1502607 (Refugee)

[2016] AATA 4239

1502607 (Refugee) [2016] AATA 4239 (22 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1502607

COUNTRY OF REFERENCE:                  China

MEMBER:Tigiilagi Eteuati

DATE:22 July 2016

PLACE OF DECISION:  Brisbane

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

Statement made on 22 July 2016 at 1:07pm

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 appeared before the Tribunal on 17 November 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and Mandarin and English languages.

   RELEVANT LAW

3. 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

4. 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).

5. 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.

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

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

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

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

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

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

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

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

    Complementary protection criterion

14. 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’).

15. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

16. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

17. 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.

    Member of the same family unit

18. Subsections 36(2)(b) and (c) 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) 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 spouses.

    CLAIMS AND EVIDENCE

19. In her application for a protection visa the primary applicant made the following claims. In answer to the question as to why she left China the primary applicant stated:

    “CHINESE government wanted to take away my house and land I cannot have my compensation. I have my property right but the government still ignore. Unfortunately, they have the power to control the property system and I will be jailed and possibly tortured when I went back to China.”

20. The primary applicant indicated that she had not experienced harm in China. In answer to the question as to what she fears may happen if she were to return to China the primary applicant stated:

    “I afraid that we will be jailed after we returned. Chinese government always want us to sign unfair contract to sell our property to their own developer.”

21. In answer to the question as to who the primary applicant thought may harm her if she returned to China the primary applicant stated:

    “We will be put in jailed without any legal procedure as the Chinese government controlled the law system. Chinese government will harm and persecute us. We don’t want to give up our property.”

22. The primary applicant indicated that the Chinese authorities could and would protect her if she was to return to China.

23. At the hearing before the Tribunal, the primary applicant claimed that she was born in [Town 1] in Jilin province in China. She claimed to have moved to Shenyang city in 2003 to attend University. She claimed to have graduated from University in 2007 and began working for a [company] in [a certain] area. The primary applicant also claimed that she married the secondary applicant in 2007. She claimed that the secondary applicant had worked as [occupation] in Shenyang. The primary applicant claimed that she had lived in Shenyang with secondary applicant up until they came to Australia in November 2013.

24. The primary applicant claimed that her parents resided in [Village 1] in the [township] of [Town 1]. She claimed that there were approximately [number] residents in [Village 1]. The applicant claimed that she spoke with her mother on the telephone once or twice a week. The applicant was asked about the specific address of the property her parents owned and she repeated that it was [Village 1] in the [township] of [Town 1]. She said that in small villages like hers there are no street names or numbers. When asked how her parents would receive mail, she said that the people who worked where the mail was sent knew everyone by name and would deliver the mail on that basis.

25. When asked about her claims, the primary applicant stated that she would be harmed if she returned to China. The applicant claimed that in July or August 2013 her parents agreed to sell their property to a developer and had therefore moved out of their house into rented accommodation. She said that the developer did not pay her parents for their house and so her parents decided to complain to the local government bureau. She claimed that her parents had been beaten when they went to complain. The primary applicant claimed that her mother did not tell her that she had been beaten because she did not want the applicant to worry about them. When asked how she knew they had been beaten the applicant claimed that about two months prior to the hearing, in September 2015, her mother told her that her father could not get up to go to work and she knew from this that her parents had been beaten.

26. The Tribunal indicated that from the primary applicant’s evidence the first she would have suspected that her parents had been beaten was two months prior to the hearing, in September 2015. The primary applicant then claimed that her parents were first beaten in September 2013. When she was asked how she knew this if her parents did not tell her they had been beaten, the primary applicant claimed that her mother had told her that they had been beaten. When asked why she had originally said that her parents did not tell her that they had been beaten, the applicant claimed that her mother told her only some things but downplayed the seriousness of the events and did not provide any details of the beatings.

27. The primary applicant then went on to give details of the first time she claimed her parents were beaten. She said that in September 2013 her parents were on their way to complain at the government bureau about non-payment of the sale price of their property when they were stopped by 7 or 8 Gangsters who warned them not to complain about having not been paid for their land. The primary applicant said that the gangsters said that if her parents complained they would harm the primary applicant if she returned from Australia. The primary applicant was asked whether her parents knew the gangsters and she said they did not. When asked how the gangsters knew about her the primary applicant claimed that she was included on her parent’s household registration which the developers would have had to determine how much money to pay in compensation for the family’s house. When asked how the gangsters would have known that she was in Australia, the primary applicant indicated that it was a small village and everyone knew that she was in Australia.

28. The Tribunal asked whether the primary applicant’s parents had told her anything else about the interaction between her parents and the gangsters and she said they had not told her anything else. When the Tribunal asked why she thought her parents were attacked if she had not been told that they were attacked, the primary applicant then claimed that her parents were also attacked on the way to the Bureau by the gangsters but that her parents had not told her this. When asked how she knew this she said that her mother told her. It was pointed out that her evidence about this event was contradictory and the Tribunal asked the primary applicant to recount the events again. This time the applicant claimed that developers had refused to pay her parents for their house so they were on the way to protest at the government bureau. The primary applicant said that her parents were stopped by the gangsters and were beaten before they could reach the Bureau. The primary applicant said that they used the primary applicant to threaten her parents saying that they would harm her if she returned from Australia. The primary applicant said that her mother told her not to return to China.

29. The primary applicant indicated that the gangsters continue go to her parent’s home every few days to check on them and they continue threaten them and beat them. The Tribunal asked the primary applicant when her parents were last beaten the applicant said they were beaten a month before the hearing.

30. The primary applicant said that the second time that her mother told her that they had been beaten was in October 2013. The primary applicant claimed that her parents went to the government bureau to report the developers. She said that the gangsters who had beaten them previously were at the government bureau. She said that the gangsters took her parents back to their house and beat them. The Tribunal asked the primary applicant whether her mother had given her details of the beatings in September and October and she said words to the effect “they had wooden sticks but no knives”. When asked again whether her mother had told her details of the beatings the primary applicant said her mother did not tell her any details of the beatings. When asked why she had mentioned wooden sticks the primary applicant said that her mother had told her that the gangsters had beaten them with wooden sticks and knives. It was pointed out that this was inconsistent both with her claim that her mother had given no details of the beating and with her statement that the attackers had not had knives. The primary applicant said that her mother had told her that they were beaten with sticks and knives but that the knives had not left any scars. When asked how she knew this she said that her mother had not mentioned scars. The Tribunal asked whether her parents had sought medical attention after being beaten with sticks and knives. The primary applicant said that they had not because they had their own medicine. The Tribunal indicated that it sounded implausible that her parents would not have sought medical attention after such a serious attack. The primary applicant maintained that they had not.

31. Regarding the second occasion on which the primary applicant’s parents were claimed to have been beaten, the primary applicant claimed that they were taken back to their rented house where they were held on the ground and beaten with sticks. The primary applicant also claimed that the house was trashed. The primary applicant claimed that the gangsters threatened to harm the applicant if she were to return from overseas.

32. The primary applicant indicated that after her parents moved out of their house in July 2013, they moved into a large rental property. However, she said they had to move again in September 2013 as the landlord was upset that the house was trashed by the gangsters. When it put to the primary applicant that she had previously claimed that the beating in September had occurred while her parents were on their way to the Bureau and that she had previously indicated that it was in October that their house had been trashed, the primary applicant claimed that on the first occasion her parents were stopped in the street and then taken to their home before they were beaten. When it was put to the primary applicant that this was contradictory to her previous evidence she said that she had been consistent. The primary applicant claimed that her parents had to move houses frequently due to houses being trashed by the gangsters. She said that landlords were also threatened by the gangsters.

33. The primary applicant claimed that every month her parents would be either threatened or beaten by the gangsters. She said that they had made complaints to the police but on each occasion the police told them they would look into the matter and sent the primary applicant’s parent’s home.

34. The primary applicant claimed that her parents were receiving RMB [amount] a month from renting the downstairs level of their property. When it was put to the primary applicant that RMB[amount] appeared to be a high figure for renting the downstairs level of a property in a rural village with no street names, she claimed that the downstairs level was divided into [rental] shops.

35. She said that the property developers had agreed to pay her parents RMB [amount] to purchase the property.

36. When asked where she intended to live if she were to return to China, the primary applicant said that she would live close to her parents in their village. When the Tribunal said it seemed strange that the primary applicant would return to the very place where the gangsters she claimed to fear lived, the primary applicant said she thought the Tribunal was asking where she would live if it were safe to return to China. 

1. The primary applicant then claimed that if she had to return to China she would move far away from her village, most likely to the south of China, in order to avoid the developers. The applicant claimed that she would send for her parents once she was established. When asked whether she considered that she would avoid harm from the developers if she moved to the south of China, the primary applicant stated that she would continue to petition and to sue the developers. She said that the developers would find her if she returned but they were less likely to find her in the south of China. Later the primary applicant claimed that if she returned she would return to her parent’s village because she was used to the weather there.

2. Contrary to her claims in her protection visa application form where she claimed to have left China due to fearing Chinese authorities, the primary applicant claimed that she came to Australia to study in November 2012. The primary applicant said she became pregnant in [2013]. She said that she decided not to continue with her study after she had a [miscarriage].

3. The applicant gave contradictory answers to questions as to whether she thought that the authorities in China would protect her if she returned to China. The Tribunal pointed out that in her protection visa application she had indicated that the Chinese government would protect her from harm if she returned to China and she agreed. The Tribunal asked why she feared returning to China if the government would protect her. She then indicated that she feared the developers and said that she did not think the Chinese government could protect her. Later, she said she did not know whether the Chinese government could protect her.

4. When asked whether there was any reason she couldn’t relocate to avoid harm. She said that her parents lived in their village and she liked the climate there. Asked whether there was any other reason why she could not relocate, the applicant claimed that if she continued to petition the developers would find her. The Tribunal asked why she would start petitioning if she had done nothing so far. The applicant claimed that she had written to authorities in China herself. When the Tribunal asked to see a copy of the letter the applicant said that she had encouraged her parents to petition the government and sue the developers.

5. The applicant reiterated that the reason she feared harm in China was because the developers/thugs would harm her to prevent her parents from trying to gain payment for their property. The primary applicant emphasised that the developers were the gangsters and that she had been using the terms interchangeably.

6. The secondary applicant stated that he feared returning to China because his house had been demolished. When asked why he was referring to it as his house, he claimed that the property in question was given to him and the primary applicant by her parents. When asked when this occurred he said that he could not remember but it was before the couple came to Australia in 2012. The Tribunal indicated that it was difficult to believe that he did not know the year in which he received a house from his wife’s parents. The secondary applicant again said it was before they came to Australia but he did not know when.

7. The secondary applicant said that the house was forcibly occupied by developers and was then demolished. The secondary applicant was asked whether the house was forcibly occupied or whether it was handed over voluntarily on the promise of payment for the property and he confirmed that the house was forcibly occupied. The Tribunal indicated to the secondary applicant that the primary applicant had given evidence that the property was voluntarily handed over on the promise that payment would be made for the property. The secondary applicant said that since the money was never paid, the house was forcibly occupied.

8. The secondary applicant described the house as being a two story house with three bedrooms on the upper floor and that the lower floor was divided into [rental] shops.

9. The secondary applicant said that he did not know how much the parties had agreed upon for the sale of the house. He said the price was agreed between the developers and the applicant’s parents. The secondary applicant then appeared to change his evidence to say that they were not arranging to sell the house that it was just taken. He then said that the parties did not agree on an amount and then the developers demolished the house.

10. The secondary applicant was asked whether he and the applicant made any money from the property before it was sold and he said that they did not. The Tribunal indicated that the he had said there were three rental properties. The applicant said that rent was paid to his father in law. Asked whether he got any money he then said that the applicant’s father would send the money to him. The Tribunal indicated that this appeared to be inconsistent with his previous claim that he never made any money from the property. He then said that he thought the Tribunal was asking about money from the developers. When asked how much he was receiving in rent from the property, the secondary applicant said that he made about RMB[amount] per month but couldn’t remember the exact amount. He said that he made this amount every month since the property was transferred to him. Asked again when he received the property he said it was before he came to Australia in 2012 but he could not remember when. The Tribunal indicated that it was difficult to believe that the he couldn’t remember when he received a property which was earning him RMB [amount] a month when he only made RMB[amount] annually at his work. The secondary applicant indicated that he met the applicant in 2006, that they were married in 2007 and after the marriage the applicant’s parents signed over ownership of the property to them in 2007. Asked how the applicant parents survived he said that he would get the full rent and then give them a small amount to live on.

11. The secondary applicant said that in China once children get married they give their children their property. When asked whether his parents had given him their property he said they did not and then said only the parents of women do so.

12. The secondary applicant said that the primary applicant’s parents were first attacked in August or September 2013. Asked for details of the attack the secondary applicant said that men came to the house and attacked them with sticks. He said that he understood that they were attacked as a threat to let them know that they no longer owned the property that had been taken. The secondary applicant did not mention anything about the applicant’s parents being stopped on the way to report the developers to the bureau.

13. The secondary applicant said he did not know when the applicant’s parents were attacked the second time. He said that they were most recently attacked on the Friday before the hearing [in] November 2015. When the Tribunal told the applicant that the primary applicant had just given evidence that her parents were last attacked a month ago the secondary applicant said that his wife told him that they were attacked [in] November and he remembered it clearly.

14. The Tribunal asked why the primary applicant’s parents continued to be beaten if it was not their property. The secondary applicant said that the primary applicant’s parents were suing the developers on his behalf. The Tribunal indicated that it was surprising that the applicants continued to make the primary applicant’s parents take action against the developers in circumstances where this had caused them to be repeatedly beaten. The secondary applicant said that this occurred in the past but that protests and the beatings had ceased  because it was useless to sue the developers as the government would not assist them. When the Tribunal asked the applicant to confirm that no action would be taken to regain the property the secondary applicant indicated that he still wanted to sue the developers.

15. When the secondary applicant was asked where he would live if he returned to China he said he would return to [Town 1]. The Tribunal put to the secondary applicant that it appeared strange that the he was claiming that he needed to remain in Australia to avoid harm at the hands of the developers but that if he had to return to China he would return to the very place where the developers were located. The secondary applicant said that [Town 1] was his home area where he grew up and that the developers would find him no matter where he lived in China.

16. The secondary applicant said that the couple did not have any children.

17. The primary applicant, who had remained in the room while her husband gave evidence, said that she wanted to say something about the property. She said that her parents had saved for a long time to buy the property and that she was the only child so the property would be hers. She said that she thought that she would inherit the property once her parents died but her parents gave it to her while they were alive. She said that the property produced the sole income for her and her family. When she was reminded that she said that she had had a job she agree and said that the property provided her parent’s sole income.

18. The Tribunal asked the primary applicant why she had said that the property was her parent’s previously. The primary applicant said that she said that her parents had a property. The Tribunal agreed and said that she had previously said that her parents had a property not that the property was hers. The applicant said that she had previously said that she would eventually inherit the property. The Tribunal then reminded her that her husband had said that the property was owned by the applicants before they came to Australia. She then said that she did own the property but it produced the sole income for her parents. The Tribunal indicated that her husband had just given evidence that he had received all of the money rent from the property and that he would then give her parents a small amount to live on. The primary applicant said that the profits were not divided between the two couples in any particular way but that rather, her parents spent less money than she and her husband.

19. The primary applicant was asked whether she had a child. She said that she did then she said that she did not. Asked for clarification, the applicant said that she did not have a child. The Tribunal asked the applicant where her child was and she said that her child was in China with her mother.

20. The Tribunal described to the primary applicant a letter that the primary applicant had sent to the Department requesting permission to work. The information in the letter referring to her child was put to her in accordance with section 424AA. The primary applicant was told that the letter indicated that she had a child whereas at the hearing she and her husband had insisted that they had no children. The Tribunal indicated that this information may be relevant to her credibility and it may be relevant to whether she had been telling the truth during the hearing. The primary applicant was asked whether she wished to comment or respond and was advised that she could seek additional time to comment on or respond to the information.

21. The primary applicant said that she had not mentioned the child because she did not want to adversely affect the child although she did not explain how the child would be adversely affected. She said that a lawyer had told her to tell the authorities that she and no children.

22. The Tribunal put to the primary applicant that much of the evidence that she gave was different from that of her husband. The applicant said that she and her husband owned the property but that her parents had had the right to use the property.

23. The Tribunal put to the applicant that much of her own evidence frequently changed and was contradictory. The Tribunal gave the applicant the example of how she had given contradictory evidence about whether she had a child. She said that she gave contradictory answers about this as she did not know which answer would be best for the child. The Tribunal indicated that her willingness to provide false evidence in relation to her child could cause the Tribunal to conclude that she had not been truthful with other evidence she had given. The primary applicant said that she just wanted to say whatever was of most benefit to her child and she did not think her child was relevant to her application .The Tribunal asked the primary applicant why she thought her child would be adversely affected if she told the Tribunal about the child and she said that she did not know.

24. The Tribunal gave the primary applicant a further example of her contradictory evidence in that she initially said that her mother never gave her details of the attack in September 2013 and then went on to describe the attack in detail. The applicant said that maybe she was nervous or maybe she hadn’t heard properly.

25. The Tribunal indicated that it was difficult to accept that if the primary applicant were to return to China the primary applicant, who was currently in Australia and was taking no action against the developers, would return to the very place where the developers were located and sue them. The primary applicant claimed that she wanted to fight for her rights.

26. The Tribunal asked the primary applicant why she would be harmed given that her parents were the ones who had been living in the property while she had been living in a different province before moving to Australia and her parents had been the ones to seek to sue and report the developers. The primary applicant said that the developers wanted to use her as leverage. The Tribunal asked why the developers would do that when they could simply harm her parents or her child. The primary applicant said it was because she was the owner of the property. Asked again why she had not told the Tribunal this before her husband had given his evidence, the primary applicant said that even though it was her property she always thought of it is her parent’s property.

27. The Tribunal asked how her parents could have sold the house to the developers if it was not their house and she said that she had authorised her parents to sell the house. Asked again why she had not told the Tribunal this in the beginning and the applicant said she had not thought of it.

28. The Tribunal indicated that because of the contradictory and changing nature of her evidence it was difficult to know what to believe. The primary applicant claimed that perhaps it was a cultural misunderstanding and that in China everything that parents own is also owned by their children. Asked again who actually owned the property, the applicant said that she and her husband owned the property. Asked why she had not simply told the Tribunal this in the beginning of the hearing. The primary applicant claimed that she did not think of it.  

29. The Tribunal indicated that it was very hard to believe that the primary applicant did not think to tell the Tribunal that the property that was at the centre of all her troubles was hers rather than the parents.

30. The Tribunal indicated that it was difficult to believe that the primary applicant had continued to make her parents report and sue the developers when she knew they were being beaten for doing so. The primary applicant said that she thought that eventually she may get some money if her parents continued to agitate the matter. She said that she was frustrated because the developers took her property.

    COUNTRY INFORMATION

31. The US Department of State’s report on human rights practices in China in 2013 states that:

    “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.[1]

    [1] US Department of State 2014, 2013 Country Reports on Human Rights Practices – China, 27 February, Executive Summary and Sections 1c, 1d and 2b < Accessed 7 March 2014 <CIS27374>;

32. The mistreatment of petitioners by the Chinese government is well-documented and commonplace, including reports of local and central government authorities monitoring, intercepting, arresting, beating and harassing petitioners who seek to protest against land repossession.[2] According to the USCECC Annual Report 2012, ‘China’s Constitution and the 2005 People’s Republic of China National Regulations on Letters and Visits provide that Chinese citizens have the right to petition without retribution’.[3] However, the US Department of State 2013 Country Reports on Human Rights Practices – China states that ‘Although banned by regulations, retaliation against petitioners [by government officials] reportedly continued’ in 2013.[4] A key problem with the xinfang system is that the central government partially assesses local government performance on the number of petitions that are resolved at the local level.[5] Freedom House reports that since local officials receive career and salary sanctions when petitioners leave their jurisdictions and complain to higher authorities, ‘they have significant incentives to suppress citizen petitioning’ at higher levels.[6]

    [2] Human Rights Watch 2005, ‘We Could Disappear At Any Time’: Retaliation and Abuses Against Chinese Petitioners, vol.17, no.11(C), December, p.43 < Accessed 16 December 2005 <CIS14691>

    [3] US Congressional-Executive Commission on China 2012, Annual Report 2012, 10 October, p.143 < Accessed 24 October 2012 <CIS24282>

    [4] US Department of State 2014, 2013 Country Reports on Human Rights Practices – China, 27 February, Section 2b < Accessed 7 March 2014 <CIS27374>

    [5] US Department of State 2012, 2011 Country Reports on Human Rights Practices – China, 24 May, Section 2b < Accessed 16 September 2014 <CIS30044>; Jia, C 2011, ‘Power of petition sows seeds of hope’, China Daily, 7 April < Accessed 7 October 2014 <CXCB3E63420407>

    [6] Minzner, C 2011, Countries at the Crossroads 2011 – China, 10 November, Freedom House < Accessed 28 November 2011 <CX277317>

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

1. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

2. The Tribunal finds the applicants are nationals of China. They provided copies of the identity information pages of their Chinese passports to the Department. The applicants made no claim to be nationals of any other country. The Tribunal accepts the applicants’ 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).

3. The Tribunal accepts the country information cited above. The Tribunal accepts that there are widespread problems in China with relocation and displacement of people and that this can involve local officials colluding with property developers to pay little or no compensation to displaced residents. A central question in this case is whether the applicants’ family were displaced from their property as claimed and whether there is a real chance of the applicants suffering serious harm, or a real risk of them suffering significant harm, if they return to China.

4. The Tribunal does not accept that the applicant’s will be harmed if they return to China. The Tribunal does not accept that their property, or the property of the primary applicant’s family was ever taken from them by developers as claimed. The evidence of both of the applicants was very difficult to believe. It was inconsistent both internally and between witnesses. When inconsistencies or implausible claims were put to the applicants their answers were unconvincing and often lead to further inconsistencies and implausible claims. The applicants often gave very vague answers and often had to be prompted a number of times before they settled on answers. Much of the time it appeared that the applicants were fabricating evidence as they were answering questions.

5. The claims made by the applicant in her protection visa application were inconsistent with the claims made at the hearing. In her application, the applicant indicated that she left China because the Chinese government wanted to take away her property without compensation and would jail and torture her if she returned. First, this is inconsistent with her claim at the hearing that she left China to study in Australia. Further, on the evidence she gave at the hearing, no problem arouse until September 2013 when her parents were not paid for the property and went to complain at the government bureau. The applicant has been in Australia since November 2012, well before any trouble arose for her family in China. In addition, the applicant’s claims at the hearing were solely based on her fear of the developers/thugs. She did not mention fearing the Chinese authorities or being jailed or tortured by them. In fact, at one point she said that she thought the Chinese authorities would protect her if she returned to China. It was only after she was asked why she feared returning if the Chinese authorities could protect her that she said she did not think that the authorities could protect her.

6. That the primary applicant frequently changed her evidence and provided inconsistent evidence suggests to the Tribunal that her claim that the family property was taken and that her parents were harmed is not true. Some more obvious examples of her contradictory claims were:

   ·    she initially said that the relevant property belonged to her parents but after her husband gave contradictory evidence she changed her evidence and claimed that the property belonged to the applicants;

   ·    she indicated that she did not have a child only to admit that she did once evidence which contradicted the claim was put to her;

   ·    she initially claimed that the first time her parents were beaten they were travelling to complain to the Bureau about the developers only to later claim that they were first beaten in their house;

   ·    she initially claimed that her parents never told her that either parent was beaten only to later say that her parents told her they were beaten;

   ·    she initially said that she only found out that her parents had been beaten in around September 2015 then said that she had been told by her mother in September 2013 that her parents had been attacked;

   ·    she then claimed that her parents did not give her any details of the beatings only to later describe details of the beatings; and

   ·    she claimed that her parents were attacked with sticks but not knives and then said that they were in fact attacked with knives.

7. The finding that the applicants have made false claims is also supported by the inconsistencies between the evidence presented by the two applicants. Some more obvious examples were that:

   ·    the primary applicant said that there were [number] rental shops in the property whereas the secondary applicant said there were [number];

   ·    the primary applicant had initially said that the property belonged to her parents whereas the secondary applicant said that the applicants owned the property;

   ·    the primary applicant said that the property made RMB [amount] a month in rent whereas the secondary applicant said that it made RMB [amount] an month;

   ·     the primary applicant said that her parents were last beaten a month before the hearing whereas the secondary applicant said that the primary applicant’s parents were beaten only a few days prior to the hearing;

   ·    the primary applicant initially said that her parents were first beaten on the way to report the developers to the authorities whereas the secondary applicant claimed that the developers went to their home to beat them; and

   ·    the primary applicant said that her parents voluntarily vacated the relevant property after a sale agreement was made with the developers whereas the secondary applicant initially claimed that the property had been forcibly occupied.

8. In addition, much of the evidence that was given by both applicants was implausible and incredible and this also supports the finding that the applicants' claims are untrue. Some examples include:

   ·    that the secondary applicant would not know when he was given the property by the primary applicant’s parents;

   ·    that the primary applicant’s parents would continue to seek to petition the authorities or sue the developers despite regular beatings at the hands of the developers;

   ·    that the applicant’s parents would remain in their village despite repeated severe beatings;

   ·    that the applicant’s parents were not hospitalised after being attacked by 7-8 men with sticks and knives;

   ·    That the applicants continued to make the parents petition and sue despite knowing that the parents were being severely beaten for doing so; and

   ·    That the applicants would both move back to the parents village where the developers are located and file petitions and suits despite doing nothing themselves to advance any complaints while they have been in Australia.

9. Given the inconsistencies in the evidence given by the applicants, the implausibility of much of the evidence and the demonstrated untruthfulness of the primary applicant, the Tribunal finds that the applicants’ claims have been fabricated to bolster their chances of being granted protection visas. The Tribunal does not accept that the applicant’s will be harmed if they return to China. The Tribunal does not accept that their property, or the property of the primary applicant’s family was ever taken from them by developers as claimed. The applicants could not even consistently describe the property or the circumstances under which it changed hands. The Tribunal does not accept that developers, thugs, authorities in China or anyone else will harm the applicants upon their return to China.

10. After assessing all the evidence and being mindful of the applicant’s personal circumstances, the Tribunal has considered the claims of the primary applicant individually and cumulatively. For the reasons mentioned above, the Tribunal finds that there is no real chance that the primary applicant would suffer serious harm if she returned to China. The Tribunal is not satisfied the primary applicant has a well-founded fear of persecution for any Convention reason now, or in the reasonably foreseeable future ifs he returns to China. Therefore, the primary applicant does not satisfy the requirements of s.36(2)(a).

11. The Tribunal has also considered the application of s.36(2)(aa) to the primary applicant’s circumstances. In making its findings, the Tribunal has considered the Complementary Protection Guidelines as required by Ministerial Direction No.56, made under s.499 of the Act.  

12. For the reasons set out above, the Tribunal is not satisfied, on the evidence before it, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the primary applicant being removed from Australia to China there is a real risk the primary applicant will suffer significant harm, in the form of: arbitrary deprivation of life; the death penalty being carried out; torture; cruel or inhuman treatment or punishment, or degrading treatment or punishment. Therefore the applicant does not meet the requirements of s.36(2)(aa).

13. There is no suggestion that the primary applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

14. As the primary applicant does not meet the criteria for a protection visa set out in s.36(2)(a) or (aa), it follows that secondary applicant is unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted protection visas.

    DECISION

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

    Tigiilagi Eteuati

    Member