1500290 (Refugee)

[2016] AATA 3930

1500290 (Refugee) [2016] AATA 3930 (6 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1500290

COUNTRY OF REFERENCE:                  China

MEMBER:Linda Holub

DATE:6 June 2016

PLACE OF DECISION:  Sydney

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

Statement made on 06 June 2016 at 1:51pm

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 claims to be a citizen of China applied for the visa [in] April 2014 and the delegate refused to grant the visa [in] December 2014.  According to the Department’s records, the applicant arrived in Australia [in] January 2014.

3. The applicant appeared before the Tribunal on 9 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.

LEGAL FRAMEWORK

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.

Refugee criterion

1. 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).

2. 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.  In making its decision, the Tribunal had before it the Department’s file relating to the applicant’s protection visa application, the Tribunal’s file in relation to the review application and gave consideration to the delegate’s decision record.

a.He was born in Jiangsu Province, China [[date].  Following the completion of high school he became a [occupation] and worked in a [factory]. He and his wife used all their money and a loan of RMB 10,000 from a friend to re-build their house.

b.In [year] [Local official] of [Town 1] decided to sell the land to a developer - [Development Company].  The company was owned by [a relative of a senior official] (clarified at hearing to mean that it was owned by the [relative of a senior official of the county]).  Prior to that the [Local official] bought the land at a low price and sold it a higher price so he could make a profit.

c.In [year] after they received the notice of land expropriation and land demolition, the applicant went with some villagers to the offices of the [Development Company].  The compensation being offered was [amount] per square metre amounting to [amount] in total.  However, it had cost him more than [amount] to re-build the house.  As the amount offered would not enable him to buy the same size house, he refused to sign the contract.

d.He and other villagers went to see [local officials] but they were not interested in hearing the complaints; but rather colluded with the developer.  The developer asker the [Local official] to try to persuade the group to sign the contact.  They were told by an official if they did not agree to the offer, they would be opposed to the government and that their properties would be demolished.  The [Local official] came to the applicant’s workplace and told his employer that he was opposing the government and as a consequence he was fired.  He found a job in [a restaurant].

e.At about 10.00am on [date] September 2011, his father who was at home heard the sound of bulldozers working not far from their house.  When the applicant arrived home he and his wife confronted the demolition workers. They told the workers they have not received compensation and had no rights to demolish the house. The workers however said they were ordered to do so and continued to demolish the house. They became desperate and his wife threatened to drink pesticide poison if their workers did not stop the demolition so they then stopped.

f.About 20 minutes later three police arrived.  When he and his wife refused to leave, the police arrested his wife. He tried to prevent the police from hurting his wife so he fought back. Other villagers also protested against the police for beating them. Then he was arrested and charged with assaulting police.

g.He later discovered that his wife was dragged out of the house and it was subsequently demolished.  His wife became ill and was sent to hospital by friends.

h.While he was being held in the police station he was beaten heavily by police they poured cold water on him and left him wet overnight with a fever. The next day his father came to the police station and after paying the required RMB10,000 (which they borrowed) he was released.  He then had to rent a home for the family to live in.

i.In an attempt to obtain reasonable compensation he and another villager [Mr A], appealed to the county government but no one accepted their petition. He was threatened by police that if he appealed again they would detain and charge him with ‘unreasonable petition’ and ‘disturbing public order’.

j.He attempted to engage a lawyer to seek redress but no lawyer would accept the case.

k.He and the aforementioned villager did not give up but rather they appealed to the [City 1] government.  After lodging their letter they were asked to wait at home.  For two years he attempted to get reasonable compensation. In August 2013 the [Local official] asked one of the officials to call him and asked to see them. He attended with three other villagers. When they arrived they were abused by the [Local official] who said they had embarrassed the town by sending the letter to the county government. They were very angry and quarreled with the [Local official], after which the police were called and took them to the police station. At the police station they were told that if they gave up their petition that would be released otherwise they would be detained for six months. For the sake of their wives and children they signed the documents and gave up their petition. They were also asked by the police to report regularly to the police and were prohibited from leaving [Village 1].

l.As a result of the situation his wife suffered serious mental depression. He was scared of being arrested and told his wife to go abroad. He obtained a passport in 2010 and asked friends to help him apply for a visa.  He received a visa [in] January 2014 and left China [in] January 2014. Because he had not reported to the police regularly the police thought he had petitioned the city government his wife was therefore arrested. The police said they would release his wife after he reported to them. Later they discovered that he had went overseas and asked his family to pay a fine of [amount]. His family paid the fine his wife was released.

11.  The delegate’s Decision Record indicates that the applicant was interviewed by the Department [in] December 2014.  The delegate refused to grant a Protection visa to the applicant as the delegate “dismissed the credibility of the applicant’s claims in their entirety".[1]

[1] AAT file, folio 3.

12.  On 8 January 2015, the applicant then applied for a merits review of that decision by the Tribunal.  The Tribunal wrote to the applicant on 6 April 2016 advising that a hearing had been scheduled for 9 May 2016.  The applicant appeared before the Tribunal to 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 who did not attend the hearing.

FINDINGS AND REASONS

Nationality

13.  On the basis of the available information, the Tribunal finds that the applicant is a citizen of China.  There is nothing in the evidence before the Tribunal to suggest that the applicant has a right to reside in any country other than China.

14.  The Tribunal finds that the claims should be assessed against China for the purposes of the Convention in s.36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa).

Has the applicant suffered any of the claimed harm?

15.  At the commencement of the hearing, the applicant stated that he suffered insomnia and that his memory had become very poor.  He therefore asked if he could take out his copy of his Protection visa application.  The Tribunal clarified with the applicant that he meant that he was having trouble sleeping to which he responded yes.  The Tribunal then asked if that will impact on his ability to give evidence today.  He said “maybe a little bit, but I don’t think it’s significant”.  The hearing proceeded.  The applicant did not draw on his copy of the application when providing evidence.  The Tribunal was satisfied that the applicant did not have any difficulty understanding and answering questions.  Nothing in his behavior or mannerisms suggested the applicant’s claimed insomnia impacted on his competence to provide evidence.

16.  In relation to the preparation of his application, the applicant explained that he told his agent what had happened and his agent helped him with the application.  He said the agent read it back and he knew what he was signing.

17.  The Tribunal indicated it was concerned about the delay in the lodgment of his Protection visa application especially in view of the fact that events he refers to occurred in 2011, he arrived in Australia in early 2014 and further, before coming to Australia had traveled to [Country 1] in 2013.  He explained that he had a friend doing business who asked him to help him in [Country 1] for a few days.  In his written application the applicant wrote that he travelled to [Country 1] in December 2013 in order to seek protection[2]. At heating, the applicant stated that if he had sought protection in [Country 1] it could have compromised his friend’s business.  He claimed that because his friend sponsored him he had no trouble leaving and returning to China.

[2] DIBP file, folio 21.

18.  The applicant confirmed that since he graduated from high school he worked as a [Occupation].  He stated his wife worked in a factory, but no longer does so.  He sends her money to support the whole family because his parents had been farmers but no longer have their land so they have nothing to do.  He has contact with his wife about once a week using WeChat.  They discuss what happens in the family and what happens in Australia.

19.  When asked if he had any difficulty leaving China he said no because a friend was helped him to get the visa and he came when the Chinese authorities weren’t paying a lot of attention to him.

20.  The Tribunal asked the applicant to elaborate on his claims.  He said the land where they lived was demolished, but the compensation offered not as high as the cost of building the house.  When queried how land was demolished, he explained the land was to be acquired and the house demolished.  He had the rights to about [size] of farming land.  He said he had re-built the house in 1999 and then corrected himself and said it was in 2001.  It was a two story building with an attic.  He and his wife lived there together with other family members– [their child], wife, parents and grandmother.  The deed was in his father’s name.

21.  The applicant claimed he re-built his house in 2001.  The Tribunal pointed out that this was some five years after he had finished high school[3].  He stated that his earnings were very high and that he saved about RMB100,000 in 5 years.  The Tribunal asked the applicant what year he married. He was unable to remember and then said he would calculate it.  He then asked whether he should provide the date of when he obtained his marriage certificate or when he celebrated his wedding.  The Tribunal asked if there was a significant difference between the two.  After giving it some thought, he said he was unable to remember when he married.  He said he [child] was born [in] 1999.  The Tribunal drew his attention to the fact that in his application, it stated that his [child] was born in 2001.  When asked to clarify, the applicant referred to the use of the lunar calendar in China.  The Tribunal noted that between 1996 when he finished school (at the age of [age]) and 2001 it appeared the applicant had been extremely busy – he had married, re-built a house, had a baby and saved a lot of money.  He then said it was not a big saving as he depended on my parents.  He eventually said that he was married before November 1999.

[3] DIBP file, folio 19.

22.  The applicant said the [Local official] sold the land to the developer.  The Tribunal asked the applicant how the [Local official] could the sell the land to a developer given land was not owned by individuals and his family held the lease for the land.  He responded that in China it was common practice.  An under-the-table agreement was made with the developer to pay a commission to the [Local official].

23.  In June 2011, he received the notice of land acquisition notice. The Tribunal asked the applicant if he still had the notice.  He said he discarded it a long time as the house was demolished.  The Tribunal asked how much compensation was offered to him.  He stated that he cannot remember clearly, but thought it was around [amount] or [amount].  He said the amount was insufficient from his point of view because he built the house and therefore he knew the cost of the building.  The applicant went on to explain that he refused the offer although he did have discussions with the developer.  Because he refused the compensation they proceeded with the demolition.  He also talked to the [Local official] who said that he wasn’t considering the big picture and the overall development of the area.

24.  The [Local official] had a conversation with the applicant’s employer and he was subsequently dismissed.  He claimed that this happened to pressure him to sign not long after he received the demolition notice but was not sure when exactly.  The Tribunal put to the applicant that surely it was a significant event and he would know when this happened. He said then said it was July or August but there too many things happening at the time and he could not remember exactly.

25.  The Tribunal asked the applicant to describe the day the demolition workers came.  He said he was out looking for work that day so was not at home.  The workers drove a digger and truck to his place.  When asked what day it was he said roughly in September.  He thought about it but I could not remember the exact date.  Again the Tribunal put it to him that it would have been a big event so it would be expected he would remember the date or have some better idea.  He said there were too many issues for him to think about.  The workers demanded that his family exit the house.  His wife tried to stop them.  His father called him.  Because his family refused to leave the house the workers stopped their work and not long after the police came.  In his written application he stated that the workers stopped because his wife threatened to drink pesticide poison.

26.  About 20 minutes later three police officers arrived.  When he and his wife refused to leave, the police tried to arrest his wife. He attempted to protect his wife from being hurt by the police. Other villagers also protested against the police for beating them. Then he was arrested and charged with assaulting police.  The applicant was held in the police station for one day and one night during which time the police beat him, poured water on him and dried him with an electric fan.  His said his father tried to get someone to bail him out but they refused because they wanted payment.  The Tribunal asked him to explain as they sounded like bail.  He then said yes, their reason was that he attacked the police.  The Tribunal asked the applicant why his wife needed to be hospitalized.  He said she passed out but was not injured.

27.  The Tribunal asked the applicant about his petitioning of the government.  He said he went to the Complaint office in his county with two other villages named [Mr A] and [Mr B] but no one was prepared to see them.  They told them to go back home. He said he had a quarrel and they called the police and he claimed he was taken to the police station again and required to report regularly and they wanted to stop him making further appeals saying it impacted on the reputation of the town.  He explained that he was not held for long and nothing happened to him on this occasion but he was told not to petition anymore.  At hearing the applicant said that although he had appealed, it was nevertheless useless and although he attempted to engage a lawyer to seek redress no lawyer would accept the case because the officials are powerful and will pressure the lawyer.

28.  The Tribunal asked the applicant if there were other houses involved and whether their owners accepted the compensation.  He said most accepted because their houses were old, so for them the compensation was reasonable.  The Tribunal asked the applicant how much he had spent on re-building his house.  He said [amount].  When asked where he got the money from, he said he had saved about [amount] and his family help contribute to the costs and he borrowed the rest of it.  He said he borrowed a bit more than RMB100,000.  The Tribunal asked him to clarify this as his application stated that he had borrowed RMB10,000.  He said that was a mistake.  The Tribunal drew his attention to the fact that at the commencement of the hearing he said he knew what he was signing when he signed the application.

29.  The applicant stated that because he had not reported regularly to the police they thought he had petitioned the city government and his wife was therefore arrested. The police said they would release his wife after he reported to them.  Later they discovered that he had gone overseas and asked his family to pay a fine of [amount]. His family paid the fine his wife was released.

30.  The Tribunal noted that he went to [Country 1] prior to leaving for Australia and why if he was concerned for his safety he did not leave earlier.  He said it was because he still wanted to fight for the full amount of compensation.  The applicant asked a friend in Shanghai to help him apply for a visa, which he received [in] January 2014 and left China [in] January 2014. The Tribunal asked the applicant how much he paid for the visa and arrangements made for him.  He said it cost [amount]. The Tribunal questioned the logic of his claims - that he paid a third of the cost of re-building his house to arrange a visa.  He confirmed that this was the case and explained that firstly he can earn money in Australia (which the Tribunal heard earlier he was sending home) and also, he can try to see if his application for protection is successful.

31.  The Tribunal had fundamental concerns about the applicant’s credibility.  He did not provide any documentation to substantiate his claims. His application was very short on detail and at hearing the evidence he provided and the manner he do so, did not alleviate this deficiency.  Although the applicant claimed at the commencement of the hearing that he was suffering from insomnia and that he might need to utilise his copy of the application, he did not actually do so.  He remembered some details in his application but not others.  The Tribunal was satisfied that this was not a result of insomnia, but rather because his claims were fabricated.  The Tribunal put significant weight on the fact that the applicant could not provide any key dates or even approximate ones in relation to timeline associated with his claims.  He was unable to provide basic information about himself, like when he married.  The date provided in relation to his [child’s] date of birth varied between his written application and his oral evidence.  There were inconsistencies in his evidence, his claims lacked detail and some aspects were not plausible. The Tribunal put it to the application that it was strange that he remembered some things and not others.  He responded that it is not important to remember when are married and commented that he had not put it in his heart.  The Tribunal agreed that the fact he did not recall when he got married was not fatal.  However, it was part of a broader picture the applicant presented which overall did not give the Tribunal confidence that his evidence was reliable and that his claims were credible.  The manner in which the evidence was presented gave the impression that the applicant had rehearsed certain elements of his claims.  In short, the Tribunal had doubts that the applicant was a witness of truth.

32.  For these reasons, the Tribunal rejected the applicant’s claims that his land was compulsorily acquired, his house demolished, that he petitioned the government about this and was sacked as a result, arrested for assaulting police and beaten by them or that his wife was detained because he had not reported to the 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?

33.  At hearing, when asked what he fears, the applicant said that he fears the authorities may suspect that he said something adverse to them in Australia.  He also referred to the fact that his claimed petitioning compromised the reputation of the town and county governments.  The Tribunal considered these claims individually. In respect of the first point, the applicant did not highlight any actions in Australia that could have brought him to the attention of Chinese authorities.  In respect of the second point, as the Tribunal rejected the entirety of the applicant’s claims this point was moot.  Further, the Tribunal put weight on the fact that the applicant travelled to [Country 1] and returned to China without attracting the attention of the authorities.  In addition, the applicant talks to his wife weekly and there no was reference to any concerns that he is a person of interest.  Consequently, the Tribunal was not satisfied that the applicant has a real chance or faces a real risk of serious or significant harm if he returns to China in the foreseeable future.

34.  The Tribunal put significant weight on the applicant’s statements that he sent money overseas to his support his family and that it is advantageous for him to be in Australia rather than China because he could earn a higher level of income.

35.  On the basis of the available information and evidence and for the stated reasons, the Tribunal is not satisfied the applicant’s land was compulsorily acquired, his house demolished, that he petitioned the government about this and was sacked as a result, arrested for assaulting police and beaten by them or that his wife was detained because he had not reported to the police 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

36.  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).

37.  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).

38.  There is no suggestion that the applicant satisfied 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

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

Linda Holub
Member