1505326 (Refugee)

[2017] AATA 3184

1505326 (Refugee) [2017] AATA 3184 (17 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1505326

COUNTRY OF REFERENCE:                  China

MEMBER:Andrew Mullin

DATE:17 January 2017

PLACE OF DECISION:  Sydney

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

Statement made on 17 January 2017 at 11:51am

CATCHWORDS

REFUGEE – protection visa – China – imputed political opinion – opposition to government demolition of family home and business – inadequate compensation offered – delay in applying for protection – credibility issues – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 36, 65, 424AA, 499

Migration Regulations 1994 (Cth), Schedule 2

CASES

Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MIEA (1994) 52 FCR 437

Yao-Jing Li v MIMA (1997) 74 FCR 275

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 on 23 July 2014 and the delegate refused to grant the visa on 17 March 2015.

3. The Applicant was represented in relation to the review by his registered migration agent.

   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. 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.

7. 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’).

8. 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 AND EVIDENCE

9. The Tribunal has before it the Departmental and Tribunal files relating to the Applicant.  The Tribunal has also had regard to the material referred to in the delegate’s decision record.

10. In his protection visa application and an accompanying statement the Applicant claims, in summary:

    ·He was born in Liaoning, China, in [year].  He received a total of nine years of formal education in [Town 1, City 1], Inner Mongolia, ending in [year].  He was employed from 1987 to March 2009 in a [certain] capacity in an [repair] business which he and his father owned.  His wife, [children], parents and [siblings] live in China.  He arrived in Australia most recently on 10 September 2009, having made a previous visit from February 2008 to March 2009 on a Subclass 685 medical treatment visa.

    ·The business he and his father owned was prospering.  In January 2008 they received notice from the [City 1] demolition office advising that their property was required for construction of a large-scale shopping mall and that the business should relocate within a limited period.  They were offered compensation at the residential-use level of Rmb [amount] per square metre, significantly below the commercial-use level of Rmb [amount] per square metre which was applicable to the property. 

    ·They believed the compensation offer was unfair so they went to see officers of the town government, with whom they quarrelled.  The compensation offer was increased but only to Rmb [amount] per square metre and, despite an approach to the demolition office by his father in July 2008, [in] October 2008 they were presented with a compensation agreement by the developers with this figure as the applicable rate.  They were told that if they refused to follow government instructions they would be forcibly moved and would have to bear any loss.  His father refused to sign the agreement.

    ·They made a further approach to the demolition office in March 2009 but the relevant officers refused to see them.  Water and electricity connections were cut [in] March 2009 and the next day the Town government brought the developers and the police to the property and demolished it.  He and his father had a physical confrontation with these people and the Applicant was detained for fifteen days on an accusation of fighting the police and government officials.  While in detention he was beaten with a stick and an electric baton and was forced to confess these offences.

    ·Following his release he appealed to the city Public Security Bureau (i.e. police) and the city government but he was threatened and was told that if he dared appeal again he and his family would be killed.  He was extremely angry and decided to sue the authorities in court.  He wrote a letter of appeal to the Provincial government and tried to engage lawyers but they would not take on his case in fear of losing their jobs if they represented him.  In desperation he engaged in a sit-in protest outside the gate of the government building, holding a sign asking for fair compensation.  Unexpectedly, the authorities sent people to beat him and accuse him of disrupting social security and framing the government.  He was warned that if he continued to protest he would be detained.  He fully understood the dark side of Chinese government and lost hope.  He decided to flee and applied to come to Australia as soon as possible. 

    ·Police came to his home to harass him and he told them he would fight the authorities to the very end.  Later a summons notice was left demanding that he attend a police station to undergo interrogation.

    ·He is afraid to return to China, where his safety would be at risk. 

11. Attached to the protection visa application are photocopied pages from the Applicant’s Chinese passport issued by the Chinese Consulate-General in [City 2] [in] 2009.

12. The Applicant attended a protection visa interview on 11 March 2015.  He added to his claims that:

    ·He came to Australia for the first time in February 2008 as a supporter for his sister who was suffering [a medical condition] and needed a [procedure].  The [procedure] did not take place, however, and he returned to China in February 2009.  Regarding his most recent travel to Australia, using a [temporary] visa he said his visit was to [investigate] repair of [specified] equipment.

    ·He moved with his family to [Town 1, City 1], in Inner Mongolia in [year] and lived there until March 2008.  After leaving High School [he] worked in his father’s [business].  The shop was attached to the front of their house.  When the premises were demolished in mid-April 2009 his parents relocated to live in their original house, situated in [Village 1] about eight kilometres from [City 1].  They are still living at this address.  The compensation of Rmb [amount] per square metre was paid to his father in 2009, after the Applicant left for Australia. 

    ·Reminded of the claim in his protection visa application that the demolition of his family home occurred in March 2009 he said that although the authorities came to the premises in March to tell the family to move out, they did not leave until they were forced to do so, in April 2009.  Asked about any documents he might have relating to the forced acquisition of his family home and the issue of compensation he said all his documents were in China.

    ·Regarding his petitioning activities he said that together with his brother he went to the [City 1] government in March 2008 and to the Hailar Provincial government in April 2008.  In October 2008 he protested outside the [Town 1] government.  It was put to him that he had, in fact, been in Australia from 15 March 2008 until 20 February 2009, making it difficult to accept that he had been involved in any such appeals or petitions.  He replied that his father had been involved in these activities and he himself was only involved after he returned to China in February 2009.  Asked if he was familiar with the established procedures for petitioning various levels of the Chinese government he said he could not leave town as he had been under surveillance following his release.  It was put to him that he had previously claimed that he did, in fact, leave town and returned to the family’s previous house in [Village 1].

    ·It was put to him that the delay of nearly five years between his most recent arrival in Australia and his application for protection, in July 2014 was an indication that had travelled to Australia for economic reasons rather than because he feared persecution.  He said that at first he did not have many friends in Australia and nobody told him about protection.  To the observation that if he had had a well-founded fear of persecution he would have known where to apply he said he lost his passport soon after he arrived in Australia.  He obtained a new passport but did not know how to go about getting a stamp in it.

    ·It was put to him that his ability to pass in and out of China when travelling to Australia on two occasions and to obtain a new passport from the Chinese Consulate in [City 2] was an indication that he had no problems with the Chinese authorities.  He denied this was the case.  He had told nobody that he was going overseas and left in secret.

    ·Asked what he feared would happen to him if he returned to China he said he would be in trouble with the development company which took his land.  They hired underworld, or mafia, figures to force people from their homes.  They had already threatened him that he would be harmed if he continued to protest.  Asked the name of the company he said he had forgotten it.  Asked why these people would wish to harm him five years after his land was taken and compensation had been paid he said that if he returned he would continue to complain that the compensation was unfair, although he thought there was only a slim chance of this succeeding.  To the observation that he had not involved himself in any such complaints over the previous five years he said he did not know about this.

    ·Asked if he had any documents regarding the demolition of his family’s home and his arrest he said they were at home.

13. The Applicant appeared before the Tribunal on 22 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.

14. The Applicant’s evidence was, in summary:

    ·There was an error in his previous claims concerning the time when he was asked to attend the local police station in [Town 1].  This was in July 2009, not 2010.  Asked how he knew that they wanted him to report to them he said they sent him a notice at his father’s house in [Town 1, City 1].  Asked again, he confirmed this happened in July 2009.  Asked if he had received the letter he said he had.  He had not attended the police station and instead hid away in a friend’s house.  Asked why he was wanted he said it was because of the police and the people from the demolition department.  Asked once more he said he had an argument and they arrested him.  They threatened him and he was too scared to go, so he hid.  Asked why the police would want him to come to the police station once more if he had already been arrested he said it was because he and his father had not agreed to sell the property as they had not been offered a proper price.  Asked why this would make them wish to arrest him he said they tried to force him. 

    ·Asked if he meant that his family house had already been forcibly demolished at this time he said it had.  I put to him this made it difficult to understand how the police could have delivered a letter there for him.  He then said the house was not demolished when he was in China, but only after he came to Australia.  Asked when it was demolished he said it was about November 2009.  Asked if he was sure of this he said he was.  I put to him that this information was quite different from what he had claimed previously.  He said the question was not raised before.  I put to him that it had, in fact, been raised many times in his protection visa interview; further, his own written statement claimed the house was demolished in March 2009, he had fought with the people who were sent to carry out the demolition and he was detained for fifteen days as a result.  I put to him his previous claims meant the house was demolished but seven months before he had departed China, not following his arrival in Australia as he was now claiming.  Invited to comment he repeated that the demolition was not complete at that time and was only completed at the time he came to Australia.

    ·I put to him once more that it was difficult to believe this claim given that in his written statement he had said the house was demolished in March 2009 and that he fought with police at the time.  He said that if the house was not demolished he would not have fought with the police.  Because he did so the demolition was stopped.  Asked if he was claiming that simply because he had fought with police the company decided not to go ahead with the demolition he said the house was only partially demolished because the people involved were afraid of bad publicity.

    ·Asked if he meant he had been living in a partly demolished house he said he did – there had been nowhere else to live.   Reminded of the claim in his protection visa interview that he had gone to live with his father in his house in [Village 1] he said this was their old house.  I put to him again that he had changed his evidence.  He repeated that his parents went to live in the old house.  I put to him that in the interview he had said that he lived with his parents in the village because the house in town had been demolished.  He maintained that in the interview he had said it was half demolished. 

    ·Asked about his employment in China he said he [worked] for his parents.  Asked what had become of the business he said it had finished as they no longer had premises to operate it.  Asked why they could not have rented business premises elsewhere he said it was because they are aged and in poor health.  Asked why he himself could not have rented business premises he said he did not do so, adding that gangsters would have found them out if they had begun the business again.

    ·Asked who these gangsters were he said he did not know – they were just local gangsters.  Asked why they would have wished to harm him he said they are connected with the developers.  Asked why the developers would wish to harm him he said they wanted to demolish his house.  Asked why they would wish to harm him if the house had already been demolished he said they still wanted to find his family because they had fought with them and there were casualties.

    ·Asked if he had any documents concerning the demolition of the house he said he did not – all the family’s cameras and mobile phones were taken from them and there were no media reports.  He confirmed he meant that the demolition of possibly hundreds of houses, in order to construct a shopping mall, had gone unreported.  I put to him it seemed hard to understand why he would have no documents, given that the issue had been raised with him in his protection visa interview eighteen months previously.  He said he had brought nothing to Australia.  To the observation it seemed surprising that he would not have been able to obtain any of these documents from his parents he said they are very old and do not know how to use a computer.  Asked if they could not have used the postal service he said they do not know how to do so and have never posted a letter.  He agreed they ran a business but said this did not require them to use a computer.  He agreed the business did use the postal service but said he did not know how to make his parents send him documents by post.

    ·Asked why he had left China to come to Australia on the second occasion he said he feared persecution by the police and gangsters.  Noting there was information before the Tribunal indicating that although he obtained his visa on 24 August 2009 he did not leave China for another two weeks I asked why he would not have left as soon as the visa was granted.  He said it was arranged in [another] Province and he had gone there to collect it.  Asked why he had not left China as soon as he received it he said he had to travel to [the other province] by train and he stayed there for a few days as he thought it was sufficiently far from his home area to be safe.

    ·Asked about his first visit to Australia he said his sister was ill [and] the purpose was to establish whether he would be suitable as a donor for a [procedure].  Asked if his sister travelled with him he said she did not.  Asked why, in these circumstances, he had needed to remain in Australia for twelve months he said his ex-wife had travelled with him.

    ·Noting that he had delayed applying for protection for almost five years following his second arrival in Australia I put to him that such a lengthy delay could cast doubt on the truth of his claim to fear harm in China.  He said he has no friends in Australia and did not know much.  To the observation that, if he had genuinely feared harm he would have asked a migration agent or someone else how he could remain he repeated that it was only later that he read something in the newspapers which made him understand that he could gain protection.  Noting that the issue of protection and refugees has been very prominently and regularly reported for at least the last ten years I put to him that it seemed surprising it would take him five years to discover it in a newspaper.  He said he vaguely remembered reading something in the papers suggesting that it was the last opportunity to apply for protection.  This had prompted him to go to the Department about it.

    ·I put to him that if the police had been after him in China it seemed difficult to understand how he had been able to leave through the airport without any difficulty or how he had subsequently been able to obtain a passport at the Chinese Consulate-General in [City 2].  He said he applied for the passport before his house was demolished.  He lost this passport after coming to Australia and he applied for new one while he was here.  The police did not know he had a passport as he had applied for it in another city.  To the observation that the authorities have national computerised information systems he repeated that he did not tell anyone.  He added that no ‘wanted’ notice had been issued for him because his case was not sufficiently serious. 

    ·I asked why, if no wanted notice had been issued for him at the time, he would fear returning to China seven years later.  He said gangsters would harm him.  Asked how he knew these people wished to harm him he said they were present when his house was demolished.  When the question was put to him again he asked, in return, how he could know that they did not wish to harm him.

    ·Pursuant to s.424aa of the Act I noted that I had already discussed with him information from the Departmental file - relating to the issue of an Australian visa to him in on 24 August 2009 and to his evidence at the protection visa interview that his parents’ house in town was demolished in April 2009, that he fought with police and was detained for fifteen days and that he had then gone to live with his parents in their home in [Village 1].  He confirmed he understood this information.  I explained the information was important for his case because it could indicate his current claim that his parents’ town house was not demolished until after he arrived in Australia was untrue and could also cast doubt over the truth of his claim that he left China because he feared he would be harmed.  If I were to believe these elements of his claims were untrue this would lead me to believe he would not face harm in China and would be a reason to affirm the decision not to grant him a protection visa.  He confirmed, after some further explanations, that he understood why the information was important. 

    ·I invited him to comment on the information or respond to it in any way he wished, explaining that he could do so at once, at an adjourned hearing or in writing, with further time available for this purpose if necessary.  Indicating that he wished to respond immediately he said there was a delay in picking up his passport and visa because he could not travel by train or plane and, instead, had to take a bus to [the other province].  He was delayed because the road was difficult and the passengers sometimes had to get out and walk.  I recalled his previous evidence that he had travelled by train when he went to pick up his visa.  He said he took a train after he left Inner Mongolia, confirming he meant he travelled by both train and a bus.  He indicated he had no other comment to make.

    ·Asked if there was anything he wished to add he said there was not.

    FINDINGS AND REASONS

1. On the basis of the photocopied pages of his passport attached to the protection visa application I accept that the Applicant is a citizen of China and that his identity is as he claims it to be.

2. The Applicant claims to fear harm in China at the hands of local officials whom he has angered by protesting about their corrupt activities.  He also claims that local gangsters wish to harm him.  Although he does not specify a Convention ground I accept that he can be seen as claiming to fear harm because of his real or imputed political opinion.

3. 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 MIEA (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 at451.

4. In the present case the Applicant’s claims to fear harm in China consist of generally vague assertions which are unsupported from any external source.  They are, in summary, that he and his parents objected to the forced acquisition of the family home and attached business in [Town 1], that he was detained and beaten after he fought with police and officials when the house was demolished in April 2009, that he continued to demonstrate against the lack of fair compensation and that he was threatened with further detention or death if he continued with his protests.  I believe there are reasons to doubt the truth of these claims.

5. First, when he was asked at the hearing what harm he feared in China the Applicant said the police were after him.  He knew this to be so because in July 2009 they had left a note at his father’s home in [Town 1] telling him to report to the police station.  They were angry with him because he argued with them over the demolition of the house.  He confirmed he meant the house had been already been demolished at this time.  When he was asked how it had been possible for the police to leave a letter for him in a demolished house he then changed his evidence by claiming it was only partly demolished, and its full demolition did not occur until after he arrived in Australia.  When it was put to him that he had claimed, in his protection visa interview, that he went to live in [Village 1] with his parents after the demolition he said they went to live in their old house there but he continued to live in the partially demolished house in [Town 1].  He added that the reason the demolition remained incomplete was that he had fought with the officials at the scene, causing them to fear bad publicity if they continued. 

6. I believe these responses indicate the Applicant was prepared to change his evidence when the logical difficulty of a police letter being delivered to a demolished house was brought to his attention.  Having considered his previous oral and written evidence I am satisfied that he consistently claimed the house, together with its attached business, was demolished in either March or April 2009.  There was no suggestion in his previous evidence that the demolition was incomplete or that he continued to live on in the ruins.  To the contrary, his evidence at the protection visa interview was that he and his parents moved to their old house in [Village 1] and that he stayed there with them until he left China for Australia, for the second time, in September 2009.  I find inconsistent, and quite implausible, his new claim to have lived for five or six months in a house which remained only partly demolished because the authorities were prevented from proceeding with their plans when he fought with them.

7. Second, the Applicant has advanced no plausible reason why police would wish to harm him now, more than seven years after he last left China.  As put to him at the hearing, his ability to leave China on two occasions and to obtain a replacement passport from the Chinese Consulate General in [City 2] shortly after his second arrival is an indication that he was not of any adverse interest to them while he was in China.  There is nothing in his account to indicate that he has taken any action while he has been in Australia, either during his first visit or his current visit, to protest against the authorities and I am not satisfied there is any basis to believe that he would take such action if he were to return. 

8. Third, I am not satisfied it is plausible that, as he claims, he would be at risk of harm on return to China from unidentified local gangsters.  The only reason he could advance for this alleged continuing enmity, more than seven years since he was last in China, is that they are angry with him for fighting them when they arrived to enforce the demolition of his family home.  I do not accept this is at all likely.

9. Finally, as also put to the Applicant at the hearing, his delay of almost five years in lodging his protection visa application following his second arrival in Australia in September 2009 casts further doubt over the truth of his claim to fear harm in China.  I have considered the reason he offered for the delay, to the effect that he had no friends in Australia and did not know very much about the subject, but I am not satisfied it explains why, if he had genuinely fled to Australia to escape harm, he would not have taken an early opportunity to find out how he could obtain protection and then act on that advice.

10. Having considered these aspects of the Applicant’s evidence I am not satisfied that his claims can be relied upon.  In particular, I am not satisfied that his family home and attached business premises was compulsorily acquired or demolished, either partially or completely.  It follows that I do not accept he was involved in protesting over such a demolition or that he came to the adverse interest of the Chinese authorities for such a reason.  Nor do I accept that he was ever in conflict with local gangsters, as he claims.  It also follows that I do not accept he would be at any risk of harm from the authorities, gangsters or anyone else on return to China for the reasons he claims.  He does not claim to fear harm in China for any other reason and no other reason is apparent on the face of the information before the Tribunal.

11. In the light of all the information before the Tribunal I am not satisfied there is a real chance that the Applicant would suffer serious harm for a Convention reason should he return to China, now or in the reasonably foreseeable future, and I am not satisfied that he is a refugee.  Therefore the Applicant does not satisfy the criterion set out in s.36(2)(a).

    Complementary protection

12. I have also considered whether the Applicant might meet the alternative criterion for complementary protection.  Having done so however I am not satisfied, on the information before the Tribunal, that there are substantial grounds to believe that, as a necessary and foreseeable consequence of his being removed from Australia to China, there would be a real risk that he would suffer significant harm in terms of s.36(2)(aa) of the Act.

13. 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) for a protection visa.

    Decision

14. The Tribunal affirms the decision not to grant the Applicant a Protection (Class XA) visa.

    Andrew Mullin

    
    

    Member