1511942 (Refugee)

[2017] AATA 2198

1511942 (Refugee) [2017] AATA 2198 (24 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1511942

COUNTRY OF REFERENCE:                  China

MEMBER:Meena Sripathy

DATE:24 October 2017

PLACE OF DECISION:  Sydney

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

Statement made on 24 October 2017 at 4:56pm

CATCHWORDS
Refugee – Protection visa – China – Imputed association with Falun Gong – Household registration cancelled – Compensation for forced demolition – Credibility concerns

LEGISLATION
Migration Act 1958, ss 5(1), 36, 48, 65, 499
Migration Regulations 1994 Schedule 2

CASES
AMA15 v MIBP [2015] FCA 1424
MIMA v Rajalingam (1993) FCR 220
Selvadurai v MIEA& Anor (1994) 34 ALD 347
SZGIZ v MIAC (2013) 212 FCR 235

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 arrived in Australia [in] December 2002 as the holder of a [temporary] visa and on a passport issued to him by the government of the People’s Republic of China (China). He made an application for a Protection visa [in] January 2003 that was refused by a delegate of the Minister for Immigration [in] February 2003, and on review by the Refugee Review Tribunal on 3 December 2003.   

3. Following the introduction of the ‘Complementary Protection’ criteria into the Migration Act in March 2012, and the subsequent decision of the Full Court of the Federal Court in SZGIZ v MIAC (2013) 212 FCR 235, the applicant was eligible to have his claims assessed against the Complementary Protection criterion, and on that basis, he lodged a further application for a Protection visa [in] October 2013. That application was refused by a delegate of the Minister for Immigration [in] August 2015 and is the subject of the present review.

   Validity of the application and the Tribunal’s jurisdiction

4. Section 48A imposes a bar on a non-citizen making a further application for a Protection visa while in the migration zone in circumstances where the non-citizen has made an application for a Protection visa which has been refused. However, in SZGIZ v MIAC, the Full Federal Court held that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a Protection visa which duplicates an earlier unsuccessful application for a Protection visa, in the sense that both applications raise the same essential criterion for the grant of a Protection visa. Applying the reasoning in SZGIZ v MIAC[1], the Tribunal does not have power to consider the Refugee Convention criterion in s.36(2)(a), and, accordingly, has proceeded on the basis that it can only consider the applicant’s claims under the Complementary Protection provisions in s.36(2)(aa) of the Act.

   [1] (2013) 212 FCR 235, confirmed in AMA15 v MIBP [2015] FCA 1424 (Markovic J, 15 December 2015) at [48].

5. Therefore, the issue in this case is 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 he will suffer significant harm.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Evidence to the Department

7. The applicant is [an age] year old man from Tianjin Province, China.  He speaks, reads and writes Mandarin.  He is married and has his wife, son and mother in China.  He provided one residential address in Hongqiao District Tianjin City to the time he came to Australia. He completed primary and high school in Tianjin. He states his occupation as [an occupation] but provides no details of past employment.

8. In his reasons for leaving China he states ‘to escape the persecution sustained’. He states he has been interrogated in relation to Falun Gong. He fears being interrogated again and detained and harmed by the authorities.  He also fears persecution when he claims his right to compensation for unfair demolition of his home unit by the authorities. He is in fear of being mistreated as he cannot afford to buy a unit after he authorities pushed his building down. In response to why he thinks this will happen to him he says the matter regarding Falun Gong is still open if he continues to associate with Falun Gong he will be investigated.  He said it is apparent the authorities will deny his compensation claim and if he pursues his rights he will be harmed and mistreated.

   Department interview

9. The applicant was interviewed by a delegate of the Minister [in] September 2014. The Tribunal has listened to the audio recording of this interview.  At the interview the applicant reiterated his claims as set out in the application.  He clarified that he has never been a Falun Gong practitioner and doesn’t even like it.  He indicated the authorities are interested in him because of his close association with a [friend] who is a Falun Gong practitioner. He did not indicate any past interrogation, just that the authorities were looking for him. He also referred to a new claim, not previously mentioned, that he believes his hukou was cancelled 2-3 years after he left China and he would not have legal status if he returned. The applicant confirmed that the claims made in his previous protection visa application, referring to Falun Gong practice by his wife, was not true. He said he is not a Falun Gong practitioner. When he came to Australia he briefly looked into it but he did not continue. With regard to the compensation claims, he confirmed his mother is the official owner of the unit.  His mother is with his wife and son but he has lost contact with all of them for many years now.  He does not know if his mother received compensation for the unit, but was told before he lost contact with them that the authorities would not pay any compensation until they got hold of him.

   Previous protection visa application

10. The applicant’s claims in his earlier protection visa application were significantly different to his current claims.  In a statement submitted with that application he claimed to have been a Falun Gong practitioner since 1999, along with his wife. He claimed that the police raided his home in 2000 and warned him not to continue to practice Falun Gong, and in 2000 he lost his job because of this. He claimed that he managed to get another job after this and continued to practice Falun Gong at home secretly. He travelled to Australia at the end of 2002, and before he returned a local official came to the house and warned his wife they would take action against him.  His wife informed him of this when he returned and so he immediately returned to Australia without arranging anything for his wife and son.  His wife had been summoned to the police station three times since he left and he doesn’t even know the details of what has happened to them.

11. The applicant did not appear for interview before the delegate in this application or for hearing when he sought review at the RRT. The delegate refused the application and the RRT affirmed the decision on review.

    Tribunal hearing

12. The applicant appeared before the Tribunal on 23 October 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.  The applicant’s registered migration agent did not attend the hearing.

13. At the hearing the applicant told the Tribunal he is living in [a suburb] in share accommodation, with three others. When asked if he is working, he stated that he helps a friend when he is asked.  He has no other source of income and confirmed that he pays rent of $[amount] per week. 

14. The Tribunal asked the applicant about his family composition.  He said he has no family in Australia.  In China he has a wife, son and mother.  His son is [age] years old. The applicant said he does not know what his son is doing or where they are living because he has not had any contact with them for over 10 years.  He said his last contact was in around 2005 or 2006 just before their house was demolished.  He lost contact with them after that. His wife told him before the demolition that the house was about to be demolished.  He said the house refers to the 8 square metre unit he lived in with his wife and son and mother, from birth until he left China.  The applicant said he also has [number of siblings].  They are all married and have their own families and live in Tianjin.  He is not in regular contact with any of them either. He cannot recall the last contact he had with his siblings, it would have been before his last contact with his wife.  The Tribunal queried why he wouldn’t be in contact with his siblings to enquire about his wife, son and mother’s whereabouts.  He said he fears contact with him will cause problems for his family and that is why he is not in contact with them.  The applicant then said his wife’s [relative] lives in Australia and he sometimes hears from him about his family, but the applicant is not in active contact with [that relative]. 

15. The Tribunal asked the applicant why he came to Australia.  He said he initially came to[reasons deleted].  After he returned that first time he heard that the local police were looking for him and so he returned to Australia again.  He has not been back since then. When asked what he was doing in China before he came to Australia, the applicant said he worked in a [workplace] for 10 years. He came to Australia on a [temporary] [visa].  His problems only occurred after he returned the first time. He went only to Shandong where his [specified relatives] live and which is his native place. At this time he heard from his friends in Tianjin that the authorities were looking for him and so he left again and came back to Australia.  

16. When questioned further about his first visit and return to China, the applicant gave a different account. He said he was in Shandong before his first trip to Australia.  The authorities had been looking for him for some time before that, since around the middle of 2001.  He was arrested and detained by the authorities in around June or July of 2001, on the basis of suspicion of being a Falun Gong practitioner because of his close association with a school [friend], who was a Falun Gong practitioner.  After this detention he was released and stayed with his family for the following months but they kept him under surveillance.  In around August or September 2002 he went to Shandong to avoid the surveillance.  He went alone, without his wife and son.  He lived with his relatives in Shandong and helped them with their crops.  The applicant confirmed that his job at the [workplace] had ended before that as the [workplace] closed in 2001.  The Tribunal put to him that it may not consider his claim that he was in Shandong to avoid surveillance by authorities following a period of detention, to be consistent with his actions to come to Australia [in] December 2001 and his action to return to China 3 days later.  The applicant confirmed to the Tribunal that he had no fear of return to China when he came back [in] December.  He said it was only after he returned to Shandong that his friends informed him that he was being sought after in Tianjin and should not return. He again confirmed that he was not fearful when he returned to China the first time from Australia.

17. The Tribunal asked the applicant what he is fearful of now, some 15 years later. He said now his hukou has been cancelled and he has no legal existence there.  He cannot work or travel without a hukou. When asked how he knows his hukou is cancelled, he said his wife informed him that when he left the country, the authorities came looking for him and when they could not find him they cancelled his hukou. 

18. He said he has not had any contact with the childhood friend who was involved with Falun Gong for a long time.  He last had contact soon after he arrived here and he was okay.  The applicant confirmed that he has no information about his friend since then. He does not know if he is still okay or not. 

19. The applicant said that his wife also told him, when they last had contact with each other, that the authorities were going to withhold the compensation for the demolition of the property until he came back.  He said he cannot trust authorities who behave in this manner.  Forced demolitions are prevalent in China these days. The applicant confirmed that the official owner of the property is his mother, but the compensation is owed to all of them as they are a family. The Tribunal asked, if he is not in contact with his wife, son or mother, how he knows they have not received the compensation by now.  In response the applicant referred to [surgery] his wife had 9 years ago, which was very serious but he could not even accompany her.  Again the Tribunal asked how he knew this if not in contact with them, he said her [relative] told him.

20. The Tribunal discussed its concerns about the claims he has put forward in this application. It put to him that if he was detained and questioned in June 2001, and still of interest to the authorities why they would have left him alone for over a year after that in Tianjin.  He reiterated that he was still under surveillance.  It also put to him that he said he was not fearful for his life at that time and returned to China after his first visit to Australia and this is also not consistent with the authorities having any ongoing interest in him, as is his ability to enter and depart the country with no problems.  He said his issues are with the local Tianjin authorities only and they have no influence over entry or exit processes at Beijing airport.

21. The Tribunal asked the applicant if his concerns are only with local level Tianjin authorities why can’t he return to Shandong and live there safely.  He said life in China is not like in Australia. His original hukou is in Tianjin and so he must return here.  It put to him that independent information indicates that the hukou registration system is being reformed in China and it is becoming easier for people to change their hukou registration. In response the applicant said his problem is that you cannot change your registration without old one. He is concerned about approaching the local authorities to apply for his hukou because they have been looking for him for so long. The Tribunal asked if he was afraid of them, why did he return to China in December 2002? He said he did not return to Tianjin, he went only to Shandong. 

22. Regarding his claims about the demolition of his house, the Tribunal asked the applicant how he knows the compensation was not paid.  The applicant said his wife told him that prior to the demolition they informed her that they would not give the compensation until he returned. The harm he fears about this is that the money won’t be paid until he returns and he fears he will be interrogated and detained as he was previously.

23. The Tribunal put to the applicant that the claims made in this application are very different to the claims made in his first protection visa application. He said that the first application was prepared by a representative and he has no idea what it contains.  He said he has no knowledge of the content of those claims and they are not his claims. The agent prepared the application and told him to sign it.  He was told by the agent not to attend the interview or hearing. The Tribunal put to him that his acknowledgement that he signed his name to an application containing untrue claims detracts from his integrity and it may also lead the Tribunal to have doubts whether he is telling the truth now. 

24. The Tribunal asked the applicant about his claim in his written application that he intends to seek compensation.  The applicant said the compensation is legally due to them, he does not intend to seek it.  He just doesn’t understand why they require his presence to give it.  He cannot return because they are seeking him. When asked why they would be interested in him now, the applicant said he does not know but assumes it is because of his association with his schoolmate from long ago.

25. The Tribunal put to the applicant its concern about the lack of information he has about his family’s circumstances.  Given that he has extended family in China it would expect him to be able to provide more information about his family’s whereabouts and circumstances in support of his claims and his failure to provide this information may lead the Tribunal to have concerns that he is being evasive and is not telling the truth.  In response the applicant said he has not contacted his family because of his fear of causing problems for them.

26. When asked if there was anything else he wished to say, the applicant said there is not. 

    Independent information

    Renewing Hukou on return from overseas

27. The US Department of State notes in its Country Report on Human Rights Practices for 2014 – China that the national household registration (hukou) system continued to change:

    Although the government maintained restrictions on the freedom to change one’s workplace or residence, the national household registration system (hukou) continued to change, and the ability of most citizens to move within the country to work and live continued to expand.[2] 

    [2] US Department of  State 2015, Country Reports on Human Rights Practices for 2014 – China, 25 June, Section d, p.41 ​< Accessed 16 February 2016  <OG2B06FAF44>

28. In her 2010 research paper, Elaine Lynn-Ee Ho notes that household registration (hukou) is ‘closely tied to entry and exit administration in China, which is managed by the Ministry of Public Security’ and states that:

    Prior to 2004, Chinese citizens who left China for more than year also had to relinquish their hukou status, which they could reinstate only upon their physical return. This regulation was later abolished, thus allowing Chinese citizens living overseas to remain abroad for a longer period of time without losing their hukou status (Liu 2009, 319).[3]

    [3] Ho, E 2010, Caught between Two Worlds: Mainland Chinese Return Migration, Hukou Considerations, and the Citizenship Dilemma, Centre of Excellence for Research on Immigration and Diversity, Metropolis British Columbia, 1 May, p.13  < > Accessed 23 April 2014 <CIS27955> 

29. The Congressional-Executive Commission on China’s 2015 report stated that ‘[p] eople who lack hukou in China face considerable difficulty accessing social benefits compared to registered citizens’. [4]

    [4] Congressional-Executive Commission on China 2015, Congressional-Executive Commission on China Annual Report 2015, p.30 < > <CISEC96CF13676> 

30. An August 2014 article in the China Daily reported that police would focus their investigations on ‘[t]hose who have obtained residency permits or citizenship abroad but have not cancelled their Chinese household registrations’, which allows them to benefit from welfare services such as medical insurance, pensions and children’s education. [5] The article noted that ‘[f]rom 2013 to June 2014, the ministry cancelled 1.06 million hukou that were still illegally registered by Chinese citizens’. In 2003 the Ministry of Public Security (MPS) issued a notice allowing those who stayed overseas for more than one year to keep their hukou, but those who ‘settled down’ overseas had to give up their hukou.[6]

    [5] Zhang, Y 2014, ‘Police focus on emigrants who still have their hukou’, China Daily, 11 August <

    [6] Yin, P 2014, ‘Debating Dual Citizenship’, 2 October, Beijing Review < > 

1. A July 2015 article in the Global Times, an English language Chinese newspaper under the auspices of the government’s People’s Daily newspaper, notes that the Chinese government views returnees from overseas as a valuable resource:

   China's new leadership has attached greatest-ever importance to oversees returnees as the country deepens the reform of its political system and economic transformation. The Party is striving to put more trust in the overseas returnees and seeking more support and political participation from them. By bringing them into the administration and governance talent pool, in addition to scientific research and business sectors, the government hopes to add vigor to China's social and economic development.[7]

   [7] Huang, J 2015, ‘China seeks greater participation of overseas returnees in government work following Xi’s call’, Global Times, 29 July <

2. The article goes on to note that from the 1970s until the end of 2014, 3.52 million Chinese students had studied overseas, of whom 1.81 million had returned to China. The number of Chinese students who have returned to China after their overseas studies indicates that re-activating household registration for Chinese citizens returning from time spent overseas is something that has been done by large numbers of people, including Chinese students who have studied overseas. 

   Land expropriation and compensation in China

3. A number of sources indicate that land expropriation and other incidents involving citizens being forced from their homes remain an issue in China. The US Department of State reports that, during 2013, disputes over land expropriation in China ‘continued to trigger large-scale clashes between police and protesters’.[8] According to Freedom House, ‘an estimated four million disputes resulting from land grabs and property demolition occur each year’, and ‘Residents who resist eviction, seek legal redress, or organize protests often face violence at the hands of local police or hired thugs’.[9]

   [8] US Department of State 2014, 2013 Country Reports on Human Rights Practices – China, 27 February, Section 2b <

   [9] Freedom House 2014, Freedom in the World 2014 – China, 23 January, Section G <>

   Although payment of compensation is required by law and under the constitution, a Landesa Rural Development Institute survey found that 22.5 per cent of farmers received no compensation for their expropriated land.  In 12.7 per cent (of all seizures) no offer of compensation was made while in 9.8 per cent of cases, compensation was promised but not paid. 

4. Property disputes frequently arise from local officials’ collusion with property developers to pay little or no compensation to displaced residents as well as inadequate government oversight or media scrutiny of local officials’ involvement in property transactions and a lack of legal remedies or other dispute resolution mechanisms for displaced residents.[10] Low compensation standards and weak legal protections have facilitated land seizures by local officials, who often evict the residents and transfer the land rights to developers. Corruption is endemic in such projects as land development is a key source of revenue for local governments.[11]

   [10] Country Reports on Human Rights Practices 2016 – China’, United States Department of State, 3 March 2017 OGD95BE926885 Section 1f, p.22

   [11] Freedom in the World 2017 – China’, Freedom House, 1 February 2017, NG2A465F539, Section G ‘Personal Autonomy and Individual Rights’

   FINDINGS AND REASONS

5. As indicated above in paragraph 4, the applicant was previously refused a Protection visa in 2003 on the basis of the Refugees Convention. Applying the reasoning in SZGIZ, the Tribunal finds that it does not have the power to consider the applicant’s claims under the Refugee Convention criterion in s.36(2)(a) of the Act and has proceeded on the basis that it can only consider his claims under the complementary protection provisions in s.36(2)(aa) of the Act.

6. A summary of the relevant law is set out at Attachment A.

   Nationality

7. On the basis of his evidence to the Tribunal and his Chinese passport, the Tribunal accepts the applicant is a national of China and considers China is the receiving country for the purpose of assessing his claims against the complementary protection criteria.

   Consideration of applicant’s claims

8. When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims.  This usually involves an assessment of credibility of the applicant.  When doing so the Tribunal is mindful of the difficulties faced by refugee applicants, including issues relating to use of interpreters, nervousness and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims.  The Tribunal is mindful that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true. (See MIMA v Rajalingam (1993) FCR 220) However the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, 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 made out. (see Selvadurai v MIEA& Anor (1994) 34 ALD 347 at 348).

9. The applicant has advanced the following claims in the present application: he fears detention and mistreatment at the hands of local authorities in Tienjin because they suspect he is a Falun Gong practitioner because of his close association with a school friend who practices Falun Gong.  He claims he was interrogated and detained in the past on this basis, and was under surveillance by authorities since then.  He claims his hukou was cancelled by local authorities when they came looking for him after he departed China and could not find him.  He claims while he has been in Australia his family home was demolished and the family was told that the compensation they are owed will not be paid to them until the applicant returns to China so they can question him.  In his application he claimed that he fears harm when he claims his right to compensation for the unfair demolition of his family home, although before the Tribunal he did not indicate that he was intending to take any action regarding the compensation, stating only that the compensation was being withheld because of his failure to return.

10. After careful consideration of all of the claims and evidence, the Tribunal does not accept that the applicant is a credible witness and finds that he has not given truthful evidence about his past experiences and circumstances in China and on this basis it does not accept his claims.  The Tribunal does not accept that the local authorities are interested in or seeking the applicant for questioning upon his return to China.  It does not accept that he was detained and/or interrogated in the past in relation to Falun Gong or because of his association with a Falun Gong participant.  It does not accept that his hukou was cancelled by the authorities because of their interest in him or his failure to return to China.  Given its adverse credibility assessment of the applicant, and absence of any other evidence in support, the Tribunal also does not accept the applicant’s claims regarding the demolition of his family home and non payment of compensation.  The reasons for the Tribunal’s conclusions follows.

    Claims relating to local authorities interest in the applicant for association with Falun Gong

11. The Tribunal rejects the applicant’s claims to be of interest to local authorities in Tienjin due to his imputed association with, and/or practice of, Falun Gong, taking into consideration the following.

12. Firstly, his claims in the present application are significantly different to the claims made in his previous protection visa application, made shortly after his arrival in Australia where he claimed he and his wife were Falun Gong practitioners.  He has explained to the delegate and the Tribunal that the claims made in that application were constructed by his then agent and he is not aware of the details.  He told the Tribunal he was just told to sign the application and told not to attend the interview with the delegate or Tribunal hearing and so he never had the opportunity to present his own evidence.  He confirmed to the delegate and the Tribunal that he is not and has never been a Falun Gong practitioner, nor has his wife or any other family member.  While the Tribunal acknowledges that the applicant has been frank and candid now about the untruthful claims advanced in his previous application, it finds that his acceptance by signing that application containing false information reflects very poorly on his integrity.

13. The Tribunal also considers that the applicant’s preparedness to pursue an application based on incorrect information reflects poorly on the credibility of his present claims.  Had he genuinely been detained and interrogated in the past in China, and fearful for his life on that basis, the Tribunal would expect him to have informed his agent and advanced this claim in his first application made soon after his arrival. 

14. The Tribunal also doubts the truthfulness of his claimed detention, interrogation and surveillance by local authorities, or continued interest in him by the authorities, given that he was able to remain living and working in Tienjin for over a year after that, and did not depart China for a year and a half. He also returned to China [in] December 2002, after first arriving here [earlier in] December 2002.  The Tribunal considers his ability to depart China without any issues on two occasions in December 2002 and his return to China after leaving the country, contradicts and is inconsistent with his claim that he is of ongoing interest to the authorities and his claimed fear of return on this basis.

15. On his own admission in this application, the applicant is not and has never been, a Falun Gong practitioner. 

16. Having rejected the applicant’s claims that he was detained and/or interrogated about Falun Gong or on the basis of his association with a Falun Gong leader, the Tribunal is not satisfied that there is any basis to believe he faces a real risk of significant harm for this reason upon his return to China.

    Cancellation of hukou

17. Regarding the cancellation of his hukou, the Tribunal observes the applicant made this claim for the first time in his interview with the delegate.  He provided no documentary evidence to support it.   Given the Tribunal’s rejection of his claims of being of interest to the authorities due to his Falun Gong association, and adverse assessment of his credibility generally, the Tribunal also rejects his claim, based solely on his assertion, that his hukou was cancelled by the local authorities because of their adverse interest in him.   

18. It is however prepared to consider the possibility that his hukou was cancelled due to the period of his absence, on the basis of independent information (set out above) that indicates that prior to 2004, citizens travelling abroad for more than a year may have had to relinquish or cancel their hukou. However sources considered by the Tribunal also indicate that this regulation was later abolished and since then the period of stay overseas before a hukou must be cancelled has been extended.[12] The Tribunal notes information about a notice issued in 2003 by the Ministry of Public Security (MPS) allowing those who stayed overseas for more than one year to keep their hukou, but those who ‘settled down’ overseas had to give up their hukou[13] and other information regarding more recent reforms of the registration system and the value placed by the government on returnees from overseas.[14]

    [12] Ho, E 2010, Caught between Two Worlds: Mainland Chinese Return Migration, Hukou Considerations, and the Citizenship Dilemma, Centre of Excellence for Research on Immigration and Diversity, Metropolis British Columbia, 1 May, p.13  < > 2014 

    [13] Yin, P 2014, ‘Debating Dual Citizenship’, 2 October, Beijing Review < > <CX1B9ECAB11682>

    [14] Huang, J 2015, ‘China seeks greater participation of overseas returnees in government work following Xi’s call’, Global Times, 29 July < <CXBD6A0DE17782>

19. To the extent that the Tribunal accepts as possible that the applicant does not hold a current hukou, and that as an unregistered citizen he may face considerable difficulty accessing social benefits,[15] independent information before the Tribunal indicates returnees (who are not of adverse interest to the authorities) who have not obtained foreign citizenship would have no difficulties restoring their previous hukous.  In any event, the Tribunal finds that any difficulties accessing social benefits or administrative inconveniences due to not being able to obtain a hukou, or delay in him obtaining a hukou, would not amount to significant harm within the meaning of that term.

    [15] Congressional-Executive Commission on China 2015, Congressional-Executive Commission on China Annual Report 2015, p.30

20. For these reasons the Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm because he does not have a hukou upon return.

    Non payment of compensation following demolition of family home

21. The applicant claimed that his family home was unfairly demolished since he has been in Australia and that compensation owed to his family as a result has been withheld because of his absence and the local authorities interest in him.  However, the Tribunal has rejected his claims of being of adverse interest to the authorities on the basis of his association with Falun Gong or any other reason.  He has not provided any documentary or other evidence to support his claim of the demolition of his family home and/or non payment of compensation.  The applicant claims his knowledge of this matter was conveyed to him by his wife during his last phone contact with her in 2005 or 2006.  His oral evidence about the matter is vague and lacking in convincing detail. He also acknowledged that the official owner of the home is his mother.  He indicates he is not in contact with his mother and has not been for many years.  He also said he has not had any contact with any of his siblings to enquire about the whereabouts or welfare of his wife, son or mother.  The Tribunal finds the applicant to be evasive and unconvincing in his evidence in respect of this claim.  On the evidence before it, it is not satisfied that his family home was demolished, whether fairly or not, or that compensation was not paid.

22. Although the Tribunal acknowledges, as indicated in the independent information referred to above, that land expropriation and disputes about compensation is a significant issue in China, it does not accept in the present case that the applicant’s home was demolished or that his mother was not properly compensated.  Even if the house was demolished, insufficient evidence has been provided to base a finding that it was done so under unfair or unjust conditions or that compensation was not offered or paid. For these reasons the Tribunal rejects the applicant’s claims and it is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm for reasons relating to the demolition of his family home or non payment of compensation.

23. The Tribunal is not satisfied, having considered the applicant’s claims individually and cumulatively, there are substantial reasons for believing there is a real risk the applicant will suffer significant harm if removed from Australia to China. Therefore the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

24. 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

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

    Meena Sripathy
    Member

    
    

    RELEVANT LAW

26. 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

27. 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’).

28. ‘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.

29. 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

30. 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.