1505305 (Refugee)

[2016] AATA 4659

1505305 (Refugee) [2016] AATA 4659 (4 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1505305

COUNTRY OF REFERENCE:                  China

MEMBER:Antoinette Younes

DATE:4 November 2016

PLACE OF DECISION:  Sydney

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

Statement made on 04 November 2016 at 10:15am

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] June 2014 and the delegate refused to grant the visa [in] March 2015.

3. The applicant appeared before the Tribunal on 3 November 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.

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. 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’).

7. 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.

   CLAIMS & EVIDENCE

8. In the application for a protection visa, the applicant made the following claims:     

   a.He came to Australia because he had a land dispute with the Chinese government. He was beaten by the police in China and he fears returning. His wife and mother live in a village, [name] town where normally everyone has [number]mu of land but his family has [number]mu. He worked outside the village throughout the year and no member of his family could cultivate land. The village committee rented land but only gave him [amount]RMB per mu of land. He knew that the committee had rented land to others for [amount]RMB per mu and the rest of the money disappeared. He went to meet the village leader in relation to the shortage of land and they told him that the shortage of [number]mu of land was built for [a certain use] by the government but they only gave him [amount]RMB a year.

   b.In 1990, his application for [number]m² of building area was approved but he only used [number]m². In 2010 he had a land dispute with his badly-mannered neighbours in relation to the fence. He went to the village [director] who is a relative of the neighbour. His neighbours smashed the fence in front of the village leader and beat his father. All members of the neighbour’s family threatened the applicant and the neighbour’s mother threatened him with a kitchen knife while the village leaders ignored it completely. His father died as a result of the injuries a few moments after the incident.

   c.He has been watching the village director since that incident and in March 2013, he was re-elected through bribery. He reported this to the petition officers in [the] city but they told him to go back. Subsequently, someone went to his home and taught him a lesson which scared him. He was threatened not to petition against the village director and after being beaten, the neighbours kept watching him. He fled China because there are no human rights or freedom.

   d.He is in Australia and the company for which he worked only gave him one month holidays. He would lose his job in case of not returning to China. He cannot live in China because of the persecution of the village director. Australia is a country with human rights, justice and democracy and he would like to take refuge in Australia. He hopes that the Australian authorities could help him fight for justice. If he were to return to China, he fears that he would be killed by the village director who had asked someone to hit him.

9. In support of the application for review, the applicant provided a copy of the delegate’s decision record in which it is noted that the applicant was interviewed by the Department and he had referred to his age, having turned [age] years a day prior to the interview, as presenting difficulties in finding employment. The delegate proceeded on the assumption that even if the applicant’s account were to be true, he could relocate to other parts of China.

   FINDINGS AND REASONS

10. On the basis of the available information, the Tribunal finds that the applicant is a national of China. The applicant made no claim to be a national of any other country. The Tribunal finds that the claims should be assessed against China for the purpose of s.36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa).

11. For the reasons explained below, the Tribunal does not accept that the applicant has suffered any of the claimed harm. In the course of the hearing and in response to a number of questions by the Tribunal, the applicant stated that he has memory problems. The Tribunal has considered this explanation but is not persuaded or convinced. On the basis of the available information, the Tribunal is not satisfied that the applicant suffers from any memory difficulties, or that the applicant suffers from any condition which the Tribunal needs to take into consideration in assessing his claims. Overall, the Tribunal found the applicant’s evidence to be vague, general, and lacking in significant details. He required substantial prompting and the Tribunal had to repeat questions in order to obtain a coherent picture of the applicant’s claims. The Tribunal acknowledges that some of the matters outlined below when considered in isolation may not lead to an adverse credibility finding, however when those matters are considered cumulatively, the Tribunal is satisfied that they raise doubts about the applicant’s claims and his general credibility.

12. The Tribunal asked the applicant about the completion of the application for a protection visa and the applicant stated that a student friend with whom he spoke in Mandarin had completed the application. The applicant confirmed that the information contained in the application is true and correct.

13. The Tribunal asked the applicant about his claim relating to the land dispute. The applicant said he had a land dispute in that he should have been given [number] acres of land but he was only given [number] acres. He said instead of being given $[amount] per acre, he was given $[amount]. The Tribunal asked him why he would have been given money in the dollar currency and now he stated that he was given money in RMB. The Tribunal asked the applicant how much money he was given in RMB and he stated that he was given more than [amount]RMB per acre and that he was given more than [number] acres. He said he should have been given more than[number] acres. The Tribunal asked him when he was given the acres of land and the applicant now stated that he was never given any land. The Tribunal referred to his earlier evidence that he was given more than [number] acres of land and now the applicant said that the land was being developed by the developers. The Tribunal asked the applicant again about his land dispute and he stated that he should have been given [number] acres of land but was told that he would be given more than[number] acres of land, however the land was given to the developer for a [certain purpose]. The Tribunal asked the applicant when the land was given to the developer and he stated that it was in 2011. The Tribunal referred to the applicant’s written claims where he had stated that his family has [number]mu and others in the village had [number]mu of land. The Tribunal further referred to the claim that the village committee only gave him [amount]RMB per mu of land. The Tribunal asked the applicant why there is a difference between the written claims and his oral evidence.  He stated that perhaps that was due to his memory “but anyway the situation is like that”. The Tribunal found the applicant’s evidence in relation to the land dispute claim to be incoherent, inconsistent and vague raising doubts about the claims and the applicant’s general credibility.

14. The Tribunal asked the applicant about his claim that the committee had rented the land with an income of [amount]RMB per mu and that the rest of the money had disappeared. The applicant stated that according to the accountant of the village, he should have been given more land. He said he petitioned the village leader who threatened him. The Tribunal asked the applicant when he was threatened by the village leader and he stated between 2011 until 2013. The Tribunal asked him how he was threatened and he stated that the village leader told him to take what he was given otherwise he would kill him. The Tribunal asked the applicant on how many occasions the village leader threatened him to which the applicant responded “whenever I visited him, he threatened me… whenever I met him on the road…” The Tribunal found the applicant’s evidence in relation to his claims of being threatened to be general and lacking in significant details raising doubts about those claims and the applicant’s credibility.

15. The Tribunal asked the applicant what happened in 1990. He stated that this relates to when his neighbours built a fence and the neighbour attacked his father with a knife. The Tribunal asked him again when that incident occurred and he confirmed that it was in 1990. The Tribunal asked him when exactly the incident occurred and he stated that he could not recall exactly but thought it was in July or August 1990 when the neighbour smashed the fence. He said the neighbour is a relative of the village leader. The Tribunal asked him what happened to his father and the applicant stated that his father passed away as a result of the injuries he sustained from the attack. The Tribunal asked him whether the incident was reported to the Chinese authorities and he said that it was but officials protected each other. The Tribunal referred to the applicant’s written claims noting that the incident occurred in 2010. Now the applicant said that the incident did occur in 2010.  The Tribunal asked him why he had earlier said that it occurred in 1990. The applicant stated that perhaps this was due to his bad memory. The Tribunal asked him when the incident occurred in 2010 and he stated it was in July or August 2010. The Tribunal asked the applicant if he has any evidence to support his claim that his father had died as a result of the injuries, such is a death certificate and the applicant said that there was a witness in China. He stated that his father was [age] and he was in good health but died from the attack. He said his father lost his appetite subsequent to being attacked by the neighbour. He said the neighbour strangled his father and he was consequently unable to eat well. The Tribunal asked the applicant how long after the attack incident his father died and he stated that his father died [number] to [number] months after the incident of attack. The Tribunal indicated to the applicant that he had claimed in writing that his father had died a few moments after the incident. In explaining the inconsistency, the applicant referred to his memory problems. The Tribunal found the applicant’s evidence in relation to the claim of attack to be significantly different to what he had claimed in writing. This is a central claim and the inconsistencies in the versions provided by the applicant raise serious doubts about the claim as well as the applicant’s credibility.

16. The Tribunal asked the applicant when the village director was re-elected and the applicant stated that he could not recall but he was re-elected through bribery. The Tribunal indicated to the applicant that in writing he had stated that the village director was re-elected in March 2013 and the applicant stated that he was re-elected after spending money. The Tribunal asked the applicant about his claim that the village director went to his home and taught him a lesson. The applicant stated that he was about to accuse the village leader when he sent someone to threaten the applicant. The Tribunal asked him when that occurred and he stated he could not recall exactly but it was towards the end of 2012. The Tribunal asked him more about that incident and he stated that two tall people threatened him verbally and smashed the window of the main entrance to the house. The Tribunal referred to the written claims and indicated that he did not claim that the window of the main entrance was smashed but claimed that he was beaten which he did not mention to the Tribunal. The applicant responded “… Maybe when I try to add it, it’s too late…. It’s true”. He said he fears threats and returning to China because he would face being beaten. The applicant’s evidence in relation to the incident was overall inconsistent with his written claims raising doubts about their veracity and the applicant’s credibility.

17. The Tribunal is satisfied that when the above noted concerns are considered cumulatively, they indicate that the applicant is not credible. For those reasons and without any corroborative evidence, the Tribunal does not accept that the applicant was given less land than to what he was entitled, or that he was paid less for his land, or that he had a land dispute with the Chinese authorities of any nature, or that he had a land dispute with his neighbour in relation to the fence, or that the neighbour was a relative of the village director, or that the applicant went to the village director, or that his neighbour smashed the fence in front of the village leader, or that the neighbour ever beat his father, or threatened him with a knife, or that his father died as a consequence of that assault, or that the village director was re-elected through bribery, or that the applicant reported this to the petition offices, or that anyone ever went to his home and threatened him or smashed a window in his house, or beat him, or that the neighbours kept watching, or that he left China because there are no human rights or freedom, or that he would lose his job in case of his return to China, or that he cannot live in China because of any of the claimed reasons, or that he fears that he would be killed by the village director in case of his return.  In essence, and for the reasons stated, the Tribunal does not accept that the applicant has suffered any of the claimed harm, or that there is a real chance or risk of serious or significant harm occurring to the applicant on his return to China.  For those reasons, the Tribunal finds that the applicant does not have a well-founded fear of persecution. 

18. 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 s.36(2)(a).

19. 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).  For the reasons given above, the Tribunal finds that there are no 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 will suffer significant harm for any reason.  Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

20. 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

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

    Antoinette Younes

    
    Senior Member