1514612 (Refugee)

[2018] AATA 2929

1514612 (Refugee) [2018] AATA 2929 (7 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1514612

COUNTRY OF REFERENCE:                  China

MEMBER:Mireya Hyland

DATE:7 June 2018

PLACE OF DECISION:  Sydney

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

Statement made on 07 June 2018 at 8:23pm

CATCHWORDS

Refugee – Protection Visa – China – Land expropriation – No Compensation – Threats and harassment by local officials – Inconsistent claims – Vague and confused evidence – Witness credibility – Decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5AAA, 36, 65, 499

Migration Regulations 1994 (Cth), Schedule 2

CASES

Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

Randhawa v MILGEA (1994) 52 FCR 437

Selvadurai v MIEA & Anor (1994) 34 ALD 347

Sun v MIBP [2016] FCAFC 52

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 on 29 September 2015 to refuse to grant the applicant, [a] protection visa under s.65 of the Migration Act 1958 (the Act). [The applicant] applied for the visa on 10 September 2014.The delegate refused to grant the visa on the basis that she was not satisfied that he has a real chance of suffering serious harm for a Convention reason or significant harm as defined in s.36(2A) in the foreseeable future. That decision was provided to the Tribunal by [the applicant] with his review application.

2. The issue in this case is whether [the applicant]’s claims are credible and raise a real chance of persecution or significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CRITERIA FOR A PROTECTION VISA

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). 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 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 Convention’). If a person is found not to meet the criteria for a refugee, he or she may nevertheless meet the criteria for complementary protection in s.36(2)(aa). The applicant must be 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. Subsections 36(2)(b) and (c) provide an alternative for an applicant who is a non-citizen in Australia who is a member of the same family unit as a person mentioned in s.36(2)(a) or (aa) who holds a protection visa.

   Mandatory Considerations

5. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Refugee Law Guidelines and PAM3 Refugee and humanitarian - Complementary Protection Guidelines. It has also taken into account the relevant country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, Country Information Report – China dated 21 December 2017, to the extent that it is relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. [The applicant], who is of Xibo ethnicity, was born in [Village 1], [Town 1], Faku county in Liaoning province and is an only child. He lived with his parents, [Mr A] and [Ms B], who are farmers, until 2007 when he did internships in different parts of China as part of his degree in [a certain field]. In 2009 he settled in Tieling city, about [number] km from [Village 1], and worked as an [Occupation 1]. He worked for that company until he left China in January 2014. According to his application he married [Ms C] [in] 2007 (although he told the Tribunal they married in 2011). She is not of Xibo ethnicity. He purchased an apartment in Tieling city in 2011 and his son, [Master D], was born on [date of birth].

7. [The applicant]asked for long leave from his employer to study and he and his wife arrived in Australia on 15 January 2014 as the holders of Class TU (subclass 573) Student visas. He came to study [certain] courses to further his existing education. He borrowed the money for the tuition from friends and his aunt, but was unable to afford continued study after July 2014. [Master D] remained in the Tieling apartment with [Mr A] and [Ms B]. He is now [age] years old. [The applicant] and Ms [C] separated in July 2014 and they are now estranged. He does not know her whereabouts. He currently works [in building industry].

8. [The applicant] told the Tribunal it was always his intention to come to Australia. A friend told him it is a good place in August or September 2013. He decided to apply for protection in July 2014 because he did not want to become unlawful. He had stopped studying and he was concerned his education provider would report him. He said there was a lot of preparation so he did not actually apply until September 2014.

   Nationality

9. On the basis of the evidence before it the Tribunal finds that [the applicant] is a citizen of China, that he is outside his country of nationality, and that China is his receiving country for the purposes of the complementary protection criteria. There is no evidence before the Tribunal to suggest that [the applicant] has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

   Claims and Evidence

10. [The applicant]’s claims are contained in his protection visa application form and a signed written statement dated 8 September 2014 that accompanied his application (together ‘his application’). He told the Tribunal that he filled in the form and wrote the statement using an electronic translation program. He is aware of what is in his application and it is complete and correct. [The applicant] attended an interview with the delegate on 3 September 2015. He appeared before the Tribunal on 12 March 2018 to give evidence and present arguments. He was assisted at the hearing by an interpreter in the Chinese (Mandarin) and English languages. Where relevant the evidence from the interview and the hearing appears in this decision. It does not necessarily appear in the order in which it was given.

11. At the hearing [the applicant] submitted photographs of demolished buildings, various buildings with Chinese characters in red or white paint on their walls or gate, a line of cut trees by a roadside, a broken glass door, potholes in a road, and a photo of a group of unidentified men. [The applicant] did not make any submissions to explain the photographs.

12. [The applicant] also provided a video of a news report in Chinese. He said it aired [in] June 2016 and reported events that took place on 12 or 13 June 2016. The Tribunal asked him to provide a translation of the report or a description of what he wished to rely on in the news report. On 17 March 2018 [the applicant] sent the Tribunal a submission describing the content of the video, a report by [a] TV Station, that he wished to rely on in support of claims made at the hearing.

13. On 20 April 2018 the Tribunal wrote to [the applicant] inviting him to comment on or respond to information that if accepted would be part of the reason for affirming the decision under review by 16 May 2018. On 14 May 2018 [the applicant] provided a written response to the invitation. The Tribunal has considered his response in its findings below.

    Protection Visa Application

14. In his application [the applicant] made the following claims:

    ·    In mid-July 2014, his father told him that the Chinese government planned to redevelop certain rural areas and 50 mu of the family’s farmland would be expropriated. The county government allocates compensation to the town government. Then the town government is responsible for allocating compensation to each household. But his town government did not follow the provisions of the county government fully when allocating compensation payments and only gave a small amount of compensation.

    ·    In June 2014, his parents and their neighbours went to the county government to petition. So far the problems have not been resolved. His parents have lost the land so they have lost their source of income.

    ·    If he goes back by himself without his wife he will lose face.

    ·    Even if he goes back, he does not know how he will live. He has been dismissed from his job because he has been in a foreign country for more than six months. If he goes back to China he fears he will not have employment because his boss at his work unit will not give him back his job. In answer to the question, ‘do you think the authorities of that country can and will protect you if you go back’, he wrote, ‘it is hard for me to find a job in China. My parents have lost income.’

    Delegate’s Interview

15. At the interview in September 2015 [the applicant] made the following further claims:

    ·    He applied for protection so he could stay in Australia lawfully. He was scared his education provider would report him and have his visa cancelled. He stopped studying and did not want to become unlawful, but did not want to ask his family for more money.

    ·    [The applicant]’s parents had 50 mu of farmland in [Village 1] because of the number of people in the family. It was private, not community, land and they farmed peanuts, corn and chili. When asked where the land was he could not say and confusingly first said people bought his parent’s land then said his parents bought other people’s land. In November 2013 the government issued a notice that the land would be taken. It was taken and the properties demolished in March or April 2014. In the beginning they allowed the villagers to work the farms, but then in June 2014 they would not let them harvest. His family stopped working on the farm in May or June 2014.

    ·    The Faku county government told the villagers about compensation, but not an exact figure. Some said the money would be paid gradually a little every year, but nothing was ever received. Once the property and land were taken away the family could not support themselves. [The applicant] claims the government where his parents made the appeal, Faku county in Liaoning province, will persecute him because they know that ‘we know they are corrupt’. He does not think he can get protection from the government because his parents, neighbours, and the villagers tried without any result.

    ·    [The applicant] cannot return to China because he is afraid of persecution and he does not have a job or a place to live. Because his parents appealed to the government he is concerned he will receive unfair treatment and will not get a job. He said he has no place to stay and is concerned the government will ‘put pressure on me’. A neighbour’s child worked in a State owned company and he was fired. [Mr A] and [Ms B] went together with that person’s parents to make the appeal. Since July 2014, when he heard what had happened to his family, he has feared he will suffer harm from the county government. His neighbours had difficulties at work after complaining about the lack of compensation and their children had difficulties at school. He worries he will have the same thing happen to him.

    ·    [Mr A] and [Ms B] started living in [the applicant]’s Tieling apartment, which is about 60sqm, after he came to Australia and, at the time of the interview, had been living there for about a year and a half. His parents have not received compensation for the land in [Village 1] so they rely on [the applicant] for support. [Master D] lives with [Mr A] and [Ms B] and [the applicant] sends money back. His parents subcontracted around 20 mu of land the year of the interview (2015), but there was a drought so they did not have anything.

    ·    While [the applicant] made no claims regarding his Xibo ethnicity, he claimed the Xibo continue their traditional customs. They are not allowed to marry outside their ethnic group, but he married a Hun and now she has left him. This is a great humiliation and brings shame to his ethnic group. He will lose face because Ms [C] left [the applicant].

    ·    [The applicant] cannot return to China because he owes [an amount] to friends and relatives which he borrowed for study in Australia and he has not paid back. They are asking for the money.

    ·    He was a good [Occupation 1] before he came to Australia, but now he does not know what he can do if he returns to China.

16. [The applicant] told the delegate he had put forward all his claims for protection.

    Hearing

17. At the hearing [the applicant] provided additional information relating to his claims about the confiscated farmland in [Village 1]. He also made additional claims about the 20 mu of land purchased by his parents in the neighbouring village in 2015 and his father’s activities since the interview.

    The Property and Land in [Village 1]

18. The family’s property in [Village 1] consisted of a two bedroom house and outbuildings. They grew vegetables in the front and back yards. The land [Mr A] farmed was 50 mu spread over different plots of land that they would have to rotate with other farmers from time to time. In May or June 2014 the Faku government wanted to develop the land so they seized nearly all the plots close to the hills near the village, including all of the family’s property. The government planted trees on the land. They took the small plots and made a large tree and wetlands area for environmental reasons. However, [the applicant] believes it was actually for commercial purposes. The Tribunal assumes photos provided by [the applicant] of building rubble in a file marked ‘chaiqian’ (sometimes translated as ‘forced eviction’) are submitted as evidence that properties in the village were demolished.

19. The Chinese government usually gives a lot of compensation to farmers when their land is taken. The Faku government did not say how much the compensation should be, but the villagers learned about their entitlements from other projects. Everyone was talking about the amount and how the compensation is paid as a lump sum or instalments over ten years. However, compensation for the property and the farmland was never paid. Faku county paid the money to the township, but they did not give it to the villagers. When the villagers did not get the compensation they went to the county government, but they received no response. They visited the office in person, however, they were not allowed to even enter the courtyard of the Faku government office.

20. [The applicant] told the Tribunal that [Mr A] then went to the Tieling apartment, but some of his neighbours received ‘a lot of pressure’. The local government had done ‘all this’ without the knowledge of higher levels of government so they put pressure on the farmers. The example of that pressure [the applicant] gave to the Tribunal was of a person who used to work in the government who was removed from office because his parents went to petition about the compensation. He also said when the villagers tried to take the bus to the government office they were denied a bus ticket when they showed their identification.

21. [Mr A] is afraid that if [the applicant] returns to China he will go to Faku county for the compensation. When asked if, four years after the land was confiscated, he would do this he said, ‘all I can do is visit the government or report them through other channels. I feel that it’s pointless’ and that if it happens to you all you can do is ‘get back to them.’ [The applicant] told the Tribunal the government would retaliate by jailing them for no reason.

    Issues in the Village and the Village Election

22. [The applicant] said you cannot get your wrongs redressed or justice in his village. For instance, he told the Tribunal that heavy vehicles go down the road in the village causing it to subside. Many villagers reported it to the local government, but they did not care. So the villagers got together to stop the vehicles themselves. One day they stopped a vehicle and the driver made a phone call. They did not know who the call was to, but afterwards a large gang came and beat the villagers and they had to be taken to hospital. Still no one in the government cared about the road, but now none of the villagers dared to stop the vehicles. The Tribunal assumes that the photos provided by [the applicant] in the file marked ‘malu’ (sometimes translated as ‘road’ or ‘street’) of a potholed and damaged road are submitted as evidence of the road described by [the applicant]. The Tribunal notes that this file also contains a photo of a group of unknown men taken in an unknown place at an unknown time. [The applicant] did not provide any explanation for this picture.

23. Another example of corruption in the village was that they came and cut down the trees by the side of the village road. Trees belong to the government. These were sold for a high price, but it was illicit and the money was for personal use. The Tribunal assumes that the photos of cut trees by the side of a road provided by [the applicant] in a file marked ‘kanshu’ (sometimes translated as ‘trees’) were submitted as evidence in support of this claim. The Tribunal notes that this file also contains a photo of a broken glass door. [The applicant] did not provide any explanation with this picture.

24. [The applicant] told the Tribunal that in March or April 2016 there was a village election and [Mr A] went back to run. He gained the most votes and should have been elected, but instead the previous leader succeeded. The town government was responsible for the village elections and they changed the results because they believed the other person had a better relationship with the county government. [Mr A] thought this was unfair so he reported everything that had happened in [Village 1] to the Faku government including the excessive cutting of the trees by the roadside. He called a taxi and went to the county government office. But he was not received by the leader or person responsible so he went back to Tieling city. [Mr A] has not gone back to the village again because he does not have any land there anymore.

25. The taxi driver who drove [Mr A] also owned a supermarket in [Village 1]. The next day the supermarket was ‘broken into pieces’ (the Tribunal has considered that the anomalous photo in the ‘kanshu’ file may be intended to relate to this claim). [The applicant] believes this occurred because the taxi driver took [Mr A] to complain to the county. He said it must have been done by the government, not necessarily the police, but they must have relations with underground people so they can do that type of thing. They wanted to stop anyone from going and reporting to the county.

    The 20 Mu of Land in the Neighbouring Village

26. In June 2016, [Mr A] and other villagers (many of them family members) got together and bought 20 mu of land a few kilometres from Faku, in a neighbouring village, near Shangyan city. They bought the land from ‘the town’. This cooperative cultivated the 20 mu in May. In June 2016, while the plants were still little, this land was also taken by the government without compensation.

1. [The applicant] told the Tribunal that two uncles were jailed, one for a year and the other is still in jail. His cousin visited the uncle and said he is ‘tied like a spider’. When asked why his uncles were jailed his evidence was confused and vague. Initially he only said ‘I have a video on this.’ He then told the Tribunal, ‘it is a piece of news’, rather than telling the Tribunal why his uncles were jailed. It asked several times about how the news story related to the 20 mu or his uncles, but much of his evidence remained unclear. For instance, he said the news in the video happened in Shangyan city and exposed ‘everything’ that happened in June 2016. The Tribunal asked if this related to the election, the trees, or the arrests and he only replied that the arrests were afterwards and the news report was about the pesticides, which [the applicant]  had not previously raised.

2. The news story is dated [June] 2016 and explains events that took place on 12 or 13 June 2016. In May the cooperative planted corn on the 20 mu, but the government told them to stop farming because trees were going to be planted to return the land to forestation. The 20 mu of land was not for cultivation. The town did not follow the policy of the city or county governments to plant trees. Instead they sold the land piece by piece for a personal profit to the villagers who had been relocated from [Village 1]. [The applicant] believed there must have been ‘heavy pressure’ from above for them to go to the farmers and say the crops must be destroyed and trees planted.

3. There were no crops the previous year because of the drought and the cooperative had no income. So the seeds and fertilizer for 2016 were purchased on credit and when the harvest came they would pay a little more. At 1pm the government said it would take the land after the harvest if they could pay a ‘security’ in two hours. Nobody could afford the amount of the security by 3pm so [the applicant] believes ‘it was just a procedure’. Some people tried to pay the next morning but were told it was too late and the government would have to take the land. When the Tribunal tried to explore what kind of security [the applicant] was talking about, for instance its purpose or terms, he only said they purchased the land from the town and the town gave them a receipt.

4. On the day after the government asked for the security they came to take the land. [The applicant] claimed his father went back to the land that day even though he had not paid the security. There were police on the side of the road to prevent [Mr A] from going onto the land. The cooperative could not do anything or they would be accused of assaulting the police, a serious crime in China. But when the Tribunal asked him if his father just returned to Tieling city [the applicant] did not answer. The government killed all the crops with very strong pesticide. [The applicant] said people got down before them, but they were ‘emotionless’.

5. A couple of days later someone called the municipal news station which came to report the incident. When the reporter visited the town for more information none of the leaders were there. They knew someone was coming so they avoided the interview. Two or three days after the news report two of [the applicant]’s uncles were jailed for no reason by police. He claimed [Mr A] was not arrested because he was not in the village at the time. His uncles were jailed because of just one incident, but [Mr A] has been involved in more things ‘so what would happen to him’. He said [Mr A] is safe for now as long as he stays out of the village. [Mr A] does not want to ‘go back’ and [the applicant] does not want his father to ‘go back’ because he fears [Mr A] will be treated the same as the uncles. But when asked how the circumstances surrounding the 20 mu of land would result in harm to him, [the applicant] just said it was hard to imagine because his two uncles ‘have set a very good example’.

   Submission on the [June] 2016 News Report

6. [The applicant] provided the following summary of what is on the video he provided at the hearing. He claims it is a report by [a] TV Station relating to forced land acquisition and poisoning of corn on that land with a highly toxic pesticide:

   At the beginning, on receiving a thread (sic) about the event by one of the villagers, reporters from [a] TV Station came to do an interview. They saw the corn seedlings at the site were killed by highly toxic pesticide. They asked the villagers why it happened. Among the villagers, my two grandfathers, who are the younger brothers of my grandma (those corns were cultivated by my father and them with seeds purchased), told them about it. It was said that some persons came to spread highly toxic pesticide with the coordination of policemen. One grandpa tried to communicate with the policemen, requesting to talk to the chief of police. But the chief said they were just performing official business as per orders of the township government. This kind of toxic pesticide kills all plants and pollutes the environment. A woman in the video said that those persons came to serve the evil. She asked them not to do such things and even kneeled down to beg them, but they showed no sympathy. As there was a serious drought in the previous year, the villagers gained no income and had hardly any money to make ends meet. The seeds and chemical fertilizers for the land were borrowed from other people. The crops, growing well this year, mattered much to them. So just think how cruel they were to apply the toxic pesticide. A middle-aged man (one of my uncles) said that a person from the township government came before the execution and promised not to damage the land if they could pay an earnest money of RMB 5,000 Yuan within two or three hours. Nobody could pay such an amount in such a short time. The government just went through motions and damaged the land openly the next day. After figuring out what happened, a journalist went to the township government to make inquiries with receipts of us purchasing the land issued by the township government. The Village Mayor, two Deputy Mayors, Secretary of the Communist Party Committee and other major leaders were all absent during working hours. Apparently, they went out to avoid the interview. Just think why they tried to avoid the interview if they had done nothing wrong. The land might not be cultivated according to policies, but the township government sold the land to us only for private profit. Since their intention came to light, they had to take the land back and plant tree on it so that they could have a good report to their superior. They only cared about their own rights, money and status instead of the villagers’ losses and interests. Dead corns on land of more than 100 Mus were such a loss for villagers. Later, my two uncles were detained without reason or any accusation. The report told they would keep tracking the event, but failed to do so because of the pressure from someone we don’t know. Because of the event, we prevented them from seeking gains and getting promotion and rich. My father was not there when the event happened. Otherwise he would have also been detained. It was not just mere guess. It had happened to my two uncles. I will not wait to prove it until it really happens and until my father is truly detained and persecuted. I do not want it if I go back to the village in China, continue to appeal to the higher authorities for help and finally get myself persecuted, because at that time I will have no chance to seek shelter from the Australian Government. I hope that with this video, I could help to prove to you that I would suffer the same if I go back to China.

   Looking for [Mr A]

7. [The applicant]  said that after complaining about the village election, not only was the taxi driver’s supermarket destroyed, but the government also had people looking for [Mr A]. However, because he was not in the village they could not find him. After so many incidents his father would never dare go to Faku and rarely left Tieling city. He knows there have always been people who are looking because they keep asking in the village for [Mr A]’s address, although no one has given the address. [Master D] has been transferred to four different kindergartens. [Mr A] knows someone is looking for them, but they will do nothing in the open. [The applicant] claimed the government does not know where his parents and son are living so they cannot find them, but someone in the government is continuing to look or perhaps they hired someone to find them.

   Other Claims

8. [The applicant] claims he will be unemployed because there is nothing he can do. In China he was a [Occupation 1], but the computer software is updated all the time so his skills are out of date. He does not believe he could reskill after four or five years out of the industry. Also, the industry requires creativity and inspiration and he doubts he could get back in after this long. [The applicant] currently works as [an occupation], but said in Liaoning there is no [such] industry.

9. When the Tribunal asked if [the applicant]  was still making claims about his separation from Ms [C] set out in the application and made at the interview he said ‘for me it will be definite, but for my wife shouldn’t.’ When the Tribunal repeated the question he said that the separation caused some disgrace but ‘it is incomparable in terms of the governmental harm. I’m not saying that I will ignore it, but I just mention it that’s all.’

10. [The applicant] claimed he has nowhere to live if he returns to China because the Tieling apartment is too small. He claimed there is no room for him with his parents, son, and grandmother already living there.

    Findings and Reasons

11. [The applicant] was not entirely clear about what he fears will happen if he returns or why because his evidence on this point was vague and confused. He did not provide any claims he will suffer harm in his application and what claims he did make to the delegate were generalised and mostly related to others. Nor could he initially give the Tribunal any clear understanding of why he feared returning to China. On a number of occasions the Tribunal asked [the applicant] to explain his fear, but he only said that it was in his documentation or details were in his documentation. But none of the claims about what will happen to him if he returns is in his application and he provided no other documents. Finally he said ‘can I tell you afterwards’.

12. Eventually [the applicant] claimed the government has been looking for his father, although whether this has been since June 2014, or since March or April 2016, or since the [news] report is unclear. On a number of occasions the reason given for why [Mr A] has not suffered harm is that he was not in, or did not go back to, the village. But [the applicant] could provide no reason why he or his father should return to [Village 1]. He has not lived there since 2009. His property and home are in Tieling city, where he has lived for more than 10 years, his son lives and goes to school, and he says he will return. [The applicant] also said ‘as long as my father stops appealing against them I believe they might be safe’, but [Mr A] has not petitioned anyone for any reason since 2016.

13. [The applicant] claimed that his family are living with great fear and they cannot survive without him. He said he may not suffer significant harm, but also said that it would be impossible for him to let go that all the family property was confiscated. If the government then retaliates it would be impossible for him to stay inside the Tieling apartment the way [Mr A] has because he needs to work, have a social life, and support the family. This will make it easy for them to locate him. He may not be able to work properly or live a normal life. He said what happened to the uncles is not as serious as Tiananmen Square, but they have been detained to stop others from pursuing the poisoning of the corn. He would not just let things go, but would appeal and pursue the matter to the end, even though he knows he would be under threat and suffer harm.

14. As best the Tribunal is able to determine [the applicant]  is claiming that should he be returned to China he fears he will suffer imprisonment (and possibly some other unspecified harm) from either Faku county or a person with an interest in the land confiscation in [Village 1]. He will suffer this harm because he will pursue the compensation for the [Village 1] land (and possibly the 20 mu), although he told the Tribunal he thinks going to the county, or even the province, is pointless. He will also suffer the harm for similar reasons to why his uncles were jailed, that is, either in relation to the confiscation and poisoning of the 20 mu or reporting it to the municipal news. Finally, there appear to be generalised claims that he will suffer harm because someone is looking for [Mr A].

15. In considering whether these claims raise a well-founded fear of persecution or real risk of significant harm, the Tribunal has concerns about whether [the applicant] has been a truthful witness. Therefore, it has rejected the vast majority of his claims. In particular, it does not accept that he or his family have, or will, suffer any significant or serious harm at all.

    Credibility

16. In determining whether [the applicant] is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of his claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal is also 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.[1] 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.[2]

    [1] MIMA v Rajalingam (1999) 93 FCR 220.

    [2] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

17. The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either ‘well-founded’ or for the reason claimed. Likewise, that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[3] 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 him in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to adequately advance.[4]

    [3] 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

    [4] Sun v MIBP [2016] FCAFC 52 at [69].

18. The Tribunal does not consider that things like minor changes in dates over time, details omitted from written claims, or mistakes and omissions from an applicant’s personal history on the application form would, on their own, undermine an applicant’s credibility. However, when the evidence set out here, some of it on critical matters, is considered cumulatively the Tribunal finds these things together take on more significance and so have been given some weight. For the reasons set out below the Tribunal finds that [the applicant] is not a person of credit and it cannot feel secure in believing his evidence.

    The 20 Mu of Land Bought by the Relocated Farmers

19. The Tribunal has concerns about the evidence surrounding the situation with the 20 mu of land purchased by [the applicant]’s parents after they lost the farmland in [Village 1]. It contained inconsistencies and omissions that undermine both the claims and [the applicant]’s credibility generally. The Tribunal has given these deficiencies particular weight because they involve the only claims of truly substantial harm and to people closely related to [the applicant], not just neighbours. In these circumstance the Tribunal would expect his evidence to be detailed and consistent given the claim [Mr A] would have suffered the same fate as the uncles had he been there, as will [the applicant] if returned to China.

20. First, [the applicant] gave inconsistent evidence about when his parents obtained the 20 mu of land. At the interview held in 2015 he told the delegate they ‘subcontracted’ the land ‘this year’. He confirmed they ‘rented land’ in the neighbouring village ‘this year’ but there was a drought so it did not produce anything. [The applicant] also told the Tribunal that the land was ‘purchased’, not rented or subcontracted, in 2015 as a source of income, but there was a drought. However, at a different point in the hearing he said the land was purchased in June 2016, not 2015. Later, he said [Mr A] bought the 20 mu from the government before July 2014 and that is why his parents did not have money for his studies. The fact that his parents bought land was not mentioned in his application, made in September 2014, as the reason they could not provide tuition. The application states that having lost the land in [Village 1] they had no source of income and that is why he did not ask them for money.

21. When these concerns were put to [the applicant] he responded that in China people do not have ownership of the land but usage rights. So the lease and purchase of land have the same meaning. He stated that he does not think there is a big difference between the two expressions. In that response he also said that his parents had bought the land in 2015. This does not explain the differences, often given to address other concerns, in the dates for the acquisition of the land.

22. Second, evidence about where the money for the land came from was problematic since initially [the applicant] said [Mr A] had no money once the land in [Village 1] was confiscated. He then said his parents had savings they used to purchase the 20 mu, although he also said his parents used those savings to support themselves, which is why he did not need to support them.

23. Third, initially [the applicant] said that after the government took the 20 mu the family learned that it was linked to the village election. When the Tribunal asked how it was related to the election [the applicant] was unresponsive saying ‘a few months before this incident there were incidents of the election of the village leaders or something like that. So it was only one or two days after that that my father learned the whole process of how has everything been going’ and that in March 2016, after the election, the government was trying to do something to them because they did something to interfere with the government. When the Tribunal pressed him on why the confiscation of the land and the election were connected he then said they were not related, they are two separate incidents.

24. Fourth, there were inconsistencies about who was responsible for the circumstances surrounding the 20 mu and whether it was resolved. The submission and [the applicant] at hearing said that the [news] went to the town government to talk to the people responsible, but they were all avoiding the television reporter. However, he also said this was something that happened at the county level and the farmers reported it to the municipal television [station]. Further, initially he said ‘after that everything seemed to be reconciled’. He then said the reporter said there would be follow up reports, but his uncles were jailed and there was no follow up which brought an end to the incident without it being resolved.

1. Fifth, there was some discrepancy in the evidence about the seeds and fertilizer for the 20 mu in 2016. [The applicant] told the Tribunal that the family got the seeds and fertilizer on credit so they would pay a bit more when the corn was harvested. However, in the submission it states both that [Mr A] bought the seeds for [the applicant]’s grandmother and that they borrowed the seeds from other people.

2. Sixth, [the applicant] told the Tribunal that his uncles were not involved with the 20 mu or the news report. They were arrested because their fathers, who reported the situation to the municipal news, are too old to be arrested. This claim arose as evidence that [the applicant] would be persecuted, in part, because of [Mr A]’s actions. But the submission states it was an uncle who told the reporter about the ‘earnest money of RMB5,000’. Also, it does not say ‘the grandfathers’ (his grandmother’s brothers who farmed the land with [Mr A] on her behalf and the uncles’ fathers) called the news. [The applicant] refers only to ‘a villager’.

   Tuition

3. The claims about why tuition for [the applicant]’s study ran out were contradictory and confused. [The applicant] claimed he borrowed money from an aunt and friends to get his student visa, but it was insufficient to pay the tuition after six months. It was his intention to go to his parents but the farmland in [Village 1] had been taken so they had no money. However, he also told the Tribunal that his parents had savings. When the Tribunal asked why then they did not have money for his tuition he said the savings had already been used to buy the 20 mu so his parents could support themselves. But he had already told both the delegate and the Tribunal that they purchased the land in 2015. When the Tribunal put to [the applicant]  there appeared to be an evolving story about his parent’s finances that may undermine his credibility, he said in China there are funds and once you purchase them you cannot take the money away until a specified time. He also referred to a RMB50,000 fixed term facility that became available in 2015. This is a third explanation for the funds for the land, that the parents had money in a fixed term deposit that was inaccessible in July 2014, not mentioned in the application, to the delegate, or at the hearing. [The applicant]’s changing evidence, as he adjusted it to fit the Tribunal’s questioning, undermines his credibility.

   The Apartment in Tieling City

4. There was confused and contradictory evidence about when [Mr A] and [Ms B] moved to the Tieling apartment. This undermines [the applicant]’s credibility.

5. First, in his application [the applicant]’s parents moved to the Tieling apartment in June 2014. He told the delegate that they moved out and the government demolished their property in June 2014. This is also what he initially told the Tribunal. However, he first told the delegate that they moved to the apartment when he came to Australia about a year and a half before the interview, that is, in January 2014. He told the Tribunal [Ms B] has been taking care of [Master D], who resides at the Tieling apartment, since he and his wife left for Australia in January 2014. But he later gave contradictory evidence saying [Mr A] moved to the Tieling apartment after he complained about the compensation in June 2014.

6. Second, [the applicant] claimed the government allowed his parents to continue farming the [Village 1] land after it was acquired, but then took it in June 2014. Therefore, he said, they stopped farming that land in May or June 2014. But he told the delegate they had moved to the Tieling apartment in January. He then told the delegate that when [Mr A] first arrived at the apartment he was still farming the [Village 1] land. He travelled back and forth to the village and [the applicant] was not sure if he would settle down in the Tieling apartment, saying everything has to be done manually in China. But, when asked by the delegate if his parents returned to the village each day to farm [the applicant] said ‘no’. When asked if his parents travelled from the Tieling apartment to work on the farm he said ‘no’. When asked who was farming the land from January 2014 until it was taken by the government in June, he said, ‘the land was always unattended’.

7. It was put to [the applicant] that it was inconsistent to live in the Tieling apartment from January 2014 while farming the land in [Village 1] until May or June 2014 without travelling the [number] km to work. He said when his parents had to work on the farm they went to the farm, ‘I didn’t say they always lived [in the Tieling apartment].’ He also said when the farming got busy [Mr A] returned to the farm and [Ms B] stayed in the Tieling apartment taking care of [Master D], however, this is not what he told the delegate. In his written response to the Tribunal [the applicant] changed his evidence stating that he ‘did not make a clear statement about my parents farming’. They were farming on the land bought in 2015, being the 20 mu in the neighbouring village, not on the land confiscated by the government in [Village 1].

   Financial Support of the Family

8. While it is only a minor claim, because it goes to larger issues the Tribunal has significant concern about [the applicant]’s evidence on the family’s finances. It found this to be inconsistent and implausible.

9. First, at the interview [the applicant] said that when his parents lost their farmland they lost their livelihood and the family could not support themselves. This is consistent with his application which states when they lost the [Village 1] land they lost their source of income and there was no money for [the applicant]’s tuition. He told the delegate that because his parents did not receive compensation when the government took the property and farmland they relied on him to support them. However, when asked how long he had been supporting them [the applicant] did not answer and later in the interview said he gave his parents money in 2014, but not in 2015. At the time of the interview in 2015 he was only supporting [Master D].

10. Second, at the hearing [the applicant] initially said his parents do not work and he supports everyone. He then told the Tribunal his parents support everyone through their savings and he only pays for [Master D]’s schooling. However, he also said [Mr A] got no compensation for the land in [Village 1] and lost all their savings on the 20 mu of land, so [the applicant] had to stop going to school and earn a living to support everyone.

11. Third, when the Tribunal queried how [Mr A] bought the 20 mu of land since [the applicant] had said his family had no money and he supported them, he said he supported them after they spent their savings on the land. This was inconsistent with when he told the Tribunal they used their savings to support everyone. However, it is also contradicted by his evidence that they bought the land in 2015 and he supported them in 2014, but gave them nothing in 2015. [The applicant] then said ‘actually I only pay for the tuition of the child, financially they are able to support themselves’. When the Tribunal pointed out that his application stated they had no source of income and in the interview he had said he supported them [the applicant] said only, ‘I told the delegate they had a piece of land.’ [The applicant] also told the delegate there was a drought and the land produced nothing in 2015.

12. When the Tribunal put to [the applicant] that there were inconsistencies in his evidence about the support of his family, he said his parents had a little income after ‘some natural disasters’, by which the Tribunal assumes he means the drought. He said the income for farmers is very little particularly after natural disasters and that is why he told the Tribunal he was supporting them. This does not explain the inconsistencies.

13. In his written response to the Tribunal [the applicant] stated that ‘during and before the interview’ his parents had almost no income so he sent them money. One month after the interview a fixed term financial product worth RMB50,000 bought 15 months earlier became available. In 2015, they purchased the 20 mu of land and ‘supported themselves with this money and the land compensation fee’. Therefore, in the hearing, ‘I said that my parents was able to maintain their life and I just send money to my son for education’.

14. This does not explain the inconsistencies in [the applicant]’s evidence at the interview or at the hearing about whether and when he supported his family. Nor does it explain why he told the delegate he did not support them in 2015 when the RMB50,000 that ostensibly relieved him of that obligation did not mature until after the interview. The RMB50,000 also appears to bring into question his claim the 20 mu took all their savings so he had to support them.

15. However, of most concern is the claim that the fixed financial facility was bought 15 months before it matured in October 2015, one month after the interview. This would place the purchase of the facility in July 2014 when [the applicant] claims his parents had no money because their only source of income had been confiscated without compensation. [The applicant] now claims that even though they knew they would lose their land, their only source of income, in November 2013 and it was confiscated in June 2014 they invested sufficient funds to give them RMB50,000 after 15 months in July 2014. It seems this means they knowingly left themselves without any support or the funds for [the applicant]’s continued study in Australia despite borrowing RMB400,000 for that study to begin. On top of the many inconsistencies and contradictions, the Tribunal cannot help but find this implausible, particular given [Mr A] and [Ms B] had the care of their six year old grandson.

    Compensation for the Acquisition of Farmland

16. [The applicant] gave inconsistent evidence about compensation for the property and farmland in [Village 1]. His fears of harm because he will petition for compensation for the land is also inconsistent with the country information and evidence he gave to the Tribunal. This undermines the credibility of his claims and his truthfulness generally.

17. First, [the applicant] told the delegate and the Tribunal that his parents did not get any compensation for the [Village 1] land. However, in the application it states that [Town 1] ‘only gave small amount of compensation.’ When this was put to him [the applicant] said a small amount is like nothing. In his written response [the applicant] claimed the compensation fee for land requisition was approximately RMB1 million in the neighbouring counties. However, his parents only received around RMB40,000, which is a comparatively small amount. The difference was so large that ‘we had to apply for a petition to the superior government’. The Tribunal does not accept this explanation. [The applicant] clearly told it at the hearing that the compensation was being spoken about by everyone and should have been paid in a lump sum or instalments over 10 years, but was never paid.

18. Second, [the applicant] spoke to the Tribunal about the town government not giving his parents compensation, but in his application he states Faku county did give the funds to the town. This was not raised with the Tribunal. When asked to explain this omission he said he was talking about Faku county and not the town or village because he was trying to condense the points. The Tribunal does not believe this explains the omission at the hearing.

19. Third, [the applicant]’s claim that he will be jailed or persecuted if he goes back and petitions for compensation is inconsistent with his evidence about others who petitioned and the country information. He said that Faku county is looking for [Mr A] for attempting to petition and if he returns he too will petition the Faku government for the compensation. They will then retaliate by putting him in jail like they did his uncles. But they were jailed because their fathers reported the pesticides to the media. [The applicant] never claimed he or his father did, or would, call the press. He only claimed he will petition the county. When other villagers petitioned they were not jailed. When put to [the applicant] he said that ‘at that point’ the villagers were obedient about leaving. But his family were also obedient about leaving, since the property was demolished and repurposed, and they now live in Tieling city. Further, there is independent information (see footnote 5 below) that indicates that petitioning, including for compensation, is so common it runs into the millions every year.

    Looking for [Mr A]

20. [The applicant] gave inconsistent and developing evidence about who is looking for [Mr A] and why they cannot find him. This is a central claim going as it does to whether [the applicant] will be harmed because they cannot find [Mr A] should he return to China. Therefore, the confusion in his evidence undermines the veracity of those claims and his credibility.

21. First, [the applicant] gave varying reasons why the Chinese government does not know where his family lives. Initially he said they did not belong to the same city, so ‘they shouldn’t be able to know.’ He then said it is just some people in the government, so it is not possible for them to use the government structure to learn [the applicant]’s address. Finally, he told the Tribunal the Tieling apartment is in his wife’s name despite having told it at the beginning of the hearing that he had purchased the apartment.

22. Second, the claim [Master D] needed to change kindergartens to avoid being found seems inconsistent with other claims made by [the applicant]. For instance, if as claimed, [the applicant] and Ms [C] owned the Tieling apartment since before [Master D]’s birth, he has always lived there and it is the address the government has registered for him. If the people looking for the family do not have that address, why would they be able to find [Master D]’s kindergarten. When this was put to [the applicant] he said a teacher told [Ms B] that there is always someone visiting [Master D]. He then said his mother was just being cautious in case someone was looking for them and it was speculation, ‘not for sure’.

23. Third, for most of the hearing [the applicant] claimed it was the county who were looking for his father, but said they could not find him because he did not go back to [Village 1]. However, he later corrected himself and said it was someone in the Faku government whose interests were affected, not necessarily the county government itself. Someone close to the town and village, and in particular close to [Town 1] because they took the compensation given by Faku to give to the villagers for the [Village 1] land. He said this person may not deal with everything through government processes. He or she could have underground people. However, [Mr A] is also being sought about the [news] report and [the applicant] said his uncles were arrested by Faku using township police. For the county to have sufficient involvement to jail the uncles, one indefinitely, is inconsistent with claims the county is not involved in searching for [Mr A] and it is just a person who works for them.

24. Fourth, the claim that the person looking for [Mr A] does not have access to his address is inconsistent with other claims made by [the applicant]. On the one hand he claimed the person is powerful enough to prevent [Mr A] and others complaining to, or even entering, the county office, know who drove [Mr A]’s taxi and retaliate, stop people getting bus tickets, and stalk [Master D] at four kindergartens. On the other hand he or she does not have the power to access government records showing the address were [Mr A] and [Ms B] relocated. The person has the resources to intimidate villagers from petitioning to the Faku government, but does not have the resources to intimidate them into tell him [Mr A]’s address. His or her interest in the relocation of families was such that [Mr A]’s election as village leader was untenable, requiring [Town 1] fix them, but the person cannot access the records of where those families relocated. Even if his parents did not tell the government where they relocated the person after them is no doubt aware of [Mr A]’s only son. There will be any number of government records linking the family to the Tieling apartment, possibly even [Master D]’s school records showing it as his address and [Ms B] as his guardian. This is all inconsistent with this person not knowing where to find [Mr A] if he was of interest.

    Other Claims

25. There are issues with [the applicant]’s claims that he fears going home because he has nowhere to live and he will lose face because his wife has left him that also undermine his credibility.

26. First, when the Tribunal had discussed the confiscation of the land and his father’s 2016 activities it asked [the applicant] if there was anything else he feared and he only talked about the harm he may suffer if he petitioned. He did not raise these claims with the Tribunal.

27. Second, at the interview and at the beginning of the hearing [the applicant] gave evidence that his parents and son live in the Tieling apartment. Only when the Tribunal raised with him his claim about having nowhere to live did he say that his grandmother also lives in the apartment. When this was put to him he said only that he made a mistake. In his written response he stated he did not mention his grandmother at the interview because she was living with his aunt’s family. But his cousin got married and there was no longer room so she had to live with his parents. This does not explain why [the applicant] did not mention his grandmother when the Tribunal discussed the makeup of his family, where they lived, and who lived in the apartment. Nor does it explain why he claimed in his application and before the delegate that there was no room when she was still living with his aunt. It also does not explain why [the applicant] was unable to explain this to the Tribunal when it asked him the question at the hearing.

28. Third, when the Tribunal raised the claim about his wife, [the applicant]’s evidence was unclear and he said he was just mentioning it, ‘that’s all’. He did not expand on the harm he might suffer or make any claims other than those made in the application and at the interview which are vague and lack detail.

    Other Matters

29. There are a number of claims, when viewed together, that appear implausible to the Tribunal. The Tribunal does not generally place weight on its mere opinion of whether a claim seems probable, particularly if there might be any other explanation regardless of how unlikely. However, when the sheer number of issues below are viewed in conjunction with the considerable inconsistencies and omissions pointed out above, it has factored them into its decision about [the applicant]’s overall credibility.

30. First, the Tribunal finds evidence about the sale of the 20 mu of land implausible because of where [the applicant] claims it is located. He did not specifically say that it was [Town 1] who sold the 20 mu to the group of relocated farmers. However, when asked, he said [Town 1] does not have [Mr A]’s address from the land purchase because it was not necessary to provide it. He did not say the land purchase had nothing to do with [Town 1] because it was bought from a different town. Comparably, when asked he did say Faku does not have a record of [Mr A]’s registered address because Tieling is a different city. So it would appear [the applicant] claims [Mr A] and the others bought the 20 mu of land from [Town 1]. But he also told the Tribunal the land is [number] kilometres from Faku county in Shangyan city. This raises a question how [Town 1] could sell [Mr A] land in a village that was not in the same county, let alone in their town.

31. Second, [the applicant]’s evidence was often evasive and confused. For instance, when asked what he planned to do on return that will cause him harm he did not answer the question. Instead, he said ‘it was not the uncles’ fault’ because they did not report ‘it to the government’, it was their fathers who ‘reported it’. But it was impossible to jail them because they are elderly and if they died in jail the government would be held accountable. Finally he claimed ‘the same thing will happen to me’. This makes no sense since [Mr A] was not involved in reporting the poisoned corn, and the county is looking for him not someone else to punish because he is too old. It was not until the Tribunal noted the family could have gone higher in the government if they knew the problem was a corrupt officer, not the county, that he answered the question. Then he said that is what he will do, because he has been influenced by Australia and believes anywhere he goes someone will take care of him.

1. Third, [the applicant] claimed his father would have been arrested with the uncles, but when asked why, if the county is looking for him, [Mr A] has not suffered any harm he said it is because [Mr A] has not returned to [Village 1] . However, the 20 mu is not in [Village 1] and the county knows he no longer lives there since they demolished the property requiring the family to relocate. [The applicant] also said it is because [Mr A] does not leave the Tieling apartment. It is unclear why this assists [Mr A]. If the government knows he is in Tieling city for reasons above they would logically know where. If they do not, surely it is safe for him to leave the apartment. It is implausible that the government is randomly searching outside Faku county for him so he must hide inside to remain unfound and safe.

2. Fourth, a person who is in fear of his life or freedom is able to tell the Tribunal with some degree of detail what he fears, but [the applicant] could not. He told the Tribunal an elaborate and unfortunate story, however, none of it involved [the applicant] and it did not initially include serious or significant harm. When this was pointed out he elaborated the story to involve harm to other people, like the taxi driver and uncles, that he presented as evidence he too would be harmed because of [Mr A]’s actions. The Tribunal put [the applicant] on notice that it might not believe his claims because they appeared to evolve over time.

3. For instance, [the applicant] claimed that the taxi driver’s supermarket was attacked because they did not want anyone reporting to the county. But the driver did not, and was not trying to, report to the county. He just owned a taxi business. It is difficult to believe that the government would not only retaliate against the taxi driver, and not [Mr A], but they would do so against a different business. It would seem a more effective deterrent to make an example of the taxi business rather than a supermarket. Also, since [Mr A] did not even get into the office it is unclear how they knew about the taxi driver. When this was put to [the applicant] he only said it was in their interest, and when [Mr A] ran for leader he was aware the relocation involved lots of interests. When the Tribunal pointed out he was being unresponsive and asked him to address the question, he said [Mr A] did not go back to the village so they could not find him. He then addressed the Tribunal’s concern that they had not attacked the taxi business by adding the claim that they beat the taxi driver as a warning so no one would dare take his father to the county again.

4. The timing of the claims about the uncles is also of concern. Although initially the only claims were of the [Village 1] property, [the applicant]  did bring to the hearing evidence, in the form of pictures, related to claims about his father’s 2016 activities and the 20 mu of land, but not the uncles’ arrest. After extensive discussion of his claims to fear persecution he said he had told the Tribunal all his claims. But these did not relate to [the applicant] personally and no harm had come to his father. It was, essentially, when this was raised that he said his uncles were taken to jail. This claim then also evolved. Initially the uncles were part of the 20 mu cooperative and responsible for the news report. But when the Tribunal said it could not identify how this might relate to [the applicant], they were the children of the people in the 20 mu cooperative and their fathers were responsible for the news report. When the Tribunal explored why confiscation of the 20 mu affected [the applicant] he said, ‘I will suffer all of that harm. I will definitely have the same treatment as my uncles’.

5. During the course of its extensive discussions about the search for [Mr A] the Tribunal suggested that if they cannot find [Mr A] they will not find [the applicant] so he too will be safe in Tieling city. He then changed this aspect of his story saying it is not that they were unable to find his father, it was just not the ‘proper time’. This is a different explanation from those given before the Tribunal made its point, being [Mr A] is safe and they are going after others because he is not in the village, they have no way of knowing where he lives, and no one in the village knows or will give them the Tieling address.

   Findings of Fact on Relevant Matters

6. The Tribunal has found [the applicant] is not a reliable witness and rejects his evidence. However, despite its concerns about his credibility, it is willing to give him the benefit of the doubt about the land appropriation in [Village 1]. Based on independent information it accepts that it is not unlikely his family’s rural property was expropriated and demolished by the government for development purposes in 2014. It is also possible that some of the farmers in the village petitioned against the resumption of the land and/or the compensation paid.[5]

   [5] According to the State Bureau of Letters and Calls (the national department responsible for local petitioning offices), an estimated four million disputes over expropriated land and property demolitions occur every year: DFAT Country Information Report – China, 21 December 2017, 3.75-3.78; Chuang, Julia, ‘China’s Rural Land Politics: Bureaucratic Absorption and the Muting of Rightful Resistance’, The China Quarterly, Vol. 219, September 2014, pp. 649-650, 666-667.

7. The Tribunal accepts that his parents were informed they would lose the property and farmland at [Village 1] in November 2013 and the land was then confiscated and demolished. Although it does not necessarily believe this took place as late in 2014 as claimed, this does not impact the Tribunal’s other findings. The Tribunal accepts that [Mr A] and [Ms B] moved to the Tieling apartment in January 2014 when [the applicant] and Ms [C] travelled to Australia, because that is when someone was required to care for [Master D]. Even if the [Village 1] land was not yet repurposed, the Tribunal does not believe that they continued to farm it after that date. It believes the family live on the land compensation, the parents’ savings and its investment, similar to that claimed by [the applicant] in his written response, and money sent back by [the applicant] from Australia.

8. The Tribunal accepts [the applicant]’s evidence about his education and employment history which has been consistent and sufficiently detailed to be convincing. It further accepts that he owes money to friends and family for his study in Australia. It is willing to find that he is separated from his wife and does not know where she is, although it does not feel confident it can accept his reasons why they separated. However, again, there is no claim that this is relevant to his case so it does not affect the Tribunal’s findings.

9. In light of its finding that [the applicant]’s evidence is not to be believed, the Tribunal rejects all the other claims. [The applicant] has significant education and experience as a[Occupation 1]. Based on his lack of credibility it does not believe him when he says that he will not be able to upskill and master any advances in the relevant computer technology. The Tribunal does not accept that he will not get another job if he returns to China.

10. The Tribunal does not accept that he will suffer any harm because he owes friends and relatives money, nor did [the applicant] make that claim. He said no more than that they are asking for the money, and that is no doubt true, but there is no indication they intend to cause him serious or significant harm for that or any other reason.

11. In light of his evidence about the claims related to his separation from Ms [C] the Tribunal finds that he will not suffer any harm, whether it be losing face, the humiliation of his ethnic group, or otherwise, because his wife left him.

12. The Tribunal rejects that [the applicant]’s grandmother lives in the Tieling apartment because of the omissions in his evidence on this issue and his credibility generally. It finds there is sufficient room in the apartment for [the applicant] and he will not be without a place to live.

13. The Tribunal does not believe that [the applicant]’s parents did not get any compensation, or even that they only received a small amount of compensation, for their land in [Village 1]. Although some farmers may have petitioned the government over the confiscated land, since this is common, the Tribunal does not accept [Mr A] or [Ms B] were among them. If they were, [the applicant] would not have been such a poor witness and his evidence about the family’s circumstances in 2014 would have been consistent and believable. The Tribunal does not accept that his parents petitioned any level of government with or without other farmers and it rejects all the claims of harm that flow from those claims, including that anyone is looking for [Mr A]. The Tribunal rejects that [the applicant] will pursue the compensation issue should he return to China, or even that there is any compensation issue to pursue with the county or anyone else, the family having been given adequate compensation for the land.

14. All the claims related to corrupt practices in [Town 1] and [Village 1], including that [Mr A] participated in a 2016 election for the leader of the village, that it was fixed because someone else got on with an influential person in the Faku government, and that [Mr A] went to report it or anything else, is rejected. As is all the related harm to [Mr A], the family, the taxi driver, or anyone else. The Tribunal rejects that [the applicant] will be persecuted because he, [Mr A], or anyone else knows, or reported, that the government or any government officers are corrupt, including, but not limited to, corruption related to cut trees or a damaged road.

15. The Tribunal does not accept that [the applicant]’s parents or any relatives bought, rented, subcontracted, or farmed 20 mu of land in a neighbouring village or anywhere else after leaving [Village 1]. It rejects all the claims that flow from that claim. It does not accept that they owned 20 mu of land that was confiscated without compensation or where corn was poisoned. They were not involved in reporting such an incident to the municipal news and no one related to, or known to, [the applicant] was jailed for that or any other reason. The Tribunal rejects that [the applicant] will, or has any reason to, pursue anything claimed in relation to the 20 mu, or that he will suffer any harm for that or any other reason.

16. The Tribunal rejects that anyone is looking for [Mr A] or anyone else in the family, or that he or anyone else is hiding in the Tieling apartment or anywhere. It rejects that anyone will harm [the applicant], anyone in his family, or anyone that he knows for any reason. For all the reasons above, and in light of my finding that [the applicant] has been untruthful and is not a credible witness, I reject all the various claims made and find that he will not suffer any harm for any of the reasons put forward or at all should he return to China.

17. The Tribunal has considered the photographs provided by [the applicant]. It accepts they are of demolished houses, cut trees, and a damaged road. But it has no way of knowing when or where the photographs were taken or even being sure, in some cases, what they are intended to evidence. It has also considered the video and accepts it is a genuine [news] report and such an event may have happened. But, the Tribunal only has [the applicant]’s assertion that he is related to, or even knows, the people in the video or that it relates to a piece of land owned by [Mr A]. In light of its finding above that [the applicant] thoroughly lacks credibility and has misled the Tribunal, it finds his credibility has been so weakened that the well has been poisoned beyond redemption and it cannot be satisfied with the corroborating evidence in the photographs or the video. As such it has given the photographs and video no weight as verification of his claims.

    Refugee Criteria

18. Australia is a party to the 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.

19. There are four key elements to the Convention definition: an applicant must be outside his or her country of nationality, an applicant must fear serious harm that is the result of systematic and discriminatory conduct, that persecution must be essentially and significantly for one of the Convention reasons, and not only must an applicant have a genuine fear, but the chance he or she will suffer that persecution must be a real.

20. Relevant to this case, [the applicant]’s fear of persecution must be a ‘well-founded’ fear. This adds an objective requirement to the need for [the applicant] to, in fact, have the fear. A person has a ‘well-founded fear’ of persecution if he or she holds a genuine fear founded upon a ‘real chance’ of suffering serious harm for a Convention reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. However, a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

21. Based on its findings above the Tribunal finds [the applicant] has no real chance of persecution, or any harm, should he be returned to China. Therefore, it is not satisfied that [the applicant] has a well-founded fear of persecution for a Convention reason in the foreseeable future.

    Complementary Protection Criteria

22. Section 36(2)(aa) requires an applicant to have a ‘real risk’ of suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[6]

    [6] MIAC v SZQRB [2013] FCAFC 33.

23. Therefore, for the reasons above, the Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to China, there is a real risk he will suffer significant harm.

    CONCLUSIONS

24. 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 s.36(2)(a).

25. 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).

26. Accordingly, [the applicant] does not satisfy the criterion in s.36(2)(b) or (c).

    DECISION

27. The Tribunal affirms the decision not to grant the applicants a protection visa.

    Mireya Hyland

    
    

    Member