1504754 (Refugee)

[2017] AATA 535

1504754 (Refugee) [2017] AATA 535 (9 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1504754

COUNTRY OF REFERENCE:                  China

MEMBER:Mara Moustafine

DATE:9 March 2017

PLACE OF DECISION:  Sydney

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

Statement made on 09 March 2017 at 11:17pm

CATCHWORDS
Refugee – Protection visa – China – Political opinion – Pro-democracy movement – Tiananmen Square June 1989 – Protests – Psychological harm – Issue of passports – Alert lists

LEGISLATION
Migration Act 1958, ss 36, 65, 499
Migration Regulations 1994 Schedule 2

CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Yao-Jing Li v MIMA (1997) 74 FCR 275
Prasad v MJEA (1985) 6 FCR 155
Luu & Anor v Renevier (1989) 91 ALR 39
Randhawa v MIEA (1994) 52 FCR 437
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80

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. The applicant, who claims to be a citizen of China, entered Australia [in] December 2004 on a [temporary] visa, which was valid until [March] 2005. The applicant then remained in Australia unlawfully until [May] 2014.

2. The applicant applied to the Department of Immigration for a Protection visa [in] May 2014. The delegate of the Minister for Immigration refused to grant the visa under s.65 of the Migration Act 1958 (the Act) [in] March 2015.

3. The applicant applied to the Tribunal for a review of that decision.

4. A summary of the relevant law is set out at Attachment A.

5. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the refugee criterion or complementary protection criterion.

   CLAIMS AND EVIDENCE

   Application to the Department 

6. According to his application form and accompanying documents, the applicant was born on [date] in Haikou City, Hainan province, China. He had [number] years of education, completing his schooling in [year], a diploma in [subject 1] at [College 1] ([year range]) and variously, a Bachelor in [subject 1] at [University 1] ([year range]) or a ‘[subject 1] Advanced Diploma’ at [College 1] ([same year range]). He was employed as a [public official] at [Employer 1] ([years specified]), owner of a private [company] ([years specified]) and as [an occupation 1] at [Employer 2], identified as a ‘[type of employer]’ ([years specified]). His father and [specified siblings] are in Hainan China. He divorced his first wife, with whom he has a [child] and married an Australian permanent resident in Australia in 2008.     

7. In essence, the applicant’s claims are that, as a college student in Hainan in 1988 he became involved in the pro-democracy movement and participated in various protest actions in Beijing, culminating in the major demonstration in Tiananmen Square on 3-4 June 1989, when the military deployed troops and tanks to suppress the crowd. He witnessed the resulting death and bloodshed, which impacted on him mentally to this day. After the crackdown, as the government conducted widespread arrest of protesters and their supporters, he returned to his hometown, hoping to stay away from their search. As he had been unable to get a passport due to earlier problems with the authorities, he tried to keep his head down and completed a number of [subject 1] courses and started [occupation 1 work] locally. He ‘tried hard and managed to get on the [professional] exchange program with the assistance from the [employer] whereby he could apply for a passport in 2004’. He obtained the passport after paying a large sum of money as requested by an officer in the passport office; and was granted an Australian visa.   

8. Since arriving in Australia, he has heard from friends in China that his name is on ‘an alert list’ that would activate the moment he reentered China and that he would be persecuted and imprisoned. His family and friends have been repeatedly visited by the police and local authorities, questioned about his escape and whereabouts, told that China has many overseas agents that could cause him problems when they finally locate him and threatening retribution against them if they did not assist them to locate the applicant in Australia.

9. The applicant was interviewed by the delegate [in] March 2015 and the key points of the interview are set out in the delegate’s decision, submitted to the Tribunal by the applicant. The Tribunal has listened to the CD recording of the interview and is satisfied that the summary set out in the delegate’s decision record is accurate.

   Application for review

10. For the purpose of the review the applicant provided to the Tribunal a copy of the delegate’s decision record and is taken to be on notice of the delegate’s findings and reasons.

11. The Tribunal has also had regard to the applicant’s written submission and supporting documents, which were provided by the applicant’s agent on 4 December 2016 ahead of the hearing. These included statutory declarations from two of his college friends, who were granted Protection visas in Australia after the Tiananmen incident; and his [specified siblings] in China, who claimed that police came to their house searching for their brother and that he will be arrested if he returns to China. Also included were: a Psychological Assessment Report from a Consulting Psychologist dated [in] April 2014, prepared specifically for use in the applicant’s visa application and based on a single consultation [that month], which concludes that ‘there are particular aspects indicated in his history and psychological disorders consistent with those expected to be diagnosed in individuals who fear for their lives in anticipation of the occurrence of certain dreaded events’ and that ‘the background and assessment reveal compelling and compassionate circumstances … to support approval of the application’; and a letter from a consulting psychiatrist stating that the applicant has been under his psychiatric care since [April] 2015 and was suffering from [two specified conditions], ‘developed in the context of fear of being imprisoned and tortured by the Chinese government if he were to return to China’. The applicant also provided general country information regarding the Tiananmen Square protests and the fate of leaders of the protest movement, Hainan, Falun Gong and a list of Chinese dissidents from Wikipedia and photocopies of two passports in the applicant’s name (one issued in Hainan [in] 2004; the other at the Chinese Consulate General in [Australia] [in] 2014).   

12. The applicant appeared before the Tribunal on 13 December 2016 to give evidence and present arguments. The Tribunal discussed with the applicant his background, family, employment, reasons for leaving China, the events which led to his departure and why he fears returning to China. The Tribunal also received oral evidence from the applicant’s wife. 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 attended the hearing.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. Although the applicant did not present his passport at his Tribunal hearing as requested in the hearing invitation, on the basis of photocopies on the Department file and, in the absence of evidence to the contrary, the Tribunal accepts that he is a national of China and has assessed his claims against China as his country of nationality and receiving country.

14. The applicant’s claims to fear persecution centre on his alleged involvement in the pro-democracy movement and demonstrations in Tiananmen Square in Beijing on 3-4 June 1989, which were brutally suppressed by the Chinese authorities. He claims that if he returns to China now he will be arrested, persecuted and imprisoned as soon as he steps into China. At hearing he confirmed that he did not fear harm in China for any reasons apart from his involvement in the pro-democracy movement and Tiananmen Square protests. 

15. The Tribunal has had regard to the applicant’s written and oral evidence to the Department and the Tribunal, as well as information from independent sources, including the Department of Foreign Affairs and Trade (DFAT) relating to China and the treatment of 1989 pro-democracy activists. 

16. For reasons outlined below the Tribunal is not satisfied that the applicant has been truthful about his experiences in China and the reasons he fears harm there. The Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm for reasons of his political opinion or any other Convention reason in China; nor that there is a real risk that he will suffer significant harm if he is returned to China. 

17. The applicant’s evidence on key issues at hearing was vague, shifting and inconsistent, including with his written claims and evidence to Department, as well as with country information from independent sources. This raises doubts about his veracity and the general credibility of his evidence.

18. Although the applicant’s evidence about his participation in the democracy movement and Tiananmen protests in June 1989 was vague and lacking in detail, the Tribunal is prepared to give him the benefit of the doubt and accept that he went to Beijing with other students from his college in Hainan and was in Tiananmen Square during the 3-4 June demonstrations. Although the applicant’s [named sibling], stated in [his/her] statutory declaration that in 1988-89 the applicant resigned from work and got ‘fully involved in the democracy movement’, the Tribunal gives greater weight to the applicant’s own statement of claims, in which he indicated that he was ‘not a particularly active member’ of the pro-democracy organisation at the college, where he was at the time a student. Nor did the applicant suggest that he was a leader or played a high profile role in the demonstrations. He told the Tribunal that he was never arrested; and that his only direct interaction with the authorities after the protests was being interrogated by a policeman on one occasion in 1990 when he was studying at the [college] in Haikou City.

19. Notwithstanding his claim at hearing that he was under constant ‘monitoring’ and that his name was on a blacklist since 4 June 1989, the applicant was able to remain in China for some fifteen years after the Tiananmen Square protests, completing his college studies and working in a government [workplace]. In his application forms and evidence to the Department at interview the applicant stated that he completed his studies at [College 1] in [year range] and then worked until 2004 as [an occupation 1] at [Employer 2] (delegate’s decision record), which he described as a ‘government [workplace]’ (application form). At his hearing, however, the applicant shifted his evidence to say that, before leaving China, he [worked in occupation 1] for [number] years [with specified clients] in a small village [environment] in remote [County 1] and that he trained as [an occupation 1] at [a named college], although elsewhere in the hearing he said he said he studied at [a college] in Haikou City. In the Tribunal’s view, these inconsistencies in the applicant’s evidence stem from his attempt to counter the delegate’s view that he was not of interest to the authorities at the time he left China by claiming that he was hiding out in a remote location, as he did in his pre-hearing submission.

20. The applicant’s evidence as to how he left China was inconsistent between his hearing and his written claims. He told the Tribunal that, in order to escape from China, he paid an agent in remote [County 1] to arrange everything for him, including getting him a passport and Australian visa, for which he did not have to provide any documents, only photos; and that the [professional] exchange program for which his visa was granted was ‘just cover’. By contrast, in his written statement, the applicant said that as he could not get a passport because of difficulties he encountered in his previous job in the [public] office, after the protests he tried to keep his head down and completed a number of [subject 1] courses, started [occupation 1 work] locally and managed to get onto a [professional] exchange program ‘with the assistance from [his employer]’ so he could then apply for a passport, which he obtained by paying a large sum of money to ‘an officer in the passport office’. The Tribunal notes that in [his/her] witness statement, his [named sibling] also stated that [the applicant] ‘got the opportunity to study abroad as [an occupation 1] and went to Australia’. Moreover, in his application forms to the Department, he indicated, variously, that he completed a Bachelor in [subject 1] at [University 1] ([year range]) or a ‘[subject 1] Advanced Diploma’ at [College 1] ([same year range]).

21. Significantly, the applicant told the Tribunal that he left China from [Airport 1], one of China’s major international airports, on his own passport and without any difficulty. As discussed with the applicant at hearing, DFAT has advised that, even if someone could obtain a passport through a corrupt official, given the stringency of border checking in China, it is improbable that a dissident on a wanted list would be able to exit on a passport issued in his own name[1]. In light of this information, the Tribunal finds dubious the applicant’s claim that his name was on a blacklist at the time he left China and the speculation by his [named sibling], in [his/her] statutory declaration that [the applicant] might still be on the blacklist.

    [1] DIMIA CIS 1998, Country Information Report No 64/98 Passports and Exit Permit Issuing Procedures (sourced from DFAT advice 12 February 1998)

22. Further, as discussed with the applicant at hearing, the fact that he voluntarily went to the Chinese Consulate in [Australia] in order to obtain a new passport in [2014] seriously undermines his claim to fear harm from the Chinese authorities. The Tribunal finds it implausible that, if the applicant genuinely feared harm from the authorities, believed that his name was on a black list or alert list that would ‘activate’ the moment he reentered China, as claimed, he would venture into the inviolable premises[2] of the Consulate. The fact that he was issued with a new passport without any problem beyond an alleged time delay confirms the Tribunal’s view that he is not of interest to the Chinese authorities. The Tribunal considers disingenuous the applicant’s various responses that he had no choice but to go to the Consulate as his passport had expired; that it would be challenging for him to lodge his Protection visa application without a valid passport; and that he ‘took the chance’ because the Consulate was in Australia – ‘a safe country’.  

    [2]  Under the Vienna Convention on Diplomatic Relations 1961, this means that the agents of the ‘receiving’ State (Australia) may not enter these premises, except with the consent of the Chinese head of the mission.

23. Significantly, country information from independent sources, including DFAT and the US Department of State indicates that, although many 1989 activist were initially detained, those not considered “major key players” were released after interrogation.[3] Further, although the Chinese Government is sensitive about the 1989 Tiananmen protests, continues to silence debate and supress commemoration of the1989 protests, the authorities only target high level organisers who remain politically active.[4] According to DFAT, 1989 activists who return to China are likely to be of interest to the Government if they have since remained politically active and high profile.[5] By his own evidence at hearing the applicant has not been involved in any political activities against China while living in Australia. The Tribunal has considered, but does not find persuasive, the applicant’s comments when this information was drawn to his attention, that the Chinese government did not want a repeat of the Tiananmen protest, so would try to track down every person involved in protest and had been constantly monitoring him while he was in China because they wanted to prevent him from becoming a high level organiser. 

    [3] DFAT, Cable BJ 44445 – DORS applications, 7 December 1990

    [4] US Department of State, China Profile of Asylum Claims and Country Conditions, May 2007

    [5] DFAT, “CIR 61/02 Treatment on return of demonstrator”, 12 March 2002

24. The Tribunal’s concerns about the applicant’s truthfulness and the credibility of his claims are compounded by his failure to lodge his Protection visa application until fourteen years after his arrival in Australia. The applicant was unable to offer a credible explanation for this, saying only that he feared that if someone found out about his past and reported him, the Australia government would send him back to China and that what changed in 2014 was that he had been hiding for too long and his wife was ill and persuaded him to stop living in hiding.

25. The Tribunal has had regard to the reports of the applicant’s psychologist and psychiatrist (paragraph 11 refers). It notes that the Psychologist’s assessment states that it was prepared specifically for use in the applicant’s visa application and based on a single consultation [in] April 2014; while the applicant’s engagement with the psychiatrist began after the applicant received his Protection visa refusal from the Department. The Tribunal accepts that, after almost 14 years in Australia, the applicant is distressed and fearful of returning to China and has developed certain conditions in the context of this fear. However, noting that these reports are based largely on what the applicant has told the doctors and the Tribunal’s reservations about the applicant’s veracity, the Tribunal does not attach weight to any analysis of the causes of the applicant’s conditions contained in these reports.  

    Having considered the applicant’s claims and evidence, and in light of its concerns outlined above, the Tribunal finds that the applicant is not a reliable or credible witness. The Tribunal is not satisfied that the applicant’s claims for protection are genuine but finds that they were fabricated for the purpose of obtaining a Protection visa. The Tribunal does not accept that the applicant has been truthful about his experiences in China and the reasons he fears harm there. The Tribunal is not satisfied that, at the time he left China in 2004, the applicant was of interest to the Chinese authorities because of his involvement in the pro-democracy movement and demonstrations in Tiananmen Square in Beijing on 3-4 June 1989; nor that his name was put on a ‘black list’ or ‘alert list’ that would activate the moment he reenters China, as claimed. It follows that the Tribunal does not accept that if the applicant were to return to China, he will be persecuted and imprisoned or face serious or significant harm, as claimed.

26. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence before it, the Tribunal is not satisfied that he is in genuine fear of persecution for a Convention reason, or that there is a real chance that he will suffer serious harm if he returns to China now or in the reasonably foreseeable future.

27. The Tribunal has also considered the applicant’s claims under complementary protection.  The Tribunal has rejected the entirety of the applicant’s material claims on the basis that they were fabricated for the purpose of obtaining a Protection visa. In view of the above findings, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he would suffer significant harm, which includes arbitrary deprivation of life, the death penalty, torture or cruel or inhuman treatment or punishment or degrading treatment or punishment.

    Recusal Request

1. On 15 December 2016, two days after his hearing, the applicant wrote to the Tribunal, expressing his concern about a number of issues in relation to the hearing, including that the Tribunal did not seem to know about various supporting documents, including the ‘black list and its self-explanation’; certified copies of passports on his file (or the Tribunal would not have asked him to provide another copy)[6]; and statutory declarations from his [siblings]. He also suggested that the through the way the hearing was conducted the Tribunal showed that it seemed to have made the decision prior to the hearing. The applicant requested the Member to review carefully and ‘apply her fresh mind in making the decision of the review’; to recuse herself if the Member is ‘unable to be independent and impartial as she claimed’; and take into consideration his psychologist’s report and medical letter from his psychiatrist, together with other supporting documents provided. 

   [6] As noted at paragraph 13, applicants are expected to present their passport at hearing in order to establish their identity.

2. After considering the request, as well as the conduct of the hearing, the Tribunal believes that it has carefully reviewed all written and oral evidence, including all documents in the applicant’s files; applied a fresh mind to the decision-making process. At the beginning of the hearing, the Tribunal clearly explained to the applicant the evidence on which the Tribunal would be relying in making its decision, including the file of the Department of Immigration and the material he had given to the Department and the Tribunal, as well as his evidence at hearing and information from independent sources. The Tribunal also explained that, as well as being an opportunity for the applicant to give evidence in support of his case, the purpose of the hearing was an opportunity for the Tribunal to obtain the information it needed to make a decision, by asking him some questions and discussing any concerns about his case. As the Tribunal is required to do, the Tribunal also indicated to the applicant aspects of his claims that the Tribunal considered were open to doubt and invited him to comment on these matters[7]; as well as on country information that might be adverse to his case.  

   [7] See SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80.

3. The Tribunal does not consider any basis upon which a fair-minded and appropriately informed lay observer might reasonably apprehend that it did not bring a fair, impartial and independent mind to the determination of the current review on its merits. The Tribunal therefore declined the request to recuse itself.

   CONCLUSIONS

4. 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).

5. 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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

6. 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

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

   Mara Moustafine
   Member

   
   

   ATTACHMENT A: RELEVANT LAW

8. 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.

9. 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).

10. 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.

11. 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’).

12. 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

13. 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. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her: Prasad v MJEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MIEA (1994) 52 FCR 437 at 451.