1506071 (Refugee)

[2016] AATA 4881

1506071 (Refugee) [2016] AATA 4881 (27 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1506071

COUNTRY OF REFERENCE:                   China

MEMBER:Tony Caravella

DATE:27 June 2016

PLACE OF DECISION:  Perth

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

Statement made on 27 June 2016 at 5:22pm

CATCHWORDS

Refugee – Protection Visa – China – Complementary protection – Fear of authorities – Previous adverse interactions with authorities – Land disputes – Debts owed in home country – Witness credibility – Claims differ from claims previously made – Inconsistent evidence

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo & Anor (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

SZGIZ v MIAC [2013] FCAFC 71


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).

   Background and protection claims

2. The applicant who claims to be a citizen of China, applied most recently for the protection visa [in] March 2014 and the delegate refused to grant the visa [in] April 2015.

3. Prior to this present application, the applicant applied for a protection visa [in] May 2010 after first arriving in Australia [in] February 2010.  A delegate refused to grant the applicant a protection visa [in] August 2010. 

4. The applicant then applied to the Refugee Review Tribunal (RRT) for a review of that decision, however, [in] December 2010 the RRT affirmed the delegate’s decision

5. The applicant then sought judicial review of the RRT’s decision, and [in] April 2011, the Federal Circuit Court dismissed the applicant’s appeal.

6. [In] March 2014, the applicant again applied for a protection visa. He has done so on the basis that he is not excluded to apply for protection pursuant to the complementary protection provisions, that is s.36(2)(aa) of the Act, as a result of the decision on SZGIZ v MIAC [2013] FCAFC 71.

7. In the applicant’s most recent written application for protection, he writes that he left the People’s Republic of China (PRC) “to escape the persecution and mistreatment by the authorities and police”.  He claims that he had been detained by the police 3 times because he “persisted in claiming my rights to market stall I had valid lease with me.  In one occasion, I had been dragged on the ground and badly beaten by the police left to me with permanent scars.”

8. The applicant explains the nature of the fear of what may happen to him if he returns to PRC in the following terms: “I am fear of detention, punishment, torture and mistreatment sustained from the authorities and the police if I will continue to claim my right of the compensation as a result of the market being used for the property development.”

9. The applicant claims that he fears the authorities and the police in PRC.  He claims that “I have a valid lease to the market stall.  The authorities colluded with the developers and planned to redevelop the property where the market stall located.  The authorities disregarded the lease and took back our licence without any compensation.  As a result of it, we had to close the business.  The perishable product became the rubbish.  The procurement of the perishable product was funded by the villagers who have been after me for the money as well.  If I were removed to China, I will assert my rights and will be persecuted by the authorities again.  The villagers will continue to pursue their lost money from me if I were facing them.  It is likely the villagers will take violent means against me if I cannot afford to pay back the debt.”

10. In reply to the question which asks whether he thinks the authorities in his country can and will protect him,  the applicant claims the authorities have engaged in “the inhuman act and depriving of lease right to market stall or denying the right to fair compensation.”  He claims the Chinese authorities will not give him any protection. 

    The Delegate’s decision 

11. [In] April 2015, the delegate refused to grant the applicant a protection visa.  The delegate referred to the decision in SZGIZ v MIAC [2013] FCAFC 71 (SZGIZ) and considered the applicant’s original claims made in his application for protection submitted [in] May 2010, and the applicant’s most recent claims submitted in his application for protection submitted [in] March 2014, in the light of the complementary protection provision of the Act.  The delegate found that neither the earlier or the current claims fell within the Refugee Convention grounds.  The delegate then considered the applicant’s claims and found there is not a real risk that the applicant will suffer significant harm if he is removed to the PRC for any of the claims he has made.

12. On 5 May 2015, the applicant applied to this Tribunal for a review of the delegate’s decision.  A copy of the delegate’s decision record accompanied the application for review.

    Evidence and argument at Tribunal hearing

13. The applicant appeared before the Tribunal on 30 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.

14. The applicant was represented in relation to the review by his registered migration agent.

15. The applicant began his oral evidence by confirming he was born in [birth year] in for Fujian province. He confirmed he arrived in Australia in February 2010. He said as he was prohibited from leaving his country because he was on bail, he had to use someone else’s passport to leave. The applicant claimed he used two passports, one of which was genuine and the other was not genuine. The Tribunal asked him how he would have been able to obtain two passports, he told the Tribunal he bribed [someone]. He said in China that is the way to get things done. He confirmed his current genuine passport was issued [in] 2009 and is valid until [2019]. He confirmed this passport was issued to replace an earlier passport. The Tribunal observed that the applicant had obtained a visa to enter [Country 1] from [January] 2010 to [April] 2010. It invited the applicant to comment on this. He said he was planning a holiday to [Country 1] but then cancelled that travel.

16. When asked why he believes he will suffer significant harm if returns to China, he said the [stall] he operated was [destroyed].  He said the lease was still current at the time but the developer wanted to develop the property into a housing estate.  He said the developer’s name was [company name].  The applicant said the lease expired in 2013.  He said he was asked to relocate but he needed a [particular amenity].  He said, at the beginning of the dispute, the property developer sent people to talk to him to persuade him to move out. However, the compensation was too low. He said he had borrowed money from friends but he was only offered [a particular amount] by way of compensation.  He said he did not accept that offer so persons engaged by the property developer moved in and forced him out in mid-2008.  He said he reported this to the police but the police told him he was disturbing the social order.

17. In respect of his claim as to having been on bail, the applicant said this was due to a different matter. He said that when his market was [destroyed], he started working for a [company]. He said a developer failed to pay him the compensation and he couldn’t take it anymore.  He said he took some of his workers to the developer’s office to protest about the situation. He said the police turned up and detained him, and that during this detention the police told him he was about to be sentenced for a minimum of three years imprisonment. The applicant confirmed, however, the police released him.  When asked to explain how that came about, he said his wife borrowed money to pay the [police] and they released him saying he was released due to his health.  He said the police claimed the money they received was bail but he thinks they accepted it as a bribe.  When asked what the charge was that was to be laid against him and which would result in three years imprisonment, the applicant said the charge had to do with organising people for public disorder and public brawling.  He said he subsequently made some pamphlets and distributed them complaining about his mistreatment by the property developer.

18. The Tribunal invited the applicant to make comment on any respect of the decision of the Refugee Review Tribunal (RRT) which affirmed the decision of the delegate and which he considered relevant.  The applicant said that he did not obtain an interpreter to explain the RRT decision to him.

19. The Tribunal asked the applicant why he would fear harm now after all the years that have passed since the claimed incidents.  He said, firstly, he owes people money which he is unable to repay.  Second, a friend works for the police and told him that his file is still active.  The Tribunal asked why he owes people money.  He said he owes [an amount] and this came about because he would find workers to work but the developer within whom he subcontracted did not pay him so he was unable to pay the workers.  The Tribunal asked him whether he had made any effort to repay this money to the workers since he has been in Australia.  He said he tried to, however, he has two children and also aged parents to support.  When asked if he had worked in Australia, he said he had worked doing cash jobs.  He said he also owes friends in Australia [an amount].

20. The Tribunal asked the applicant why he would not be able to move to some other part of China if he feared returning to his home province.  He replied by saying if one’s name is on the list, then they can get you anywhere in China. He said his wife has a friend working for the police and they paid her some money to get some information.  The Tribunal asked the applicant what evidence he had of this and why it should accept his evidence as truthful when, for example, he had used fraudulent documents in the form of passport.  He responded that he did not want to use a fraudulent passport but he would not have been able to leave China otherwise.

21. The Tribunal asked him why his claims appear to have changed from his first protection application made in 2010.  He said the main reason he fled was the problem with the developer and the problem associated with employing the subcontractors.  He said his former migration agent who he engaged to prepare his first protection application told him he should only put one reason in his application. 

22. The Tribunal asked the applicant how he was able to operate a subcontracting business and also operated a [market].  He said he was just an intermediary in respect of the subcontracting.  When asked what experience he had to operate a sub contracting business, he said that at the time there was a lot of development going on and contractors were eager to find labour and he knew people who could work.  He said he would take [a percentage] of the value of the contract.

23. When asked who would harm him and why if he returned to China, the applicant said the police would lock him up because he was on bail and left China.  The Tribunal asked the applicant why he believes he is owed protection from going to prison as a result of breaching a condition of bail, or for otherwise failing to comply with the law in his country.  He said he did not break the law in China.  When asked why he had not appealed his claimed conviction or sentence in China, he said he was not given a chance to do so.

24. He said he misses his home but his wife has told him his name is still on the police wanted list. He said he has not seen his son for six years.

25. The Tribunal asked the applicant whether he feared being harmed by his former workers.  He said his workers would not harm him because they would expect him to pay the money he owes them.  He confirmed that they would not harm him.  The Tribunal asked the applicant whether he considers he is owed protection as a result of his debts.  He replied that the developer colluded with the police, and when he went to the developer’s office to ask for his money he went with workers who carried banners.  He said the developer used security personnel to disperse him and his workers from the office.  He said they then reported this mistreatment to the police but the police did not investigate.

26. The Tribunal asked the applicant why he appears to have failed to take court action against the developer to recover the money he claims is owed to him.  He said he tried to do that and went to the labour bureau and was “kicked around like a ball”.  He said he didn’t have money to employ a lawyer.  He said he was jailed in [a month in] 2009.  When asked what happened when he was released, he said he tried to appeal but there was no response.  He said his family told him to go away because they were worried that he would be locked up again.  He said his wife [required support] at the time, but the police told him he could be locked up.  He said during this time he tried to recuperate at his home.

27. The Tribunal asked the applicant what he did from [a month in] 2009 when he was released from prison until the time he left China to come to Australia.  He said he took a [vehicle] to Guangzhou in November 2009.  He said he remained there for one month because he was unable to get out of the country using his own passport so he had to wait until he was able to obtain another passport. 

28. The applicant told the Tribunal that he is still married to his wife and they have a daughter and son.  He said his wife works in [a business].

29. When asked what he had been doing with his time during the three years from April 2011 until March 2014, the applicant said he was hiding in Australia and working casually.  He said he was worried that he would be deported if he kept appealing.  He told the Tribunal that during this time he had heard that he would be able to apply again for a protection visa and so he approached the Department which led to the application which is currently under review.

30. The Tribunal asked the applicant to explain what he meant by his statement that it was unjust because he was not paid.  He said the person who failed to pay him did not suffer any consequences, and it was unjust because he, that is the applicant, was put in jail.  He said he also distributed pamphlets and painted words on a banner. He said the banner said that the government and the developer colluded.  He put it that if there was no collusion he would expect the developer would have gotten into trouble.  He said he was charged with public order disturbance and public brawling.

31. The Tribunal asked the applicant to explain why he considers the authorities would want to harm him now. He said that he had not appeared before a court in China but he had signed a form which was a confession.  He said he was beaten and forced to sign the confession.

32. The Tribunal asked the applicant what he meant by his claim that he fears harm because of his involvement in a failed business venture. The applicant said the thing he fears is being mistreated by the police.  The Tribunal again asked the applicant whether he fears harm for reasons of his failed business venture.  He responded saying that he could go to work and pay back his debts, but the police won’t let him.

33. The applicant told the Tribunal that during the three years from April 2011 to March 2014, he lived in [a particular Australian state] and was doing different sorts of work.  He said he continued to be worried that he might be detained but he feared returning to China.  He said he was not able to send any money back to his family because he only got casual jobs.  He said he worked as [various occupations].

34. The Tribunal asked the applicant whether he believes the Chinese authorities know he is in Australia.  He said they have not been in contact with him but they visited his house around [a particular] time.  He said that they also visited his house shortly after he came to Australia.  The Tribunal asked the applicant how he explained the significant time gap, that is a visit by the police shortly after he came to Australia in 2010, but then only a visit again [in] 2016.  The applicant then said that every year they would visit and they would talk to his parents and his wife and they would say to them that he should go back and turn himself in.

35. The Tribunal put it to the applicant that country information indicates that police protection appears available to protect people who owe money.  It invited the applicant to respond to this information.  The applicant said he agreed that if one owes a debt and there is a risk of harm from one’s creditor then the police may protect the person owing the debt.

36. The Tribunal put it to the applicant that country information indicates the existence of a system of compensation in China in the case where property has been resumed for public purposes. The Tribunal put it to the applicant that while he might not be satisfied with the quantum of the compensation, if that was what was determined or dictated in the applicable law, then it may not accept that this amounted to significant harm.  The applicant said that according to his lease and the equipment, he should have received [a particular amount], however, he was paid only [a significantly smaller amount].

37. The Tribunal put it to the applicant that country information indicates fraudulent documents are prevalent in China and there is a high degree of corruption but that efforts are being made to clean this up.  He replied that China is so big that even if there is not corruption at the top of the governing regime, corruption still exists at the lower and local levels.

38. He concluded his evidence by saying he told a lot of lies to get out of China but it is unsafe for him to return.  He said he fears if harm befalls him there is no one to look after his family and parents.  He said he was treated unfairly and that is why he made up the pamphlets and the banner and that he had tried to appeal to the local authorities who got scared and so they tried to treat him as a criminal.

39. The Tribunal asked the applicant whether he wanted to make any comment in respect of his illegal departure from China, that is using a fraudulent passport, and that upon return to China in such circumstances country information indicates that he is likely to be fined and possibly face some detention.  The applicant said he would accept it if he was fined for using fraudulent passport, but he is concerned about the earlier two charges of disrupting public order and public brawling and fears that he may be sentenced to 3 to 7 years' imprisonment. The applicant repeated that the shift in his focus from his original claim of owing money, to focus now of fearing harm from police is due to the fact that after being in Australia for six years the people he owed money to have given up expecting to be repaid.

40. The Tribunal asked the applicant whether he had any documents to prove any of his claims. He said he gave a document to the Department indicating that he was on bail for medical reasons.  When asked how he obtained that document, he said that someone from his home town brought it back from China and gave it to him.

    Independent country information

41. The Department of Foreign Affairs and Trade (DFAT) Country Report – People’s Republic of China 3 March 2015 states:

    Protesters/petitioners

    3.20 It is estimated there are between 150,000 and 180,000 popular protests every year; the vast majority of which concern: land disputes; housing problems; industrial, environmental, and labour matters; government corruption; taxation; and other economic and social grievances. Others are provoked by accidents or related to personal petitions, administrative litigation, and other legal processes. According to Duihua, detentions took place in 25 per cent of mass protests documented in 2013.

    3.21 Despite recent reforms leading to improved legal protections for property ownership and compensation for expropriated land, protests and petitions related to land seizures by officials and the conduct of developers remain common in China. According to the State Bureau of Letters and Calls (the national department responsible for local petitioning offices), an estimated four million disputes resulting from expropriated land and property demolitions occur every year. DFAT is aware of reports describing aggressive, and sometimes violent, action by private security contractors hired by property developers to manage protesters.

    3.22 China’s Constitution and State Compensation Law enables citizens to seek compensation from the state but the public’s confidence in the judicial system and ability to afford lawsuits is generally low. The Chinese government encourages Chinese citizens to submit complaints through government-controlled websites and local petitioning offices. Although extra-legal “black gaols” (informal, ad hoc, detention facilities set up by local authorities) have long been used to contain the rising number of petitioners, the Chinese government denied their existence during its most recent Universal Periodic Review. The government has announced a number of reform measures designed to improve transparency and responsiveness of the petition system. In November 2013, authorities announced plans to abolish a long-held system of ranking provincial authorities according to their ability to limit local petitioners and maintain social stability.

1. The same DFAT report states:

   Treatment of Returnees

   5.14 China is a signatory to the 1951 Refugee Convention but does not have a refugee status determination procedure. The UNHCR, rather than the Chinese government, has the authority to grant refugee status within China. As at January 2014, China had 301,047 (non-Chinese) refugees and 380 (non-Chinese) asylum seekers residing in China. The UNHCR was not able to provide statistics on returned refugees.

   5.15 According to the United States Bureau of Democracy, Human Rights and Labor, the Chinese government arrested and detained individuals who provided food, shelter, transportation, and other assistance to North Koreans in 2013. The Chinese government has repatriated North Korean defectors viewing them as economic migrants.

   Exit and Entry Procedures

   5.16 Chinese law provides for foreign travel, emigration, and repatriation. A number of agencies within the Ministry of Public Security hold responsibility for monitoring entry and exit procedures at Chinese airports, including the Public Security Bureau, the Entry and Exit Authority, and the Frontiers Inspection Bureau. China’s major airports have a centralised system with name matching alert capabilities. Security monitoring capabilities at major airports are comprehensive.

2. In respect to passports, the DFAT 3 March 2015 report states this:

   5.22 According to the Passport Law of the People’s Republic of China (2006), ordinary passport applicants are required to apply in person to the Entry-Exit Control Department of the Ministry of Public Security or their designated bureaus where hukou is registered. Applicants must provide their resident identification card, resident household registration book, recent photos and other materials related to the reasons for their application. Approved applications are generally issued within 15 to 30 days. If a passport application is refused, reasons for the refusal must be provided in writing and the applicant is to be informed of their right to apply for administrative reconsideration or to file an administrative lawsuit. Costs of passport processing vary according to location but are generally considered affordable.

   5.23 The items to be registered in an ordinary passport consist of the holder's name, sex, date and place of birth, the date of issue, term of validity and place of issue of the passport and the issuing authority. The term of validity of an ordinary passport varies according to age of the passport holder. Passports are both readable visually and by computer and contain anti-forgery properties. Those who sell or use forged passports can be subject to criminal charges.

   5.24 Authorities can refuse to issue passports for people who are believed “will undermine national security or cause major losses to the interests of the State”. According to the US Congressional-Executive Commission on China, in 2013 an estimated 14 million people were affected by restrictions on foreign travel and acquiring passports, many of them religious and political dissidents, including Uighurs and Tibetans. The government does not publish figures on those who have been denied passports.

   5.25 Uighur and Tibetan applicants are required to obtain approvals from provincial authorities and the applicant’s hometown public security bureau; a process which can take longer than the standard 15 to 30 days. Similarly, Uighur and Tibetan students require approval by university administrators. DFAT is aware of cases where human rights activists, lawyers, Uighurs and Tibetans have had their passports confiscated as punishment for their political activities or in an effort to limit the risk of such individuals causing potential embarrassment to the Chinese government when overseas.

   Prevalence of Fraud

   5.26 DFAT assesses it would be difficult to depart China on a fraudulent passport owing to the sophisticated technology used and the degree to which surveillance by immigration and security agents occurs at China’s major airports. Overt bribery of border protection agents by an ordinary Chinese citizen would be difficult because of sensitivities to corruption, the professional and comparatively well-paid status of the Public Security Ministry, and the high-profile nature of its work. DFAT is aware of fraudulent documents being used in support of visa applications (such as hukou registration, proof of employment, academic transcripts, banking statements and ID cards). DFAT assesses these documents are relatively easy to produce and are commonly used in visa applications. DFAT has been told of the existence of sophisticated syndicates that service call centres set up specifically to provide targeted background stories in support of fraudulent documents used in visa applications.

3. All land in China is publicly owned.[1] Urban land is owned by the state and rural land is owned by village collectives, which distribute land-use rights to households in 30 year ‘household management’ contracts.[2] A Finance Asia[3] overview of Chinese land laws notes that although individuals may privately own property, the state retains ownership of the land itself.[4] As such, the legal framework encompasses the rights of private property ownership (i.e. the buildings and structures) with the state ownership of the land they sit on.

   [1] Ding, C and Lichtenberg, E 2011, ‘Land and Urban Economic Growth in China’, Journal of Regional Science, vol.51, no.2, May, Wiley Periodicals, p.302 <CISD9559B11833>

   [2] Ding, C and Lichtenberg, E 2011, ‘Land and Urban Economic Growth in China’, Journal of Regional Science, vol.51, no.2, May, Wiley Periodicals, p.302 <CISD9559B11833>; ‘China expects new law amendment to upgrade protection of farmers’ land rights’ 2011, Xinhua, 31 December < Accessed 7 October 2014 <CXCB3E63420415>

   [3] A Hong Kong-based publisher of financial magazines founded in 1996. The Finance Asia magazine is published 11 times a year.

   [4] Li, F 2004, ‘China’s Land Law: An Overview’, Finance Asia, 19 August, Habitat International Coalition < Accessed 3 October 2014 <CIS9BE2467659>

4. Under the Chinese Constitution, the Land Administration Law of the People’s Republic of China 1986 (last revised in 2004)[5] and the Property Law of the People’s Republic of China 2007[6], the state, acting in the public interest, may lawfully requisition land owned by collectives.[7] Compensation for land expropriation is enshrined as a constitutional right and a requirement under these laws (hereafter abbreviated to the Land Administration Law and the Property Law, respectively).[8] Each province issues its own implementation regulations based on these national laws.[9]

   [5] Land Administration Law of the People’s Republic of China, promulgated 25 June 1986 (revised 28 August 2004), Asian Legal Information Institute website, art 2 < Accessed 11 June 2014 <CIS28533>

   [6] Also called ‘Real Rights Law’ (物权法). Property Law of the People’s Republic of China 2007 (China), promulgated 16 March 2007 (effective 1 October 2007), National People’s Congress of the Republic of China < Accessed 11 June 2014 <CIS28573>

   [7] Land Administration Law of the People’s Republic of China, promulgated 25 June 1986 (revised 28 August 2004), Asian Legal Information Institute website, art 2 < Accessed 11 June 2014 <CIS28533>; Constitution of the People’s Republic of China 1982 (China), promulgated 4 December 1982 (amended 14 March 2004), National People’s Congress of the People’s Republic of China < Accessed 3 October 2014 <CISD49C2F4533>

   [8] Land Administration Law of the People’s Republic of China, promulgated 25 June 1986 (revised 28 August 2004), Asian Legal Information Institute website, art 2 < Accessed 11 June 2014 <CIS28533>; Constitution of the People’s Republic of China 1982 (China), promulgated 4 December 1982 (amended 14 March 2004), National People’s Congress of the People’s Republic of China < Accessed 3 October 2014 <CISD49C2F4533>; Property Law of the People’s Republic of China (China), promulgated 16 March 2007 (effective 1 October 2007), National People’s Congress of the Republic of China, art 42 < Accessed 11 June 2014 <CIS28573>

   [9] Immigration and Refugee Board of Canada 2010, China: Procedures for land expropriation; whether individuals from Guangdong, Fujian and Liaoning are issued documentation when their land is expropriated; recourse available to and treatment of citizens who oppose land expropriation (2007 – 2010), CHN103402.E, 5 July < Accessed 12 June 2014 <CIS28587>

5. The Chinese constitution allows for the state to expropriate ‘privately’ owned property providing that affected individuals are compensated. Article 13, an outcome of the 2004 revision, states that a citizen’s rights over lawfully obtained property is inviolable, noting that ‘The State, in accordance with law, protects the rights of citizens to private property and to its inheritance.’ These rights, however, are balanced by the power of the state to expropriate, in the public interest, all private property without restriction on location. According to Article 10 of the constitution:

6. The State may, in the public interest and in accordance with law, expropriate or requisition private property for its use and make compensation for the private property expropriated or requisitioned.[10]

   [10] Constitution of the People’s Republic of China 1982 (China), promulgated 4 December 1982 (amended 14 March 2004), National People’s Congress of the People’s Republic of China < Accessed 3 October 2014 <CISD49C2F4533>

7. A March 2013 article by Radio Free Asia quotes analysts who attributed violent conflicts over farmland to the government’s ‘program of relentless urbanization’.[11] A Reuters report from August 2013 states that land seizures across China have been ‘fuelled by soaring prices and the government’s urban expansion drive, resulting in often violent clashes between officials and villagers’.[12] Similarly, an October 2013 article by Radio Free Asia states that land acquisition for development ‘sparks thousands of protests by local communities across China every month, many of which escalate into clashes with police’.[13]

   [11] ‘Clashes Over Land, Mine Pollution in Southwest China’ 2013, Radio Free Asia, 22 March < Accessed 1 October 2014 <CXC28129413409>

   [12] ‘Bulldozer kills girl in China amid land grab dispute: media’ 2013, Reuters, 29 August < 7 October 2014 <CXC28129413431>

   [13] ‘Riot Police Deployed As Thousands Protest Land Grab’ 2013, Radio Free Asia, 21 October 2013 < Accessed 1 October 2014 <CXC28129413410>

8. As stated above, Chinese legislation states that compensation must be paid in relation to the expropriation of land and/or property. Presently this compensation is limited to an amount ‘30 times the average annual output value of the expropriated land calculated on the basis of three years preceding such expropriation’.[14] According to China Daily,[15] this means an amount less than 100 Yuan (approximately AUD$15.44) per square metre.[16] By comparison, the article notes, local governments can sell the same land to developers for 10,000 Yuan (AUD$1,543) per square metre.[17]

   [14] Land Administration Law of the People’s Republic of China, promulgated 25 June 1986 (revised 28 August 2004), Asian Legal Information Institute website, art 47 < Accessed 11 June 2014 <CIS28533>

   [15] According to its website, China Daily, founded on 1 June, 1981, is the largest national English-language newspaper and is targeted at Western mainstream society.

   [16] ‘Land compensation may go up 10 times’ 2012, China Daily, 29 November < Accessed 1 October 2012 <CX0D38E8E19741>

   [17] ‘Land compensation may go up 10 times’ 2012, China Daily, 29 November < Accessed 1 October 2012 <CX0D38E8E19741>

9. Official corruption in land transactions[18] is a problem in virtually all provinces of China.[19] In 2008, China’s National Audit Office examined land deals in 11 major cities and found that corruption was rampant in all locations examined – local governments failed to report revenue made from land deals, rigged bidding processes and regularly cut prices to speed development.[20] Local officials often collude with developers to seize the best plots of land and provide farmers with inadequate compensation.[21] Developers and local government negotiate private arrangements before sites are offered for public auction, allowing developers to lease the land for below market prices.[22]

   [18] Corruption in land transactions includes illegal transfers, illegal housing demolitions, inadequate compensation, rigged auctions, bribery, embezzlement and illegal development of rural land for non‑agricultural uses. Yingqi, C 2010, ‘Officials Illegally Sell Farmers’ Land’, China Daily, 4 November < Accessed 2 October 2014 <CX744258516724>; Lee, J 2009, ‘China’s empty land reform’, The Guardian, 4 July < Accessed 6 June 2014 <CX321613>; Chung, O 2008, ‘China’s land income leaking away’, Asia Times, 13 June < Accessed 1 October 2014 <CXAB8B92D2402>

   [19] Xin, Z 2008, ‘China finds rampant problems in official land deals’, Reuters, 4 June <CXAB8B92D24025>

   [20] Xin, Z 2008, ‘China finds rampant problems in official land deals’, Reuters, 4 June <CXAB8B92D24025>

   [21] Lee, J 2009, ‘China’s empty land reform’, The Guardian, 4 July < Accessed 6 June 2014 <CX321613>

   [22] Chung, O 2008, ‘China’s land income leaking away’, Asia Times, 13 June < Accessed 1 October 2014 <CXAB8B92D2402>; Sito, P 2007, ‘Property deals to come under scrutiny’, South China Morning Post, 5 December <CXE90FC0120167>

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

    Forced relocation because of urban development continued and in some locations increased during the year. Protests over relocation terms or compensation were common, and some protest leaders were prosecuted. In rural areas infrastructure and commercial development projects resulted in the forced relocation of millions of persons.

    Property-related disputes between citizens and government authorities, which often turned violent, were widespread in both urban and rural areas. These disputes frequently stemmed from local officials’ collusion with property developers to pay little or no compensation to displaced residents, combined with a lack of effective government oversight or media scrutiny of local officials’ involvement in property transactions, as well as a lack of legal remedies or other dispute resolution mechanisms for displaced residents.

11. In 2012, Amnesty International reported that ‘People facing eviction enjoy only tenuous protections under Chinese law, and they face significant challenges in asserting their rights’.[23] A 2012 Landesa Rural Development Institute survey of 1,791 farmers across 17 provinces revealed widespread dissatisfaction amongst Chinese farmers with regards to land expropriation.[24] Less than one quarter of those surveyed were satisfied or very satisfied with the process; in comparison, over half were dissatisfied or very dissatisfied.[25]

    [23] Amnesty International 2012, Standing Their Ground, ASA 17/001/2012, October, p.5 < Accessed 11 October 2012 <CIS24185>

    [24] Landesa Rural Development Institute 2012, Insecure Land Rights: the Single Greatest Challenge Facing China’s Sustainable Development and Continued Stability, 26 April, Section 3 < Accessed 3 October 2014 <CIS961F9401917>

    [25] Landesa Rural Development Institute 2012, Insecure Land Rights: the Single Greatest Challenge Facing China’s Sustainable Development and Continued Stability, 26 April, Section 3 < Accessed 3 October 2014 <CIS961F9401917>

12. Sources report that local government authorities use forcible psychiatric detentions and ‘black gaols’ – extra-legal detention facilities established by local and provincial officials – to detain, imprison, and punish petitioners who bring their appeals to Beijing.[26] Petitioners have been detained on charges of disturbing public order or other similar violations listed under several regulations and laws including the Regulations on Letters and Visits 2005,[27] the Law of the People’s Republic of China on Penalties for Administration of Public Security 2005 [28] and the Criminal Law of the People’s Republic of China 1997 (hereafter, Criminal Law)[29]. Disturbing the public order is a broadly defined charge used arbitrarily by the authorities to supress petitioners.[30] The maximum penalty for inciting ‘the masses to resist enforcement of state’s laws or administrative regulations’ is seven years according to Article 278 of the Criminal Law.[31]

    [26] US Department of State 2014, 2013 Country Reports on Human Rights Practices – China, 27 February, Section 1c < Accessed 7 March 2014 <CIS27374>; Human Rights Watch 2009, An Alleyway in Hell: China’s Abusive Black Gaols, 12 November, p.7 12 November < Accessed 16 November 2009 <CIS18021>; Minzner, C 2011, Countries at the Crossroads 2011 – China, 10 November, Freedom House < Accessed 28 November 2011 <CX277317>

    [27] Regulations on Letters and Visits 2005 (China), promulgated 5 January 2005 (effective 1 May 2005), China.org < Accessed 2 October 2014 <CX2E0981331214>

    [28] Law of the People’s Republic of China on Penalties for Administration of Public Security 2005 (China), promulgated 28 August 2005 (effective 1 March 2006), China.org < Accessed 3 October 2014 <CIS9BE2467655>

    [29] Criminal Law of the People’s Republic of China 1997 (China), promulgated 14 March 1997 (effective 1 October 1997), US Congressional-Executive Commission on China website < Accessed 16 January 2007 <CX168961>

    [30] Human Rights in China 2011, Petitioning: The Right to Criticize and Seek Redress, 31 October < Accessed 4 July 2012 <CIS28572>

    [31] Criminal Law of the People’s Republic of China 1997 (China), promulgated 14 March 1997 (effective 1 October 1997), US Congressional-Executive Commission on China website < Accessed 16 January 2007 <CX168961>

    RELEVANT LAW

1. 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.

   Complementary protection criterion

2. 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’).

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

4. 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

5. 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

6. The Tribunal accepts that 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 he or she satisfies all of the required statutory elements. Section 5AAA of the Act provides it is the responsibility of the non-citizen to specify all particulars of his or her claim to be a person in respect of whom Australia has protection obligations, and to provide sufficient evidence to establish the claim. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, 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 Tribunal to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

7. In determining whether an applicant is entitled to protection in Australia, the Tribunal must first make findings of fact on the applicant’s claims.  This may involve an assessment of the applicant’s credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.  

8. The Tribunal is not required to accept uncritically any or all allegations made by an applicant.  In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established.  Nor is the Tribunal 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). On the other hand, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant, but is 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

9. By reference to the principle in the case of SZGIZ, the issue in this case is whether the applicant satisfies the complementary protection provision in s.36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

10. Having regard to the delegate’s decision record which indicates the applicant has submitted a copy of his genuine passport issued to him by the People’s Republic of China, the Tribunal finds the applicant is a national of the PRC. The Tribunal therefore finds the PRC is the ‘receiving country’ for the purposes of s.36(2)(aa) of the Act.

11. There is no evidence before the Tribunal to suggest the applicant has a right to enter or reside in the third country in relation to the provision in s.36(3) of the Act. Therefor the Tribunal finds that there is no evidence to suggest the applicant has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national (s.36(3)).

    Assessment of protection claims

12. The applicant claimed that he fears returning to the PRC because he fears the police continue to have an interest in him because he has found out from a friend that his police file is still “open”.  He also appeared to make claims initially that he feared harm from persons to whom he claims to owe money, in particular persons he claimed to have found work for as subcontractors.  However the applicant the conceded at the hearing that he does not fear such persons would cause him significant harm.

13. The Tribunal does not find applicant’s claims convincing and is not satisfied he is a witness of truth. The Tribunal formed the view, after carefully considering his oral evidence, that he has fabricated or concocted his current claims.  It finds, as put to the applicant at the hearing, that his claims have changed substantially since he originally lodged an application for protection in May 2010.  While the Tribunal accepts that sometimes changes in claims may occur legitimately, however, it is not satisfied that this is the case in the present circumstances.  For example, and as put to the applicant at the hearing, his original claims relate to a claimed dispute with a contracting company for whom he claims to have provided labour to on a subcontracting basis.  He claimed, and still maintains as evidenced by his statements at the hearing before this Tribunal, that the development company failed to pay him so that in turn he was unable to pay the workers he claimed he had provided to the company.  He claimed that he organised a protest at the office of the allegedly defaulting company and that the police became involved and it ended with him being arrested and prosecuted for public order disturbance and public brawling.  These claims were not found credible by the delegate, and nor by the Refugee Review Tribunal who affirmed the refusal of the delegate, however, it is for this Tribunal to make its own findings on these matters in this review.

14. The applicant’s current application for protection, in respect of which the applicant was able  to make a valid application results from the decision in SZGIZ.  The current application and claims refer to alleged persecution and mistreatment of the applicant by the Chinese police because he claims he was detained by the police on 3 occasions because he persisted in  claiming rights to [a] market stall for which he claims to have had a valid lease.  He claims that the authorities colluded with developers to terminate his lease so as to redevelop a site where he operated [a] market.  He claims that he was not fairly compensated, and that if he returns to the PRC he will continue to claim his right for compensation as a result of the market being used for the property development. 

15. The inconsistency between his original (2010) claims for protection (the subcontracting losses and claimed problems with the police) and his current (2014) claims ([destruction] of [the] market and failure to receive fair compensation) was put to the applicant at the Tribunal hearing.  The applicant explained the apparent silence in the first application on the question of the [market] dispute by saying that the main reason he fled China was the problem with the defaulting developer for whom he claimed to have provided subcontractor workers.  He told the Tribunal that his former migration agent who he had engaged to prepare his first protection application told him he should only put one reason in his application. The Tribunal finds the applicant’s explanation of this inconsistency unsatisfactory and lacking credibility.  It considers that if the applicant did in fact lease a [market] from which he was evicted, or which had been [destroyed] in the circumstances he described, he would have put those claims forward in his original, application.  The Tribunal did not find his claim that his former agent told the applicant to limit his protection claims to only one reason to be credible.    

16. The Tribunal considered the question of the applicant holding two passports.  The Tribunal accepts the delegate’s finding in the decision record that both passports are genuine, however, one has been fraudulently altered.  The applicant claimed that he had to use the passport which was fraudulently altered to be able to leave his country because he was on bail.  The Tribunal accepts country information suggests that it is possible to obtain fraudulently altered passports in China, as in some other countries.  However, it does not accept in the circumstances of this case that the use of the fraudulently altered passport by the applicant to depart China adds credibility to his claims for protection.  The Tribunal considers that the change of his claims from his first application to the claims made in his current application are so significant and so inconsistent that his credibility his undermined most significantly.  

17. The Tribunal considered the applicant’s evidence and the detail with which he described the claimed [market] dispute.  In addition to the Tribunal’s concern over the failure of the applicant to refer to this dispute in his original claims, the Tribunal formed the view that the applicant had rehearsed the details of his present claims and it was not convinced he spoke of events which he had actually experienced.  The Tribunal notes that at the hearing the applicant did not abandon his original claims dealing with the sub-contracting default but added the [market] dispute to these. 

18. Having regard to all the evidence before the Tribunal, it is not satisfied the applicant faces a real risk of significant harm at the hands of people to whom the applicant claims he may owe money.  Further, and in any event, the Tribunal considers the relevant country information indicates, as was agreed by the applicant at the hearing, that the authorities in the PRC will protect a person from significant harm that might be directed towards the applicant from persons to whom he might owe money.   

19. The Tribunal considered the applicant’s claim where he said that he was given information from a friend who claimed that his file is still active with the police.  As the Tribunal does not accept the applicant’s claim that he has been detained by the police in respect of any claimed dispute, it does not accept that he has a relevant file in this respect or that it is still open.  As the Tribunal does not accept the applicant’s claim as to the existence of the claimed disputes, it places little weight on the document he provided the Department and to which he referred to at the hearing where he claimed the document evidences that he was on bail for medical reasons. 

20. Having regard to the Tribunal’s assessment of the applicant’s claims and evidence, it does not accept that the police, or any other authority in PRC, have an ongoing interest in the applicant or that he would face significant harm for the reasons he claims should he be removed to the PRC.  Nor, for similar reasons, does the Tribunal accept the applicant’s name is on any police wanted list as is claimed by the applicant because it does not accept his claim that he was detained as a result of the claimed protest against the contractor who he claims failed to pay him, or against anyone else.  

21. The Tribunal considered the applicant’s evidence in relation to its questioning of why he appeared to have failed to take court action against the developer to recover the money he claims is owed to him.  The applicant claimed he went to a “labour bureau” and was “kicked around like a ball” and he did not have money to employ a lawyer.  The Tribunal found the applicant’s response to this question in particular appeared vague and lacking credibility.  Based on the inconsistency of the applicant’s claims as between his first application for protection and his current application, as was put to the applicant at the hearing, and having regard to his responses, the Tribunal found the applicant is not to be a reliable or credible witness.  It does not accept his claim that he was jailed in [2009], or that he tried to appeal, or that he was put on bail.  It follows that the Tribunal does not accept the applicant distributed pamphlets or painted words on a banner that were critical of the government and the developer, or that he alleged the developer and government have colluded.  On the evidence before it, the Tribunal is not satisfied that the applicant was charged as he claims with public order disturbance and public brawling.  Nor does it accept the applicant signed a form which was a confession, or that he was beaten and forced to sign such a form.

22. The Tribunal considered the applicant’s claim where he said the police visited his house to inquire in relation to his whereabouts shortly after he came to Australia, but that the next time he claimed they visited his parents was [in] 2016.  When the gap of six years between claimed police visits was put to him at the hearing, he then said that police visited every year and they would talk to his parents and to his wife and tell them the applicant should go back and turn himself in.  The Tribunal found the inconsistency in his evidence in relation to the frequency of the claimed police visits, and then his attempt to explain the inconsistency, undermines the applicant’s credibility and further weakens his claims.  

23. The Tribunal considered the evidence indicating that the applicant departed the PRC using a false passport.  As put to the applicant at the hearing, the Tribunal assesses that in such circumstances relevant country information indicates that upon return to China he is likely to be fined and may face a period of detention, although the Tribunal notes there does not seem to be agreement on whether the detention penalty is applied[32].  The applicant said he would accept it if he was fined for using a fraudulent passport, but he is concerned about the earlier two charges of disrupting public order and public brawling and fears that he may be sentenced to 3 to 7 years' imprisonment. As the Tribunal does not accept that the applicant was charged with those offences, or that he is on bail, or that he would be convicted or sentenced to 3 to 7 years imprisonment, it does not find the applicant faces a real risk of significant harm in these circumstances.  Further, if the applicant is prosecuted and penalised for illegal departure from the PRC, the Tribunal finds there is no evidence before it to suggest the relevant departure law is being applied in a discriminatory way, but rather appears to be law which applies to all Chinese nationals.  Further, the Tribunal finds no evidence to suggest China’s departure laws are used to target particular individual persons for a Convention reason, or otherwise.  The Tribunal accepts country information[33] indicates that detainees may be held in overcrowded and unpleasant conditions, however, it does not accept that such conditions give rise to ‘significant harm’ as that term is defined in the Act.    

    [32] RRT Country Advice – China – CHN36460 13 April 2010

    [33] See para 5.9 and 5.10, DFAT Country Report, People’s Republic of China, 3 March 2015

24. For these reasons, the Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, the PRC in this case, there is a real risk that he will suffer significant harm. The Tribunal therefore finds the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

25. 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

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

    Tony Caravella
    Member