN103768.E, 6 July <CHN103768.E>

[7] Congressional-Executive Commission on China 2011, Annual Report 2011, 10 October, p.193 < Accessed 18 October 2011 <CIS21710>

36.  According to an October 2012 Amnesty International report:

In January 2011 the central government issued regulations outlawing the use of violence in urban evictions and granting urban owners facing eviction new protections, including the right to air concerns in public hearings, file legal appeals and receive adequate compensation based on market value. Housing rights activists and lawyers say the new urban regulations are insufficient especially because they only apply to home owners and not renters, and that the government has not extended similar protections, however weak, to people living in rural areas. This would require long promised revisions of the 1986 Land Administration Law.[8]

[8] Amnesty International 2012, Standing Their Ground: Thousands face violent eviction in China, ASA 17/001/2012, October, p.4 < Accessed 11 October 2012 <CIS24185>

37.  A significant problem with the regulations was ‘the lack of independence of Chinese courts hindering their ability to ensure that victims of rights violations receive an effective remedy’. The State Council had ‘given courts the ability to block expropriations if they find the compensation is unfair, or that the expropriation is illegal’, and the regulations allowed ‘victims of forced evictions to seek redress through the legal system. However, even if the courts uphold victims’ claims, which based on their track record to date is unlikely they will still be very reluctant to hand down appropriate remedies due to the undue influence of local party officials. It would take a brave judge to rule against the wishes of the local party cadres who effectively act as his or her superior including controlling the courts’ budgets’.[9]

[9] Amnesty International 2012, Standing Their Ground: Thousands face violent eviction in China, ASA 17/001/2012, October, p.50 < Accessed 11 October 2012 <CIS24185>

38.  The May 2014 paper on land policy reform in China indicates that:

On April 10th, 2012, the Supreme People’s Court issued a judicial interpretation of the 2011 Regulation on the Expropriation of Buildings on State-owned Land and Compensation. The interpretation specifies three paths by which local courts may reject government housing demolition requests: (1) unfair compensation, (2) illegality of expropriation itself, (3) violation of law in the expropriation process. By specifying legal grounds through which the expropriation and demolition decision itself can be challenged, the Supreme People’s Court is, at the very least, providing a stronger rhetorical basis for Courts to act as a gatekeeper for illegal and manifestly unfair land expropriation cases. Whether the Courts will use this gatekeeper power more frequently and whether these decisions will be enforced are another matter altogether.[10]

[10] Wong, V 2014, Land Policy Reform in China: Dealing with forced Expropriation and the Dual Land Tenure System, Occasional Paper No.25, May, Centre for Comparative and Public Law at the Faculty of Law, The University of Hong Kong, p.65 < Accessed 2 April 2015 <CIS2F827D92360>

39.  The October 2012 Amnesty International report also notes that the 2011 regulations on urban expropriations ‘require, among other things, that the public be consulted about development plans that involve evictions and that city and county governments organize feasibility studies on compensation for expropriation and “disclose information for public comment for a period of no less than 30 days.”’ The report continues:

However, numerous examples suggest that Chinese citizens are rarely legitimately consulted in practice prior to evictions and that there is little to no transparency in most cases… Victims, lawyers and housing rights activists told Amnesty International that residents often learn they are facing eviction only by word of mouth or by the sudden appearance of a poster on a neighbourhood wall just weeks or days before demolition is scheduled. In some cases Amnesty International reviewed, residents received no formal notice at all. Our research showed that local authorities routinely neglected to convene public hearings, and residents and their advocates told Amnesty International that on the rare occasions authorities convened hearings, those meetings were only for show. Local officials sometimes told residents they would be evicted and then refused to entertain objections or alternative proposals. In other cases, authorities pledged to relocate residents during the meetings but later demanded payment for new homes.[11]

[11] Amnesty International 2012, Standing Their Ground: Thousands face violent eviction in China, ASA 17/001/2012, October, p.16 < Accessed 11 October 2012 <CIS24185>

40.  The Chinese state-run English-language newspaper, China Daily,[12] reported in October 2013 that ‘Since being enacted, the 2011 regulations have helped reduce the number of conflicts resulting from demolitions in the cities, according to lawyers’.[13]

[12] China Daily is reported to be ‘a state-run newspaper’. see Levin, D 2014, ‘China Moves to Rein In Messaging for Mobile’, The New York Times, 7 August < Accessed 8 August 2014 <CX324237> It describes itself as ‘the leading English-language news organization in China’, see ‘About Us’ n.d., China Daily < Tang Yue 2013, ‘Laws bring reduction in forced demolition’, China Daily, 14 October < Accessed 1 April 2015 <CXC28129414153>

41.  In concluding observations on the second periodic report of China in June 2014, however, the UN Committee on Economic, Social and Cultural Rights expressed concern about the lack of effective implementation of the 2011 regulations, stating that:

30. The Committee regrets that the State party has failed in implementing its previous recommendation… and is seriously concerned about the information received on the thousands of forced evictions carried out with inadequate or no notice in the State party. While noting the adoption of the 2011 Regulations on the Expropriation of Houses on State-owned Land and Compensation, prohibiting the use of violence and granting urban home-owners facing eviction the rights to consultation and informed consent, adequate compensation and effective legal remedies, the Committee remains concerned about the lack of effective implementation of those regulations (art. 11).[14]

[14] UN Committee on Economic, Social and Cultural Rights (CESCR) 2014, Concluding observations on the second periodic report of China, including Hong Kong, China, and Macao, China, 13 June, UNHCR Refworld, pp.9-10 < Accessed 19 August 2014 <CIS29664>

42.  The 2013 Amnesty International annual report on China also indicates that ‘Enforcement of the 2011 Regulations on the Expropriation of Houses on State-owned Land and Compensation remained weak’.[15] Earlier, in May 2011, non-governmental organisation (NGO) Chinese Human Rights Defenders reported that Chinese officials in cities were continuing ‘to carry out forced evictions and housing demolitions’, and that the new regulations had ‘done little to curb the worst of these abuses’.[16]

[15] Amnesty International 2013, Annual Report 2013 – China, 23 May < Accessed 28 May 2013 <CX308002>

[16] Immigration and Refugee Board of Canada 2011, China: 2011 regulations regarding urban housing expropriation and compensation; state response to citizens who resist expropriation of rural land and urban property, CHN103768.E, 6 July <CHN103768.E>

43.  According to the US Department of State’s report on human rights practices in China for 2013:

Forced relocation because of urban development continued and in some locations increased during the year. Protests over relocation terms or compensation were common, and some protest leaders were prosecuted. In rural areas infrastructure and commercial development projects resulted in the forced relocation of millions of persons.

Property-related disputes between citizens and government authorities, which often turned violent, were widespread in both urban and rural areas. These disputes frequently stemmed from local officials’ collusion with property developers to pay little or no compensation to displaced residents, combined with a lack of effective government oversight or media scrutiny of local officials’ involvement in property transactions, as well as a lack of legal remedies or other dispute resolution mechanisms for displaced residents. The problem persisted despite the central government’s efforts to impose stronger controls over illegal land seizures and to standardize compensation. Redevelopment in traditional Uighur neighborhoods in cities throughout the XUAR, such as the Old City area in Kashgar, resulted in the destruction of historically or culturally important areas. Some residents voiced opposition to the lack of proper compensation provided by the government and coercive measures used to obtain their agreement to redevelopment. There were several reports of herders in Inner Mongolia complaining of confiscation of traditional pastoral lands for development.[17]

[17] US Department of State 2014, Country Reports on Human Rights Practices 2013 – China, 27 February, Section 1(f) < Accessed 7 March 2014 <CIS27374>

44.  A Radio Free Asia article dated 4 February 2015 refers to the hearing of a case brought against Fan Mugen, who was ‘accused of “intentional wounding” which led to the deaths of two members of a forced demolition gang’ who reportedly ‘arrived at his home in Jiangsu’s provincial capital Suzhou on Dec. 3, 2013 and beat up his wife when the couple resisted eviction’. His lawyer claimed that during the trial, police had detained Fan Mugen’s two sons and witnesses for the defence, and prevented a number of his supporters from attending court. Six members of the demolition team were also tried ‘for “picking quarrels and stirring up trouble” at a district court in Suzhou’ in February 2015 in connection with the alleged attack on Fan Mugen’s family. The case was ‘politically sensitive, as it comes amid simmering public anger over the use of violent forced evictions, often with no warning or due process, by local governments to reclaim land for lucrative redevelopment or speculation’. The article refers to many evictions resulting ‘in the beating, further harassment, and detention of anyone who resists or complains, while the government’s complaints system is overwhelmed by applications from evictees for redress, official figures show’.[18]

[18] ‘Chinese Police Detain Witnesses, Relatives in Trial of Suzhou Evictee’ 2015, Radio Free Asia, 4 February < <CXBD6A0DE1268>

45.  Amnesty International, reporting on the same incident, stated that:

Fan is accused of killing two members of demolition crew of at least a dozen men armed with steel bats who burst into his family home in December 2013. Fan repeatedly called the police for assistance, who eventually turned up but failed to stop the crew from attacking Fan and his family.

Fan says the demolition squad continued with their assault, his wife’s arm was broken and both he and his son suffered head injuries, as auxiliary police stood by. Finally, Fan claims he responded in self-defence, fatally stabbing two of the demolition crew with a knife in the process.

The incident took place in the context of a large development project, during which Fan and his family had refused to move and accept what they considered inadequate compensation.

…In 2012, Amnesty International published a report highlighting the rise in forced evictions across China, with deaths, beatings, harassment and imprisonment of residents who were forced from their homes across the country in both rural and urban areas. Local governments and property developers continue to hire thugs wielding steel rods and knives to rough up residents.[19] .

[19] Amnesty International 2015, China: Police crackdown against activists outside forced eviction trial, 4 February < <CXBD6A0DE2449>

46.  The Tribunal acknowledged the very significant differences in the way in which provincial and local governments in China implement national policy.  While there is clearly an intent to improve the rights of landholders and the way in which land claims are managed, the manner in which they have been dealt with can in some circumstances be considered to be harsh, aggressive and compromising.  However, the Tribunal as noted above has not accepted the claims of the applicant. Therefore, the manner in which land acquisition occurs in China is theoretical.

47.  While the Tribunal notes the applicant claimed that he intended to further petition the authorities, the Tribunal has not accepted that he has anything to petition the government about. Had the applicant genuinely intended to protest again, he could have done so by staying in China. In any event as the Tribunal has rejected that the applicant’s land was confiscated or that he suffered any harm as a result, it does not accept that he will protest about these events in the future. 

48.  On the basis of the available information and evidence and for the stated reasons, the Tribunal is not satisfied that the applicant faces a real chance that he will suffer serious harm in respect of any of claims or for any other reasons.  As a consequence, it follows that the Tribunal is not satisfied the applicant has a well-founded fear of persecution for a Convention reason in China now or in the reasonably foreseeable future.  Accordingly, the Tribunal is not satisfied that the applicant is a refugee under section 36(2)(a) of the Act.

CONCLUSION

49.  For the reasons given above, the Tribunal is 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).

50.  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).  As the Tribunal has rejected the entire basis of the applicant’s claims, it follows that it is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

DECISION

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

Linda Holub
Member