1502705 (Refugee)

[2016] AATA 3865

1502705 (Refugee) [2016] AATA 3865 (16 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1502705

COUNTRY OF REFERENCE:                  China

MEMBER:Bruce MacCarthy

DATE:16 May 2016

PLACE OF DECISION:  Sydney

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

Statement made on 16 May 2016 at 8:06am

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] May 2014 and the delegate refused to grant the visa [in] February 2015.

3. The applicant appeared before the Tribunal on 12 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

4. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Refugee criterion

5. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

6. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention.  Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; …

7. 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.

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

9. 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.

10. 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 he has 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 probability of the persecution occurring is well below 50 per cent.

11. In addition, an applicant must be unable, or unwilling because of his fear, to avail himself of the protection of his or her country or countries of nationality.  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.

12. 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

13. If a person is found not to meet the refugee criterion in s.36(2)(a), he may nevertheless meet the criteria for the grant of a protection visa if he 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 will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

14. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1).  A person will suffer significant harm if he will be arbitrarily deprived of his 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.

15. 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

16. 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.

    Credibility

17. When determining whether a particular applicant is entitled to protection in Australia, the Tribunal must first make findings of fact on the claims he has made.  This may involve an assessment of the credibility of the applicant.  When assessing credibility, the Tribunal should recognise the difficulties often faced by asylum seekers in providing supporting evidence and should give the benefit of the doubt to an applicant who is generally credible but unable to substantiate all of his claims.  However, it is not required to accept uncritically each and every assertion made by an applicant.  Further, the Tribunal need not have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.  Nor is it obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality.  See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

18. If the Tribunal were to make an adverse finding in relation to a material claim made by an applicant but were to find itself unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true. (See MIMA v Rajalingam (1999) 93 FCR 220).

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. In connection with the application, the applicant has submitted photocopies of some pages of his Chinese passport.  Given this evidence, and evidence in the Department’s records, the Tribunal finds that the applicant is a citizen of the PRC.  Accordingly, the Tribunal will assess his claims as against that country.  There is no evidence to suggest that the applicant has any right to reside in any country other than the PRC.

20. When the applicant applied to the Tribunal, he submitted a copy of the delegate’s decision record without comment.  The Tribunal has had regard to information contained in that document.

21. The issue in this case is whether the applicant is at risk of harm in China because he complained to officials about the level of compensation offered to him in connection with the forcible expropriation of his land. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    The applicant’s migration history

22. In his application for the visa, the applicant said that, before his current passport was issued [in] 2012, he held a previous passport.  In answer to question 35 in application form 866B [which asked for details of all countries in which he had formally resided, travelled to or transited through before he came to Australia], he made no mention of any travel outside China prior to his departure from that country in April 2014.

23. However, according to the decision under review [a copy of which he provided to the Tribunal without comment], he told the delegate that he had travelled to [Country 1] and [Country 2] as a tourist for one week in November 2011, using his previous passport.  At the hearing, he confirmed that the delegate’s decision record that he had provided to the Tribunal had accurately set out the evidence that was before the Department at the time the decision was made.  He later told the Tribunal that he had travelled to [Country 1] as a tourist but said he did so about 10 years ago, that is to say around 2006.  When the Tribunal pointed out that he had given it a copy of the delegate’s decision in which it was recorded that he told the delegate he travelled in November 2011, he said he did not believe he had told the delegate that. 

24. The Tribunal asked why, if he had travelled to [Country 1] as a tourist before he came to Australia, he had not disclosed that fact in his application form.  He said he thought it didn’t matter whether he disclosed that information or not.  While the issue of whether or not he travelled to [Country 1] in the past is not a critical factor in the Tribunal’s assessment of his claims about events in China in 2013 as outlined below, and while the exact time of any such travel is also not a critical factor in that assessment, the fact that the applicant failed to give a truthful answer about his past travel and later gave inconsistent evidence about that travel undermines the applicant’s overall credibility.

25. The delegate’s decision states that the applicant applied for a [temporary] visa in Beijing [in] April 2014, and that visa was granted the following day.  He left China [later in] April 2014 and arrived in Australia on [the following day]. 

    The applicant’s written claims

26. The applicant set out his claims for protection in response to questions 36 to 42 inclusive of his application form 866B.  In brief, the applicant claims that, in August 2013, the [City 1] government in Hebei Province “forcibly expropriated” land owned by his family in order to build a highway. 

27. He said that the land in question had an area of “[number] acres” [which is approximately [number] ha].  He said that the government only offered his family compensation at the rate of [amount] RMB per acre of land [which would be, in total, [amount] RMB, equivalent to approximately $[amount]. 

28. He said he did not know what the correct rate of compensation should have been but he had heard that the “village brigade” had embezzled 20% of the total amount of compensation payable.  He said that, in September 2013, he and another man [YL] and other unnamed people went to the [City 1] Complaints Bureau to lodge a petition seeking to find out the correct rate of compensation, whether they would get any other land, and what could be done about food and clothing.  They were told that the figure of [amount] RMB per acre was correct, that they would get no other land and no other compensation.

29. The applicant said that, because he believed the officials were shielding each other, he prepared a letter of petition and, with other friends, hired a car with the intention of travelling to Shijiazhuang [the provincial capital] to lodge a petition with the Complaints Bureau there.  He said that they were intercepted by the “interceptor” on the way, though he did not know how anyone was aware of his intention, speculating that it may have been because officials had been watching him ever since he had gone to the complaints bureau in [City 1].

30. He said that, when the “interceptor” from the [City 1] Complaints Bureau found at the latest petition, he and the others were put in a place called the “Petitioners Admonition Centre of [City 1]” which he said was a place like a detention centre though not managed by police.  He said it was a place where the government would control petitioners.  After they were detained for 7 days, the applicant and the others were forced to agree that they would not continue to petition.  They were then released but, after he returned home, he remained under surveillance.  This was what prompted him to look for an agency who could arrange a visa to allow him to flee abroad.  He said that, he feared that similar things would happen to him if he returned to China because, he would continue to look for ways to continue petitioning.  He said that, lacking a higher education  he could not find a job if he did not have arable land.

31. In response to question 43 in application form 866B, which asked if he had any documentary evidence to support his claim and, if so, to give details of those documents, the applicant said he had such documentary evidence which he would provide later, but he gave no details of any such documents, and he did not submit any further documents to the Department in the period of more than 8 months which elapsed between the submission of his application and the date of the delegate’s decision.  Similarly, he has not submitted any further supporting documents to the Tribunal in the period of more than 14 months since making his application for review. 

32. Against this background, the Tribunal has considered the applicant’s response to Question 43 in application form 866B in the light of his responses to other questions, namely Questions 15 and 16 in application form 866A.  Question 15 in that form invited the applicant to “list all the documents you need to provide with this application.  If you cannot provide certain documents, indicate this in the table and provide details at Question 16 ”  In response to Question 15 question, the applicant wrote “Copy of passport” and indicated that he was providing that document with the application.  He did not mention any other documents.  Question 16 said “if you cannot provide a document, please indicate which document and explain why”.  He left blank the space provided for a response to this question. 

33. In all the circumstances, Tribunal interprets these responses as indicating that the applicant was not aware of any documentary evidence which might support his claims, other than his passport.

    Interview

34. The applicant was interviewed by the delegate [in] January 2015.  The interview was conducted with the assistance of a Mandarin interpreter.  The delegate’s summary of the applicant’s written and oral evidence is at pages 4-7 of the decision record.  A CD recording of the interview is also included in the Department’s file.  The Tribunal has listened to the recording of the interview, and is satisfied that the delegate’s summary presents a fair précis of the applicant’s claims as put to the Department, with a few relevant exceptions, as follows:

    ·Initially, he said that the area of his farming land which was expropriated was “[amount] mu” whereas the decision refers to “[a much larger amount] mu.”  He later said the area in question was “[amount] mu.”  He said that the total area of land expropriated from people in the village was [the much larger amount] mu.  The Tribunal is aware that the mu is a traditional Chinese unit of area equivalent to approximately 666.67m².  [The smaller amount] mu is therefore approximately [amount] m² or [amount] acre.  [Smaller amount] mu = [amount] acre or [amount] m². 

    ·He told the delegate that the official amount of compensation offered was [amount] RMB per mu but the village authorities took 20%, leaving [amount]. 

    ·He said that the highway in question was opened at the end of 2014 and that it was constructed by “[Company name]”;

    ·He said he had financed his trip to Australia from wages earned in casual jobs, and by borrowing money.  

35. At the hearing, the applicant confirmed to the Tribunal that the area of land expropriated was [amount] mu the official amount of compensation offered was [amount] RMB per mu but the village authorities took 20%; that the highway in question was opened at the end of 2014; and that he had financed his trip to Australia by borrowing money.

    Analysis of claims

    Credibility concerns

36. The applicant has given inconsistent evidence about a number of points relating to his claims. 

37. First, he told the delegate that, when he was detained, he was held in a detention centre located at “[Address 1]” in [City 1].”  This is set out in the delegate’s decision record as provided to the Tribunal by the applicant.  Early in the hearing, the applicant confirmed to the Tribunal that the delegate’s decision record accurately set out the evidence before the Department.  However, in his oral evidence at the hearing, he said that the centre was located in “[another address].”  When the Tribunal pointed out this contradiction, the applicant denied having said that the centre was located in [Address 1], saying that there was no such street in that area.  The Tribunal has considered this, but is satisfied that the decision record accurately states what he told the delegate on this point.

1. If the applicant had genuinely been detained, as he claims, the precise location of the place of his detention would not be a material factor.  However, the fact that the applicant has given 2 different locations leads the Tribunal to conclude that he simply made up an address on each occasion when he was asked about it.  This undermines the credibility of his claim that he was detained at all.

2. Second, he told both the delegate and the Tribunal for 9 days in October 2013, namely from [date] October to [date] October.  However, this contradicts his written claim that he and others were “detained for 7 days.”  Again, if the applicant had been detained, the precise length of his detention would not be a material factor, in the Tribunal’s opinion.  However, the fact that the applicant has given inconsistent evidence about the duration of the alleged detention, further undermines the credibility of the applicant’s claim that he was detained.

3. Third, when the Tribunal discussed the fact that Chinese law allows people to lodge complaints to specialised complaint offices at various levels of government (as set out in the decision under review) and said that it seemed implausible that he would have been detained having petitioned only at the local level, the applicant said that he had been detained on the first occasion when he went to the local office and was detained for a second occasion when he attempted to go to the provincial capital.  He confirmed initially that he had been detained on 2 occasions.

4. However, when the Tribunal pointed out that this contradicted his written claims which indicated that he only been detained after attempting to go to the provincial capital, he then said he had only been detained once.  This contradiction, coupled with the contradictions mentioned in paragraphs 37 -39 above, leads the Tribunal to find that the applicant was not intercepted while trying to travel to the provincial capital for the purposes of lodging a second petition and was not detained by Chinese authorities at any time.  It follows from this that the Tribunal finds that the applicant was not physically mistreated while in detention.

5. Fourth, as discussed with the applicant in accordance with the provisions of s.424AA of the Act, when he was interviewed by the delegate, the applicant said that the highway was to be constructed by “[Company name].”  However, when the Tribunal asked the applicant to identify the builders of the highway, he said it was the “[another company].  The Tribunal pointed out that this was relevant because the contradiction could lead the Tribunal to conclude that he had simply made up the name of the construction authority on each occasion he was asked.  Such a conclusion would undermine the credibility of his claims.  When invited to comment on this information and reminded of his right to seek more time in which to do so, he elected to respond immediately.  He denied that he had ever said anything about a “[Company name].”  The Tribunal is satisfied that he had told the delegate that the construction authority was “[Company name].”  It considers that the contradiction undermines the credibility of his claim that a highway was being built in 2013, and therefore of his claim that his land was expropriated for that purpose.

6. Given these contradictions, the Tribunal finds that the applicant is not a witness of truth.

   Was the applicant’s land expropriated in 2013?

7. The applicant claims that, in May 2013, he was advised that his farmland was to be expropriated because highway from Beijing to Hong Kong and Macao was to be constructed.  He told the Tribunal that the highway in question was completed in 2014.

8. However, as noted in the delegate’s decision as provided to the Tribunal by the applicant, sources consulted by the delegate “did not reveal any information about land expropriation for construction of the Beijing-Hong Kong Macau highway taking place in 2013 in Hebei province.”  The Tribunal has made its own inquiries in relation to the subject and has similarly found no evidence of any such land expropriation in Hebei for the purposes of the construction of a highway in 2013. 

9. Moreover, as discussed with the applicant at the hearing, the Tribunal is aware of country information indicating that the Beijing-Hong Kong-Macau Expressway [also known as the G4 or the Jinggang’ao Expressway] is an Expressway with a length of more than 2200 km which connects Beijing and the city of Shenzhen in in Guangdong province, at the border with Hong Kong and which has a spur line connecting to Macau.  It was completed in October 2004, at which time it was China’s first completed north-south expressway route (see Wikipedia article G4 Beijing-Hong Kong-Macau Expressway, at https:\en.wikipedia.org/wiki/ G4_Beijing%E2%80%93Hong-Kong%E2%80%93Macau_Expressway).  The applicant denied that this was the case, but the Tribunal accepts the country information just cited and finds that the highway in question was completed in 2004.

10. Given this finding, and the findings in paragraphs 42-43 above, the Tribunal finds that Chinese authorities did not expropriate land owned by applicant for the purposes of building a highway or expressway in 2013, particularly given the credibility concerns above and given that the applicant has not provided any documentation which would support his assertion that land was expropriated in 2013.  As discussed with him at the hearing, had his land been expropriated, the Tribunal would have expected there to have been some record of that fact available to him in the period of more than 2 years since the alleged events took place. 

11. It follows from the finding in the previous paragraph and that the Tribunal does not accept that the applicant was attempting to lodge petitions in late 2013.  The Tribunal also finds that, were he to return to China in the reasonably foreseeable future, he would have no reason to petition Chinese authorities.

    Conclusions

12. The applicant has made no claims for protection other than those based upon his assertion that he faced persecution because he had petitioned authorities in connection with the expropriation of his land in late 2013 for the purposes of building a highway.  At the conclusion of the hearing, the applicant was asked if there were any other matters he wished to raise, and he said there were none.

13. Given that the Tribunal has found that his land was not expropriated in 2013 as he claimed, and given that it has found he was not involved in lodging petitions in 2013 and that he was not detained or physically mistreated as he claimed, the Tribunal finds that, were he to return to China in the reasonably foreseeable future he would not come to the adverse attention of Chinese authorities for any reason and that, therefore, there is no real chance that he would face persecution for a Convention reason.

14. 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).

15. 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).  However, having rejected all the applicant’s claims regarding reasons he might face harm in China, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

16. There is no suggestion that the 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).

    DECISION

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

    Bruce MacCarthy
    

    Member