1506592 (Refugee)

[2016] AATA 4782

1506592 (Refugee) [2016] AATA 4782 (7 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1506592

COUNTRY OF REFERENCE:                  China

MEMBER:B. Mericourt

DATE:7 December 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 07 December 2016 at 1:44pm

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.

CATCHWORDS
Refugee – Protection visa – China – Inadequate compensation – Demolition of factory – Petition to local government – Detention – Pressure to sign agreement for amount offered – Threats of harm – Future petitioning by applicant

LEGISLATION
Migration Act 1958, s.36(2)(a)-(c)
Migration Regulations 1994, Schedule 2

CASES
MIEA v Guo

(1997) 191 CLR 559

Nagalingam v MILGEA

(1992) 38 FCR 191

Prasad v MIEA

(1985) 6 FCR 155

SECONDARY MATERIALS

Department of Foreign Affairs (DFAT) Country Report People’s Republic of China,   3 March 2015

Department of Immigration and Border Protection (DIBP) Background Paper China: Land Expropriation and Compensation, October 2014

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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of China, applied for the visas [in] June 2014 and the delegate refused to grant the visas [in] April 2015.

3. The primary applicant appeared before the Tribunal on 7 December 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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.

   BACKGROUND

9. The primary applicant was born in [year] in [County 1], Hebei Province, China. She is married and her spouse is the secondary applicant. He was born in [year] in [County 1], Hebei Province, China. The applicants have [a child] who resides with the primary applicant’s parents in China.

10. [In] March 2014 the primary applicant was granted a student [visa] to join her spouse who was studying in Australia. She entered Australia [in] March 2014 and she lodged an application for protection [in] June 2014.

11. The secondary applicant was granted a student [visa] [in] October 2013 and entered Australia [in] November 2013. His visa ceased [in] March 2016.

    Claims made in the primary applicant’s written application for protection dated [in] June 2014

12. The primary applicant stated that she left China because of conflict with local government authorities and she had been persecuted by them. [In] December 2013 the Housing Demolition Office of [County 1] notified her father-in-law that he had to relocate his factory as the land on which his factory was located was being redeveloped. They received the written notice [in] January 2014. Her father-in-law was only offered compensation equivalent to that offered for residential land. However, the factory is on commercial land and they should have received considerably more compensation according to market prices. As the family thought compensation was not reasonable they refused to sign the contract and the government bought pressure to bear on them. They tried to present a petition to local government. Later with other people she and her father-in-law planned to visit Beijing to lodge a petition [in] January 2014. They were stopped by men in several vehicles, who took the petition letter and warned them not to go against the government. She and her father-in-law were detained overnight and released the next morning. They did not sign the agreement “even though they went through all sorts of persecution”. The government then cut the supply of water and electricity to the factory which could no longer continue production and suffered huge losses. The primary applicant’s father-in-law received threatening phone calls from people who indicated that they knew what [school] his [grandchild] was attending. The family live in fear and the primary applicant is frightened to return to China because she is worried the persecution will happen again.

    Claims made at an interview with a delegate [in] March 2015

13. The Tribunal has listened to the recording of the interview and is satisfied that the summary of interview in the decision record dated [in] April 2015 is accurate.

14. The primary applicant initially told the delegate that she had come to Australia to join her husband who had been studying here for five months and there were no other reasons for her coming to Australia. When the delegate put to her that she had stated she came to Australia as a result of conflict with local authorities, she stated this occurred after her husband had left for Australia and she would have come to Australia whether the incident happened or not. She did not apply for protection soon after arriving in Australia because she was not familiar with Australian law and her agent initially said they should stay on her husband’s student visa but he could not concentrate on his studies. The primary applicant reiterated her claims as outlined above in her written application, except she stated that they were stopped from serving the petition [in] February 2014.The petition was confiscated before they reached Beijing and they were detained overnight with two other people in a detention centre. She didn’t know exactly where the detention centre was located.  They told her to persuade her father-in-law to sign the petition. She was not harmed. They did not sign the petition and were released the next day. They did not petition again. The water and electricity were cut off for about 3 months to force them to sign the agreement. Demolition of the factory commenced in September/October 2014 after the primary applicant had arrived in Australia. She said that her father-in-law did not petition the government again and compensation of RMB[amount] was paid to him. Her mother-in-law suffered a [medical event] due to the stress. The primary applicant stated that if she returned to China she would accompany her father-in-law and attempt to appeal about the demolition of the factory.

15. The applicant stated she did not wish to return to China as she feared she would be persecuted as she would continue to protest about the demolition of her family’s factory in support of her father-in-law.

16. The applicant provided the Department with copies of the following documents;

    ·a business license [for the factory] – Manager [Mr A], stating it was established [in] 2011;

    ·a tax registration certificate for [the factory] dated [in] September 2010;

    ·a translated copy of a “House demolition notice“ dated [in] January 2014

    ·a translated copy of a House Demolition Compensation Agreement for [Mr A]’s household for a compensation payment of [amount]yuan dated [in] January 2014;

    ·a translated copy of a petition to [a Ministry], dated [in] February 2014, titled “[title deleted]”, signed by [number] parties including the primary applicant, her father-in-law, [Mr A] and [number] others; and

    ·a translated copy of a document titled “[title deleted]” dated [in] March 2014 stating that the applicant’s father-in-law, [Mr A] had attempted to petition, bypassing local authorities in January 2014 and he was sentenced to [number] days detention in [a] detention centre.

    Department’s decision dated [in] April 2015

17. The delegate accepted that the primary applicant’s father-in-law’s factory had been demolished and he had been paid compensation and that the matter had been settled in 2014. However, he was not satisfied that the primary applicant’s evidence was credible about the incident when she was detained when she claimed to be travelling to Beijing to petition the government. He did not accept that the primary applicant was a director in the family business. He did not accept that the applicants would petition the Chinese government in the future and found that there was no real risk or real chance that the applicants would suffer serious or significant harm if they returned to China now or in the foreseeable future.

    Claims made at the Tribunal hearing on 7 December 2016

18. The Tribunal discussed the applicants’ backgrounds, current circumstances and claims for protection which are summarised as follows;

19. The applicants are currently living in a house with one other [person]. The applicants work on a casual basis in a factory. They only earn enough to support themselves and do not send any money back to China for their [child]. She speaks to her parents and [child] every day via the internet. Her husband speaks to his parents regularly also.

20. The applicant said that she came to Australia to accompany her husband while he studied about 4 – 5 months after he had arrived.

21. Her husband came to Australia to study [a course]. He was a student for about six months. He did not have the funds to continue his study after the events discussed below happened in China.

22. The applicant said that she does not want to return to China due to events that happened before she left and “the shadow” is still there. Her father-in-law’s factory was demolished and the compensation was very unreasonable as it was based on residential not commercial rates. The applicant said that twice they tried to petition local authorities but never successfully reached the leaders. Whenever her father-in-law took the car out he would receive a phone call from someone he knew asking where he was going. The calls were from someone who had been asking them to “sign the paper”. She believes that they were being monitored.

23. They were told to move out of the factory premises [in] February 2014. [In] February 2014 the primary applicant and her father-in-law and another businessman and his wife went to Beijing to petition. They turned off their mobiles so they could not be contacted as they had been previously. The applicant drove the car. After 2-3 hours of driving when they were about to exit the highway two cars stopped them. [Number] men were in the cars. They did not show their IDs, and in a threatening manner told them to get out of the car and get into their cars. They searched them and then the car for the petition letter. When they found it they took them all to a temporary management division of the police station. They were detained overnight. During this period people tried to persuade them to sign the compensation agreement in an aggressive manner. They were not physically harmed. They asked the applicant to persuade her father-in-law to sign as he was elderly (in his [age]) and his mind was not clear. The four of them were persistent about not signing. They were released the next day and taken back to their car. They returned home. After a few days they received a written notice warning them that they were disturbing the social order and telling them to sign the agreement. They also received a notice of a [number] day detention for her father-in-law. He avoided this by paying the authorities some money (a bribe) for which they did not receive a receipt.

24. When the primary applicant received her Australian visa in March 2014 her father-in-law suggested that she leave as they cut off the water and electricity periodically to make them sign the agreement. After she left China they cut off services permanently. The factory was forced to stop operations and it was demolished at the end of August or early September 2014. Before the demolition her [child] was threatened. The Tribunal asked the applicant how [the child] was threatened and the applicant said that her father-in-law received a phone call saying that they knew where the applicant’s [child] went to [school], implying a threat.

25. The primary applicant’s father-in-law received a compensation payment of RMB [amount]. Early this year he renegotiated the settlement with the developer. The developer agreed to give them a unit downstairs to be used as a shop, although he has not yet received this. The overall amount is much less then they should have received for a commercial property.

26. The main consideration for the applicant was the psychological pressure to which the family were subjected. Her mother-in-law was very stressed and was hospitalised after a [medical event]. The factory was her father-in-law’s ‘life’. They would not have signed the agreement so easily except for her mother-in-law’s health condition. As her mother-in-law was sick her father-in-law has been unable to establish a new factory. He also has not received enough money from the compensation to establish a new factory. They are supporting themselves with their savings.

27. Her father-in-law has not tried to petition the authorities again, particularly because the applicant’s [child] is living with them.

28. The Tribunal asked the applicant what harm she feared if she returned to China given the settlement has been agreed and the payment made.

29. The applicant said that nothing would happen if she just “let go”. However, if she continued to petition she feared she would suffer harm. She said she would continue to petition. The Tribunal asked if she thought she would be successful. She said that she could only try her best and not expect a result. The Tribunal asked her if she would petition if she believed her [child] would be threatened. She said she would. The Tribunal put to the applicant that it did not seem likely that she would petition if she returned to China as her father-in-law (who actually owned the factory) has not petitioned since [date] February 2014 - nearly three years ago; a settlement has been reached; and she believes she would have no success if she petitioned. Yet she would still do it even though she believes her [child] may be harmed.  The applicant repeated that she believed the settlement was unfair and she would petition.

30. The Tribunal asked the applicant about her husband’s views on the matter as he is also applying for protection. The applicant said that he would support her and they would face everything together. The Tribunal asked why he did not come to the hearing to give evidence, particularly regarding what he thought would happen if he returned to China. She said that events happened when he was in Australia and it was extremely bitter for him and he did not want to be reminded of it.

31. The applicant said that she has been in Australia for two years and likes it here. She wants to be given the opportunity “to choose” to remain.

    Relevant country information

32. The Tribunal has had regard to country information which indicates that land appropriations for development are not uncommon in China and people are frequently offered inadequate or no compensation. Petitioners sometimes face strong resistance from authorities and some have been subjected to harm.[1]

    [1] Department of Foreign Affairs (DFAT) Country Report People’s Republic of China,   3 March 2015;

    Department of Immigration and Border Protection (DIBP) Background Paper China: Land Expropriation and Compensation, October 2014

    FINDINGS AND REASONS

33. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of the applicant’s claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.

    Requirement that the decision-maker be ‘satisfied’

34. 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. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

    Nationality

35. On the basis of the applicants’ People’s Republic of China (PRC) passports provided to the Department, the Tribunal finds that the applicants are citizen of the People’s Republic of China. There is nothing in the evidence before the Tribunal to suggest that the applicants have a right to enter and reside in any country other than China. Therefore the Tribunal finds that the applicants are not excluded from Australia’s protection by subsection 36(3) of the Act.  As the Tribunal has found that the applicants are nationals of China, the Tribunal also finds that China is the applicants’ “receiving country” for the purposes of s.36(2)(aa).

    Claims related to appropriation of the primary applicant’s father-in-law’s factory, the demolition of the factory, inadequate payment of compensation and petitioning authorities

1. The primary applicant has been largely consistent about events in China and the dates the incidents occurred to both the Department and the Tribunal. Her evidence about these events is also largely consistent with the documents that she has provided to the Department. The Tribunal therefore accepts the following:

   ·the primary applicant’s father-in-law owned a [factory] which processed and sold [product];

   ·[in] January 2014, the primary applicant’s father-in-law was notified in writing that his factory was to be demolished and the land developed by [a company]. They were to move the “house” by [date] February 2014;

   ·the primary applicant’s father-in-law was offered an amount of compensation of RMB[amount] which was calculated using residential rates rather than commercial rates and which he consequently considered to be inadequate;

   ·the primary applicant’s father-in-law attempted to negotiate with or petition local authorities twice in January 2014 unsuccessfully;

   ·the primary applicant and her father-in-law and two other people attempted to travel to Beijing to lodge a petition [in] February 2014. They were intercepted and taken to a police detention centre where they were verbally pressured to sign the agreement for the amount of compensation offered. They were not physically harmed in any way. They were not charged with an offence and they were released the following day;

   ·the authorities cut off services to the factory intermittently in an attempt to pressure the primary applicant’s father-in-law to sign the agreement;

   ·the primary applicant departed China [in] March 2014;

   ·the factory was demolished 5-6 months after she departed China;

   ·the primary applicant’s father-in-law signed the agreement for the amount of compensation originally offered and he has received the payment of RMB[amount];

   ·in January 2016 the primary applicant’s father-in-law negotiated further compensation from the developer, that is, a unit which can be used as a shop. He has not yet taken possession of the unit;

   ·the primary applicant’s father-in-law has not attempted to petition the authorities since the incident in February 2014. He was not charged with any offences and was not detained after paying a bribe to authorities.

2. Given the vagueness of the primary applicant’s evidence relating to implied threats made about her [child]’s well-being if her father-in-law continued to petition and her evidence that she was not harmed herself, the Tribunal is not satisfied that any threats of harm have been made to primary applicant, her spouse, her [child] or her parents-in-law during the above events or since the above events occurred.

3. Based on her evidence that her father-in-law has not petitioned the authorities since she departed China in March 2014, he has received his compensation payment, albeit an inadequate amount, renegotiated with the developer for additional compensation in the form of a unit and the primary applicant herself believes they have no chance of successfully obtaining more compensation, the Tribunal is not satisfied that the applicant would engage in any protests or petitioning about the demolition of her father-in-law’s factory or inadequate payment of compensation if she were to return to China now or in the foreseeable future.

   Secondary applicant

4. The secondary applicant did not appear before the Tribunal. He has made no claims of his own. He is claiming protection as a member of the family unit of the primary applicant. The Tribunal is satisfied that he is the primary applicant’s spouse.

5. The Tribunal finds that at the time the applicants departed China they were not of adverse interest to the authorities and that they have not engaged in any conduct in Australia which would bring them to the adverse attention of authorities in China.

6. The Tribunal places some weight on the length of time (2½  months) between the primary applicant’s arrival in Australia [in] March 2014 and the dates she and her spouse lodged applications for protection [in] June 2014. The primary applicant told both the Department and the Tribunal that the main reason she came to Australia was to accompany her husband while he was studying. She has come to like living in Australia. The Tribunal considers that if the primary applicant and her spouse genuinely feared returning to China they would have taken steps to make an application as soon as possible after her arrival.

7. Based on the above findings both individually and cumulatively, the Tribunal is not satisfied that there is a real chance that the applicants would face serious harm (having regard to the examples provided in s.91R(2) of the Act)  for reasons of their race, religion, nationality, political opinion or membership of a particular social group, either now or in the reasonably foreseeable future, if they return to China.  Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason.

8. The Tribunal has also considered the alternative criteria in regards to complementary protection and has had regard to the ‘PAM3 Refugee and Humanitarian - Complementary Protection Guidelines’.  For the same reasons as set out above, on the evidence before it, the Tribunal is unable to satisfy itself in this regard.  Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to China, there is a real risk that they will suffer significant harm (having regard to the exhaustive definitions in s.36(2A) and s.5(1) of the Act). 

   CONCLUSION

9. For the reasons given above the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

   DECISION

10. The Tribunal affirms the decision not to grant the applicants Protection visas.

    B. Mericourt
    Member