1507684 (Refugee)

[2016] AATA 4563

1507684 (Refugee) [2016] AATA 4563 (13 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1507684

COUNTRY OF REFERENCE:                  China

MEMBER:Judith Troeth

DATE:13 October 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 13 October 2016 at 2:52pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of China applied for the visa [in]October 2013 and the delegate refused to grant the visa [in] May 2015. Based on the copy of her passport which was presented at hearing the Tribunal finds that the applicant is a citizen of China and has assessed her claims against that country in relation to ss.36(2)(a) and 36(2)(aa) of the Act. The Tribunal is satisfied that China is the country of reference for the purpose of assessing protection obligations under the Refugees Convention. The Tribunal is also satisfied that China is the applicant’s receiving country as defined in section 5 of the Migration Act for the purpose of assessing the complementary protection criterion.

3. The applicant appeared before the Tribunal on 22 September 2016 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A]and [Ms B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Uighur and English languages.

4. The applicant was represented in relation to the review by her registered migration agent, [name], who attended the hearing.

   RELEVANT LAW

5. 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.

6. 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).

7. 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.

8. 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”).

9. 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.

10. If a person is found not to meet the refugee criterion in s36(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. For the following reasons the Tribunal has concluded that the decision under review should be affirmed.

    CLAIMS AND EVIDENCE

11. The applicant was born in China and apart from short holiday visits in Asia has lived there all her life. She arrived in Australia on a [temporary] visa in 2013 that lapsed in December 2013. The applicant is a Uighur Muslim from Urumqi.

12. The applicant claims that she fears for her life if she returns to China and believes that she will be arrested, tortured and sentenced to death for discussing details in Australia of events that she witnessed in China in July 2009. [In] July of that year she was [working] ]in a [shop] in Urumqi when a riot broke out in the same street and she witnessed Chinese pushing Uighurs into vans and shooting those who tried to get away. She and her co-workers hid under a table in the shop and stayed there all night. The next day she ran home and stayed there for a week, after which time the Chinese ordered everyone back to work.

13. The applicant claims that on her return to work two Chinese policemen entered the store and took her and another Uighur worker to the local police station where she was questioned for 48 hours without any sleep or food. She told them she had not seen anything as she was hiding under a table. She was released without charges being laid but warned not to speak under pain of death. She claims to have not been active in any political way during her life in China.

14. A week later, [in] July, policemen called at the shop as before and took her to the police station where she claims to have again been questioned for 48 hours.

15. The applicant claims that from that date until 2013 the police would call for her about every 3-4 weeks, take her away and threaten and yell at her. She claims that she told them she had not seen or witnessed any violence [in] July 2009.

16. [In] July 2013 the applicant claims she wore a [colored clothing] representing the flag of [Country 1] which is similar to the flag of East Turkestan. She was seen in the shop or the street and was not able to verify which venue, but police took her away again and questioned her for eight hours. She was accused of being part of an activist group but she insisted it was a gift from her aunt and that she liked wearing it because it was pretty. She was released but they confiscated the T-shirt. A photograph was produced at the hearing and claimed to be similar to the article which had been confiscated by the police. It appeared to be similar in appearance.

17. The applicant claims that on leaving China in 2013, she was made to sign an agreement that she would not take part in political activity in Australia. However, since she has been in Australia, she has participated in political activity, such as rallies of (her claim) 200 people at the Chinese Consulate in[City 1]. The two witnesses who attended the Tribunal corroborated her evidence that she had taken part in the activities she described. The Tribunal was also given a letter from [MrD], the [position] of the Uyghur Association of [State 1] Inc, saying that the applicant has taken part in the activities of the association and that she may face interrogation or even be gaoled by the Chinese authorities if she were to return to China.

18. The Tribunal was shown photographs (subsequently uploaded to [social media] by the applicant and her cousin’s wife) of the applicant standing with a group of Chinese people outside the Chinese Consulate building in [City 1] holding placards reading “China Release Political Prisoners”. She claims that Consulate staff would have recorded this on film. In the photos it is possible to see security cameras on the second level of the building. It was pointed out to the applicant that if she wanted to avoid coming to the attention of the Chinese authorities this was a dangerous strategy. She replied in evidence to the Tribunal that she felt an obligation to speak out, that she carried the hopes of the nation, and that she felt an obligation to bring the country’s plight to the attention of the general public.

19. The applicant made a statutory declaration on 8 February 2016 in which she stated in paragraph 33 that it was true that she did not have an active political profile in China but that this was because she was not allowed to say anything for Uighurs or to do anything to fight for their legal rights and she was afraid of being harmed. In the declaration the applicant made claims to have been persecuted for reasons of her race as a Uighur and her religion as a Muslim. She stated that she “was born in a Muslim family, but my life was surrounded by an atheist environment….. I am illiterate even on the basic knowledges of Islam”. She stated that in Australia she had participated in activities of the Uighur community such as participating in protests, attending celebrations, fasting during Ramadan and observing prayers.

20. The applicant also stated that her family had been targeted because her grandfather had been wealthy and had owned a [business] in Urumqi. She stated that her grandfather had been killed, all her family’s assets and property had been confiscated and her parents had only been able to purchase a small apartment after years of hard work. She stated that she had not been able to finish any tertiary education ‘due to the dissemination of the Chinese state system’ and that her job had been ‘non-permanent employment’. She stated that to keep this job in a Chinese owned store she had had to deny her religious identity and to act as if she was Chinese, not Uighur.

21. The applicant’s representative supplied the Tribunal on the morning of the hearing with a 46 page submission and copies of two reports published in 2016 by the World Uyghur Congress based in Germany referring to human rights violations and the challenges faced by Uighur refugees and asylum seekers. In his submission the applicant’s representative said that the applicant had a well-founded fear of discrimination and persecution due to her race (Uyghur), nationality (East Turkestani), political opinions (imputed separatist/nationalist and anti-Chinese regime), religious beliefs (Islam) and her membership of two particular social groups (the “minority Uyghur group”, which he submitted was extremely disadvantaged by the Chinese society, and “failed asylum seeker in the west”). He submitted that she had been separated from her own religious and ethnic identity and that this should be considered serious harm. He also submitted that the fact that she had sought asylum in Australia and had participated in activities in Australia would put her at greater risk of being detained, tortured or even killed. He referred to previous decisions of the Refugee Review Tribunal which, however, turn on their own facts, and to relevant country information.

    TRIBUNAL’S CONSIDERATION OF THE APPLICANT’S EVIDENCE

22. The Tribunal was given a letter from a [medical professional] to say that the applicant had been attending [treatment sessions] since April 2016 and that she presented with symptoms of [medical condition]. The Tribunal took this letter into account when assessing whether the applicant had the capacity to participate in the hearing. The applicant was able to respond to the Tribunal’s questions at the hearing and to address the issues in a way which the Tribunal considers indicated that she understood those issues. Having taken into account the opinion of the[medical professional] , the Tribunal considers that the applicant was able to participate effectively in the Tribunal hearing.

23. The Tribunal accepts that the applicant was present in her home town Urumqi where she witnessed incidents between the Uighur and Han ethnic groups and that she was questioned by the police on two occasions over a period of some weeks. She stated that she was not physically harmed by the Chinese authorities. The Tribunal does not accept that the authorities continued to harass her every 3-4 weeks for some years as claimed. Those who were identified as being of interest during the July 2009 riots were dealt with harshly by the authorities and it is also reported that the primary targets were young Uighur men in their 20’s.[1] The Tribunal does not accept that the applicant was of continuing adverse interest to authorities as she has claimed.

    [1] Human Rights Watch, “We Are Afraid to Even Look for Them" - Enforced Disappearances in the Wake of Xinjiang’s Protests, 1 October 2009, CIS17958, page 6.

24. The applicant also claims that she was detained in 2013 for wearing a T-shirt which indicated she belonged to a politically dissident group. Given that she had no political profile in China and that she said she liked the garment because it was “pretty”, the Tribunal does not accept that the authorities would have detained her simply because she was wearing this garment.

25. The applicant claims that on leaving China in 2013 she was asked to sign a document that she would not be involved in Uighur activities in Australia and that she would not discuss actions against Uighur people such as she had witnessed. DFAT information suggests that Uighurs regarded as political dissidents do face difficulties obtaining passports and travelling overseas.[2] However the applicant was able to leave China on her own passport and had previously undertaken travel to [different counties] with no difficulty. She does not claim to have been politically active in China and the Tribunal does not accept that she was required to sign a statement on leaving China.

    [2] DFAT Country Report - People’s Republic of China, 3 March 2015, paragraphs 5.24-5.25.

26. The applicant’s political activities in Australia (attending a rally at the Chinese Consulate in [City 1] and being photographed for [social media] holding a placard) were raised at the hearing in terms of her reasons for such activity. The Tribunal discussed with the applicant the advisability of such action when she was trying to avoid bringing adverse attention to herself from the authorities. The response from the applicant was that she wanted to bring her people’s plight to the attention of the world. The applicant claims that as a result of her political activities in Australia she will be a “prime target” (her words at the hearing) and that she will be arrested at the airport on her return. However the Tribunal has rejected above her claims that she was of continuing adverse interest to authorities as a result of having witnessed events in Urumqi [in] July 2009, that she was detained in 2013 and that she was required to sign a statement before leaving China. The Tribunal does not accept that the applicant is a witness of truth and it does not accept that she in fact holds committed political opinions in favour of Uighur political rights or against political abuses against Uighurs by the Chinese authorities as she claims. The Tribunal does not accept that she was persecuted in China by having to deny her religious and ethnic identity as claimed.

27. In accordance with s .91R(3) of the Act, in assessing her claims the Tribunal disregards the applicant’s conduct of participating and engaging in anti-Chinese government pro-Uighur activities and taking part in other activities of the Uighur community in Australia, and finds that the applicant undertook these political, religious and community activities while in Australia solely for the purpose of strengthening her claim to be a refugee.

28. For the reasons given above, the Tribunal does not accept that, if the applicant returns to China, she will want to take part in political, religious and community activities but will be prevented from doing so by her fear of being persecuted as she has claimed. In her statutory declaration the applicant said that her family had been targeted because of her family background but the Tribunal does not accept that she herself suffered serious harm in the past for this reason nor that there is a real chance that she will be persecuted for reasons of her family background if she returns to China now or in the reasonably foreseeable future.

29. Although the applicant said that she had not been able to finish any tertiary education she was not denied access to education or employment for reasons of her family background, her race or her religion.   For the reasons given above the Tribunal does not accept that she believes that she was required to deny her religious and ethnic identity in order to obtain employment as she has claimed, nor that there is a real chance that she will be denied employment for reasons of her family background, her race or her religion if she returns to China now or in the reasonably foreseeable future.

30. For the reasons given above the Tribunal does not accept that, if the applicant returns to China now or in the reasonably foreseeable future, there is a real chance that she will be persecuted for reasons of her race (Uighur), her nationality (East Turkestani), her claimed political opinions (imputed separatist/nationalist and anti-Chinese regime) or religious beliefs (Islam) or her membership of a particular social group, the “minority Uyghur group”, as submitted by her representative.

31. The applicant’s representative also submitted that the applicant had a well-founded fear of being persecuted as a member of a second particular social group, “failed asylum seeker in the west”. For the reasons given above the Tribunal does not accept that the applicant was required to sign a statement on leaving China and it has disregarded her conduct in Australia in accordance with s.91R(3) of the Act. Given that the applicant does not claim to have been politically active in China and that she left China legally, travelling on her own passport, the Tribunal does not accept that there is a real chance that she will be identified as a failed asylum seeker if she returns to China or that she will be persecuted for reasons of any political opinion imputed to her as a result of having sought asylum or her membership of the particular social group, “failed asylum seeker in the west”, as submitted by her representative.

32. For all of the above reasons the Tribunal does not accept the applicant’s claims that she would suffer persecution in China for reasons of her past, present or future political opinion in favour of Uighur political and social rights and against the Chinese authorities, her religious and ethnic identity or her family background.

33. Having considered all the claims and evidence before it both individually and cumulatively the Tribunal finds that there is not a real chance that the applicant will suffer Convention-related serious harm in the reasonably foreseeable future if she returns to China. The Tribunal does not accept that, if the applicant returns to China, there is a real chance that she will take part in political, religious and community activities and it does not accept, therefore, that there is a real chance that she will be persecuted for reasons of her race, religion or imputed political opinion as a result of her participation in such activities. Accordingly, the applicant does not have a well-founded fear of persecution in China for a Convention reason and is not a person in respect of whom Australia has protection obligations under the Refugees Convention.

    COMPLEMENTARY PROTECTION CRITERION

1. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa). Having regard to the Tribunal’s findings of fact above, the Tribunal does not accept that the applicant was of continuing adverse interest to the authorities at the time she left China, nor that she was required to sign an undertaking not to be involved in Uighur activities in Australia and not to discuss actions against Uighur people such as she had witnessed. The Tribunal does not accept that she was detained in 2013 for wearing a T-shirt which indicated that she belonged to a politically dissident group as she has claimed. The Tribunal does not accept that she suffered significant harm in the past because of her family background or her religious and ethnic identity nor does it accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to China, there is a real risk that she will suffer significant harm for these reasons.

2. As s.91R(3) does not apply in relation to the complementary protection criterion, the Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that she will suffer significant harm as a result of her actual association, involvement and participation in pro-Uighur activities against the Chinese authorities and in other activities of the Uighur community in Australia. The Tribunal accepts that it cannot rule out the possibility that the applicant’s involvement in these activities in Australia may have come to the attention of the Chinese authorities.

3. In this regard the Tribunal has considered country information from DFAT which indicated that the Chinese authorities might take an interest in a person returning to China who in Australia had been a high profile activist, or was someone known for publicly criticising the Chinese Government. A person with such a profile would be treated more harshly than a low profile person. Such a person could be subjected to administrative detention or long term surveillance.[3] There is no evidence before the Tribunal to suggest or indicate that the applicant had or has such a role or profile.

   [3] "China - Country Information Request CI150402160444876 - Treatment of Returned Failed Asylum Seekers ", Department of Foreign Affairs and Trade, 18 May 2015, CXBD6A0DE6523.

4. On the applicant’s own admission, she did not have a political profile in China, she was raised as an atheist and she did not recognise the offending T-shirt as bearing any relationship to East Turkestan. Given that the applicant left China legally travelling on her own passport, even accepting that her activities in Australia are known to the Chinese authorities, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to China, there is a real risk that she will be identified as a failed asylum seeker. Since the Tribunal does not accept that the applicant has any profile the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to China, there is a real risk that she will suffer significant harm, or specifically that she will be arrested, detained, interrogated, tortured or even killed, as a result of her activities in Australia.

5. Having considered all of the applicant’s circumstances cumulatively, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to China there is a real risk that she will suffer significant harm. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

   DECISION

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

   Judith Troeth
   Member