1514690 (Refugee)

[2018] AATA 1419

1514690 (Refugee) [2018] AATA 1419 (6 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1514690

COUNTRY OF REFERENCE:                  China

MEMBER:Angela Cranston

DATE:6 April 2018

PLACE OF DECISION:  Sydney

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

Statement made on 06 April 2018 at 3:47pm

CATCHWORDS
Refugee – Protection visa – China – Imputed anti-government opinion – Land resumption – Inadequate compensation – Petitioning local authorities – Police violence – Detentions

LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J-5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

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 20 October 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of China, applied for the visa on 28 November 2014 stating as follows:

   In late 2011, the government wanted to build new road in our village. Many houses needed to be demolished.

   Our family home was one of the houses to be demolished for a big road. Our family were not happy for the money they compensated. The local government was paid a lot from the road company.

   We were offered very little money. The construction company paid huge money to the local village authorities. When we knew the truth, I and many villagers went to the local government asking our more money from them.

   They denied. We kept asking them. Finally they got local police involved. The police were everywhere around the village government office area.  We could not get in and talk to the officials.

   We all became very angry. One day, we united and arrived the area just in front of the office building asking someone to come out to explain to us about the money they received from the road construction company.

   Late we saw more police came. They ask us to leave, no one moved. Then they began to drag us. It was so violent, many of us got into a big fight. When I was helping one of my villagers to get away from the police, I was hit by the two police men.

   It was very violent. My family worried about my safety. They asked me to run away from home.

   I left home to avoid to be arrested by the local police. I am very scared to go back.

3. The delegate refused to grant the visa and the applicant applied for review.

4. The applicant appeared before the Tribunal on 2 March 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. At hearing, the applicant stated that he came to Australia in July 2014 on a [temporary] visa that ceased after three years. He also stated he had not applied for any other visa since he had been in Australia. When asked why he thought he was at the Tribunal he initially did not answer but subsequently stated that he had applied for a bridging visa. When asked if there were any reasons why he could not return to China he stated there was no home for him to go back to as his family had gone elsewhere because his place was demolished by force and his wife and child had left.

6. The applicant stated that his last address in China before he came to Australia was [Street Address 1], [in Town 1], Gaocheng City, Hebei where he had lived for six years before he came. He could not remember the house number. He also stated the house was demolished but he could not remember when.

7. The applicant stated a friend’s friend had assisted him to write his statement accompanying his protection visa and the English statement was what he had told him. He also stated he had not told his story to anyone else.

8. The Tribunal asked what happened when he found out his house was to be demolished and he stated some people were arrested and he and other people from the village escaped and left the village in 2014. The Tribunal put to him that what he had just said may not be consistent with his written statement which was that in late 2011 the government wanted to build a road and demolish houses. The Tribunal also put to him that in his Australian [temporary] visa application he had stated [Street Address 1], [in Town 1], Gaocheng City, Hebei was the last address he had lived at in China. The Tribunal also put to him that he had stated in his protection visa application that he had lived in [Town 1] from [year] up until he came to Australia which did not suggest that his house had been demolished. The applicant did not wish to comment. The Tribunal also put to him that his claim was very similar if not exactly the same as another protection visa applicant. The applicant did not comment. The Tribunal also put to him that the Department of Immigration said they talked to him on 7 January 2015 and they said he could not remember what visa he had applied for or his claims and he thought he had applied for a [temporary] visa. The applicant has not comment

9. Following the hearing, the Tribunal sent the following letter pursuant to section 424A:

   Interview with Department on 7 January 2015

   At interview on 7 January 2015 it is recorded in writing that you stated that you could not recount which visa you had applied for and could not recount your claims and that you thought you had applied for a [temporary] visa.

   This is relevant because the Tribunal may find this inconsistent with your claims in your protection visa application that you lodged on 1 December 2014 and which state that you left China to avoid being arrested by the local police and that you are scared to return to China.  If the Tribunal finds that your answers are inconsistent, then the Tribunal may not find you credible and subject to your comments, would affirm the decision under review. 

   Your [temporary] visa application

   Your [temporary] visa application lodged on 3 July 2014 states that your residential address is [Street Address 1 with house number], [in Town 1], Gaocheng City, Hebei.

   This is relevant because it may be inconsistent with your statement in your protection visa application in which you state that in late 2011, the government wanted to build a new road and your home was one of the houses to be demolished. It may also be inconsistent with your evidence at hearing which was that your last address before you came to Australia was [Street Address 1], [in Town 1], Gaocheng City, Hebei where you lived for six years before you came but later you stated you left that village in 2014.

   If the Tribunal finds your answers inconsistent, the Tribunal may not find you credible and subject to your comments, the Tribunal would affirm the decision under review.

Your statement

You statement is almost identical to the statement of another protection visa applicant before the Tribunal (AAT Decision [number])
This is relevant because if the Tribunal finds that your statement is almost identical to the statement of another applicant before the Tribunal then subject to your comments it would not find your credible and would affirm the decision under review.

1. The applicant responded as follows:

   About protection visa

   At the interview on 7 Jan 2015 when I attended the interview of the immigration department, I stated that I could not recount which visa I had applied for and could not recount my claims and that I thought I had applied for a [temporary] visa.

   On 1 December 2014, lodged protection visa which stated that I left China to avoid being arrested by the local police and that I am scared to return to China.

   Question two

   About the problems of my visa application

   My [temporary] visa application lodged on 3 July 2014 states that my residential address is [Street Address 1 with house number], [in Town 1], Gaochen City, Hebei.

   However, in protection visa application, I stated that in late 2011, the government wanted to build a new road and my home was one of the houses to be demolished.

   In the Tribunal hearing, I stated that my last address before I came to Australia was [Street Address 1], [in Town 1], Gaocheng City, Hebei where I lived for six years before coming to Australia.

   Based on the above information, the Tribunal finds the answers inconsistent and is doubt about my credibility

   My explanation to the question read as follows:

   Firstly I would like to emphasise the fact that I am a person of introvert and poor at oral expression. I have limit education, with little English. I have no more friends or less social contacts in Australia and experience economic constraints. This is why I was not getting custom to the strange environment in the early stage when I arrived. And because of that I had no privilege or condition to invite an agent representing my visa application. As a matter of fact, my application had completed through this and assistance of my friends friend. I was told that he had been in Australia for a long time and knew about how to handle the visa issue. So I had to rely on him for help. I told him what actually happened in my life and answered his questions. In respond, he ensured me that he would consider my background and information provided to assist my visa application accordingly. To be frank, I had no idea about the application details. I thought he would meet his commitment to reflect my situation and put everything necessary to the department so I left everything for him dealing with my visa application and felt a bit of relief.

   During the interview I was asked what kind of visa I applied. I answered a [temporary] visa. The reason for my answer is that I understood you referred to my entry visa for Australia, a [temporary] visa I hold. Now I realise I must have misunderstood your question due to my limit education and poor comprehension. In addition to it, perhaps, I was too nervous to judge correctly. In fact I want to apply a protection visa because I have experience with oppression and unfair treatment by government when I was in China.

   During the interview, I tried to respond to your questions according to the fact and my memory however I lack the knowledge for the details of my visa application lodged. So I beg your member’s good understanding and compromise in this regard. I don’t know how to explain the inconsistent mentioned in your letter but one thing I want to point out is that the person who offered me the help did mention about two different visa categories, the [temporary] visa and protection visa but he was uncertain about which one suits me the best. He told me there were two options for me but he needed time to ponder it. The fact is I was unable to reach him later because his mobile phone was disconnected. Consequently I have no idea about how my statement for visa application was described and I have never been given a written copy of it. What was worse, I can’t read any English so I can do nothing about my application indeed.

   The two residential addresses mentioned in AAT’s letter are actually the same one and in comply with my Chinese identification card, the only official fixed residential address. As to my real residential address, I have already illustrated and explained for it in hearing. I have no idea why my application form indicates my residential address the same over the past six consecutive years prior to my departure from China. I assume it may happen due to the misunderstanding or a clerical error made by the person who helped me when filled up the form. I have no idea about how he got this job done. I think my actual background has been reflected in my statement that I have experienced harsh and unfair treatment from China’s government that caused me a psychological harm. I feel desperation and hopelessness for future. I have a fear of persecution in my origin and come to Australia seeking a bright future. I hope my background and situation as a whole can be thoroughly reviewed with humanitarian concern and protection.

CRITERIA FOR A PROTECTION VISA

1. 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, he or she 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.

2. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

3. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

4. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.  

5. 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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

Mandatory considerations

1. 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 - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments 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.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s5J(1) in China and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to China, there is a real risk that he will suffer significant harm.

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

3. The applicant has stated in his written claims that in late 2011, the government wanted to build a new road in his village and that his family home was to be demolished, that they were offered very little money from the local government even though the construction company paid huge money to the local village authorities, that there was a confrontation between the villagers and the police, and that as a result the applicant ran away from home and left the village in 2014. However at hearing the applicant could not remember important details such as the number of the house where he allegedly lived for six years or when the house was to be demolished. In addition, his [temporary] visa application lodged on 3 July 2014 stated that he lived at the one address of [Street Address 1 with house number], [in Town 1], Gaocheng City Hebei up until he came to Australia.  When this was put to him at hearing, he did not comment but subsequently wrote that he had ‘no idea why his application form indicated his residential address was the same over the six consecutive years prior to his departure from China’.

4. The Tribunal finds that the applicant’s vague testimony at hearing in relation to where he lived and when his house was to be demolished and his inconsistent statements in relation to whether he lived at the same address up until he left China does not suggest to the Tribunal that he is talking about events that have occurred. The Tribunal also notes that at an interview on 7 January 2015 which was after his protection visa application was lodged, it is recorded in writing that the applicant stated that he could not recount which visa he had applied for and could not recount his claims and thought he had applied for a [temporary] visa. When this was put to him at hearing, the applicant did not comment but after the hearing, he stated he was an introvert and poor at oral expression. He also stated that he had limited education with little English, had no friends or contacts in Australia and experienced economic constraints. He also stated that he had no idea about his application details and left his friend’s friend to deal with his visa application. He also stated he thought he misunderstood the question asked of him on 7 January 2015 and may have been nervous and that he had wanted to apply for a protection visa because he experienced oppression and unfair treatment by the government in China. He also stated he lacked knowledge about the details of his protection visa application and had no idea about what his statement for the protection visa described and had not been given a written copy.

5. The Tribunal finds that if the applicant genuinely feared returning to China because he feared being arrested by the local police then he would have been able to recount which visa he had applied for and why at interview on 7 January 2015. In addition, the Tribunal finds that the applicant’s statement is almost identical to the statement of another protection visa applicant before the Tribunal, even though the applicant stated at hearing that he had not told his story to anyone else other than the friend’s friend who assisted him to write his statement. The Tribunal finds the applicant's lack of explanation for the almost identical statement of another protection visa applicant is not indicative of someone who is recounting events that have actually occurred and is yet another reason why the Tribunal does not accept the applicant is credible. Accordingly, the Tribunal does not accept that the applicant’s family home was zoned for demolition or was demolished or that the applicant, his family and other villagers were offered compensation or were in dispute with the village or government or that the applicant had an altercation with the police and subsequently ran away from home. Neither does the Tribunal accept that he ran away from home to avoid being arrested by police and is scared to return to China as a result.  Given this, the Tribunal does not accept there is a real risk that the applicant has been linked to or has been imputed with an actual or imputed anti-government opinion for any other related or other reason

1. Accordingly, on the evidence before it, and having considered the applicant's claims individually and cumulatively, the Tribunal does not accept that there is a real chance that he would suffer serious harm for a Convention reason if he returned to China now or in the reasonably foreseeable future. Accordingly, the Tribunal finds that the applicant does not have a well-founded fear of persecution in China.

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

3. 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 has found that the applicant is not credible and it does not accept that his evidence is based on actual experiences. This means that it does not accept that any of the claimed events have occurred. Given this, the Tribunal does not accept there is a real risk that the applicant has been linked to or has been imputed with an actual or imputed anti-government opinion for any reason. Having considered the applicant's circumstances singularly and on a cumulative basis, the Tribunal finds there are no substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to China, there is a real risk that he will suffer significant harm.

4. 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

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

Angela Cranston
Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:

(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)that is not inconsistent with Article 7 of the Covenant; or

(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)that is not inconsistent with Article 7 of the Covenant; or

(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)for the purpose of obtaining from the person or from a third person information or a confession; or

(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)for the purpose of intimidating or coercing the person or a third person; or

(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…
receiving country,  in relation to a non-citizen, means:

(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5J Meaning of well-founded fear of persecution

1. For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)     the real chance of persecution relates to all areas of a receiving country.

   Note:    For membership of a particular social group, see sections 5K and 5L.

2. A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note:    For effective protection measures, see section 5LA.

3. A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

   (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   (b)     conceal an innate or immutable characteristic of the person; or

   (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

   (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

   (ii)conceal his or her true race, ethnicity, nationality or country of origin;

   (iii)alter his or her political beliefs or conceal his or her true political beliefs;

   (iv)conceal a physical, psychological or intellectual disability;

   (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

   (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

4. If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)     the persecution must involve serious harm to the person; and

   (c)     the persecution must involve systematic and discriminatory conduct.

5. Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)     a threat to the person’s life or liberty;

   (b)     significant physical harassment of the person;

   (c)     significant physical ill‑treatment of the person;

   (d)     significant economic hardship that threatens the person’s capacity to subsist;

   (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

6. In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K  Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L  Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA  Effective protection measures

1. For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

   (a)     protection against persecution could be provided to the person by:

   (i)the relevant State; or

   (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

   (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

2. A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

   (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

..

36Protection visas – criteria provided for by this Act

…

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)    the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…