1510385 (Refugee)

[2016] AATA 4658

1510385 (Refugee) [2016] AATA 4658 (3 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1510385

COUNTRY OF REFERENCE:                  China

MEMBER:James Jolliffe

DATE:3 November 2016

PLACE OF DECISION:  Sydney

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

Statement made on 03 November 2016 at 8:58am

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] August 2014 and the delegate refused to grant the visa [in] July 2015.

   The applicant was invited to appear before the Tribunal on 1 November 2016 to give evidence and present arguments. The applicant did not appear before the Tribunal at the time and place at which he was to appear.

   Relevant Law

3. 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.

4. 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).

5. 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.

6. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

7. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CLAIMS AND EVIDENCE

8. The Tribunal has before it the Department and Tribunal files relating to the applicant together with relevant information from a variety of sources.

9. The issue in this case is the applicant claims to fear harm if he returned to China because his family was involved in a dispute with Chinese officials about the expropriation of his family’s [properties]/businesses and without the payment of adequate compensation. He also claims to fear harm because he was involved in an altercation with an official when the official sought to remove the family from the farm.

10. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed

11. In his protection Visa application which was received in August 2014 the applicant claimed that he had been born on [date] in Fuqing in Fujian province in China. He claimed that he had never been married. He claimed that he had no right to enter or reside temporarily or permanently in any other country than China. He claimed to have arrived in Australia in August [2007]. He claimed to have been issued with a Chinese passport in [2005] and that passport expired in August 2010. He claimed to have only lived in China before he travelled to Australia. He claimed to have been educated for [number] years in China. He provided no information about any employment history. In documentation in support of his protection Visa application he said that he had a mother and father in China together with [siblings]. He provided a copy of his passport and his statement in support of his protection Visa application.

12. In his statement in support of his protection Visa application he referred to his personal particulars. He claimed his family had borrowed money to send him abroad to Australia in 2007 and claimed that his family had been persecuted by the government in China in 2007. In summary he claimed that he could not return to China is the government “has persecuted my father and my family and I became a person that I couldn’t go back to my home”. He claimed to have had a happy family life in terms of his father’s [business] and that his family enjoyed high living standards. He claimed that in 2007 his father’s [properties] were taken over by the local government and he claimed that the director of the village committee had wanted to take the [properties] for his own purposes. The applicant claimed that some people were told to forcibly remove the applicant and his family from the property. The applicant claimed that he struggled with a person called [name] when this eviction occurred and he pushed that person and that person hit a wall. He claimed the person was taken to hospital and suffered some side-effects after he was released from hospital. The applicant claimed that this man had extorted him and harassed him and for that reason his father sent the applicant to Australia.

13. The applicant claimed that he thought he could return to China “if everything could calm down later some years”. The applicant claimed however the things had not settled down and he couldn’t returned to China and he overstayed his Visa in Australia. The applicant claimed that in 2013 his father had collected money and invested money [in the business] with the applicant’s [relative]. The applicant claimed that the same village official who had previously taken the family [properties] again sought to take the property from the applicant’s father. He claimed that this was a tactic used by government officials in terms of expropriating [properties]. The applicant claimed that the officials were not acting legally and that [people] did not get proper compensation and had no rights to negotiate with the government. The applicant claimed in his statement “a lot of [people] have risks of being jailed or even facing the death”. He claimed that when [people] lost their land they had no capacity to survive and he claimed “my father sworn to take actions against the government. He appealed to higher level governments. However it makes no point for common [people] to appeal. All my father received was more cruel persecution”. The applicant claimed that his father had been detained [in] November 2013 and was beaten by the police and his leg was injured. He claimed that his father had tried to organise other people to “fight against the focible(sic) confiscations of the land. Therefore my father was targeted as typical. He was harassed(sic) and persecuted by the government.” The applicant claimed that in June 2014 his father had called him and told him that he could not return to China as if he returned “the local officials will treat me like my father”. He said he feared returning to China and he claimed he then applied for protection in Australia.

14. A Department delegate declined to grant the applicant a protection Visa.

15. On 21 September 2016 the Tribunal wrote to the applicant by email and informed the applicant that it had considered the material that had been provided but was unable to make a favourable decision on that information. The applicant was invited to attend a Tribunal hearing to give evidence and present arguments relating to his claims. The applicant did not respond to that document. The applicant did not appear before the Tribunal at the time and place at which he was to appear. The Tribunal is satisfied that service of the document of 21 September 2016 was in accordance with the requirements of the Act.

    Consideration of Claims and Evidence

16. As indicated the applicant was to appear before the Tribunal on 1 November 2016 to give evidence and present arguments. He did not attend before the Tribunal at the time and place at which he was to appear.

17. On the basis of the materials provided to the Department and available to the Tribunal the Tribunal accepts that the applicant is a Chinese citizen and that his identity is as he claims it to be. The Tribunal accepts, without evidence to the contrary, that the applicant has no right to enter or reside temporarily or permanently in any other country apart from China. The Tribunal accepts that China is the applicant's country of nationality for convention purposes and is the receiving country for complementary protection purposes.

18. As indicated elsewhere in these reasons the applicant claims to fear harm if he returned to China on the basis of the expropriation of his family's [business] without the payment of adequate compensation. He also claims to fear harm if he returned to China because he was involved in an altercation with an official when the official was involved in removing the family from the family [property].

19. The Tribunal has considered the applicant's claims and has also had regard to the DFAT country report for China dated March 2015. The Tribunal accepts that report provides credible and comparatively recent information in relation to issues in China. In particular the Tribunal notes the country information in the report that refers to the issue of corruption in China as well as the information in relation to protesters/petitioners in China and which refers in particular to land expropriation. Those aspects, in particular, appear relevant to the applicant's claims.

20. If an applicant chooses not to attend the hearing the Tribunal has only the information contained in the material before it from which to make a determination. In the present case the information provided by the applicant does not provide a sufficient basis to allow the Tribunal to be satisfied as to the validity of the claims made by the applicant. The Tribunal is not satisfied on the material and information before it that there is a real chance that the applicant would suffer serious harm if he returned to China either now or in the reasonably foreseeable future on the basis of his claims that he is at risk of harm arising out of the expropriation of his family's [business] without payment of adequate compensation. The Tribunal is also not satisfied on the basis of the material and information before it that there is a real chance that he is at risk of harm on the basis of his claim that he was involved in an altercation with an official when the official was involved in removing the family from the family [property]. The Tribunal is not satisfied on the information before it as to the applicant's claims that his family had been persecuted by the Chinese government in China in 2007 and that his family decided to send him to Australia because of that persecution. The Tribunal is not satisfied on the information before it that the applicant could not return to China because of that persecution. The Tribunal is not satisfied on the information before it as to the applicant's claims that in 2007 his father's [properties] were taken over by local government officials and that the director of the village committee wanted to take the [properties] for his own purposes. The Tribunal is not satisfied on the available information as to the applicant’s claims people were told to forcibly remove the applicant and his family from their property. The Tribunal is also not satisfied on the available information as to the applicant's claim that he struggled with a person who was involved in evicting the family and he caused that person to be injured and to require medical treatment. The Tribunal is not satisfied as to the applicant's claim that the person extorted the applicant and harassed him and that caused the applicant to be sent to Australia.

21. The Tribunal on the available information does not accept the applicant's claims that he could not return to China for fear of persecution and also does not accept the applicant's claim that in 2013 his father's businesses were again subject to expropriation by the same village official who had previously taken the family [properties] and that the family did not receive proper compensation and were deprived of rights to negotiate with the government over the expropriation. The Tribunal does not accept on the available information the applicant's claims that his father had sworn to take action against the government and to appeal to higher-level governments in relation to the expropriation or that his father was cruelly persecuted because of his stand. The Tribunal does not accept on the available information the applicant's claims that his father was detained [in] November 2013 and was beaten by the police and his father's leg injured. The Tribunal does not accept on the available information that his father tried to organise other people to resist the confiscation of land and that his father was targeted as a result and harassed and persecuted by the government. The Tribunal also does not accept the applicant's claim that in June 2014 his father told him not to return to China as the applicant would be treated like the father ( and be subject to persecution).

22. The Tribunal is not satisfied on the currently available information that the applicant has a well-founded fear of persecution on the basis of his claims.

23. The Tribunal has considered whether the applicant might meet the alternative criterion for complementary protection. The Tribunal has considered the definition of significant harm contained in the Act and the definitions in S.5(1) of the Act. The Tribunal has referred elsewhere in these reasons to the applicant's claims to fear harm if he returned to China. The Tribunal has considered the applicant's claims but is not satisfied on the available information that the applicant faces a real risk of significant harm on the basis of those claims. The Tribunal is not satisfied on the available information that the applicant faces a real risk of significant harm on the basis of his claims that his families businesses were subject to expropriation by government officials and that he was involved in a physical altercation with an official involved in evicting the family from the farm or in relation to any other claims arising out of that altercation.

24. The Tribunal is not satisfied on the currently available information that there are substantial grounds to believe that as a necessary and foreseeable consequence of the applicant being removed from Australia to China that there would be a real risk that he would suffer significant harm in terms of s.36(2)(aa) of the Act.

    Overall Summary

25. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

26. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

27. 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

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

    James Jolliffe
    Member