1602716 (Refugee)

[2020] AATA 3201

1602716 (Refugee) [2020] AATA 3201 (23 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1602716

COUNTRY OF REFERENCE:                   China

MEMBER:Mila Foster

DATE:23 June 2020

PLACE OF DECISION:  Sydney

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

Statement made on 23 June 2020 at 2:18pm

CATCHWORDS

REFUGEE – protection visa – China – land expropriation – government petition – family harassed and detained – delay in applying for protection – inconsistent evidence – credibility issues – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 424AA, 438, 499
Migration Regulations 1994 (Cth), 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 and Border Protection on 9 February 2016 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 26 February 2015. The delegate refused to grant the visa on the basis that the applicant was neither a refugee nor owed complementary protection.

   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). 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.

4. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee. 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 themselves of the protection of that country: s.5H(1)(a). 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.

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).

   Mandatory considerations

6. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. DFAT published such a report in relation to China on 3 October 2019 (DFAT Report), replacing a previous report published on 21 December 2017.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The evidence before me in this matter consists of the Department file relating to the applicant’s protection visa application[1] and the oral evidence the applicant gave at a Tribunal hearing held on 7 March 2019.

   [1] [File number].

8. The issue in this case is the applicant’s credibility and the credibility of his claims. For the reasons I give below after outlining the claims and evidence, I have concluded that the decision under review should be affirmed.

   Protection visa application

9. The applicant’s protection visa application consists of a protection visa application form completed by the applicant, a written statement made by the applicant and a certified copy of the biodata page of a Chinese passport issued to the applicant [in] 2013.

10. According to information provided on the form, the applicant is a [age]-year-old Chinese national who arrived in Australia [in] September 2013 on a student visa. He had departed China legally and had not previously travelled outside China. He withdrew from an English course he attended in Australia from September 2013 until October 2013 and withdrew from an intensive English course he attended from October 2013 until June 2014.

11. The applicant had never married or been in a de facto relationship. His family consisted of his parents who resided in [Village 1] in the Jilin province of China. He kept in contact with his parents by phone. 

12. He had lived at two addresses in China: in [Village 1] from November 1988 until February 2009 and in Mei Hekou city from February 2009 until September 2013.

13. He completed high school in China in July [year] and studied at an [technical] school from September [year] until he withdrew in July 2011. From October 2011 until September 2013 he was employed as a [salesperson] in Mei Hekou city.

14. The applicant provided his reasons for seeking protection in his written statement. He stated:

    … In late 2013, in order to concede the land to forestry, the local government destroyed my family’s [lands] and refused to give any reasonable compensation. My father suffered beatings and injuries because of our opposition to the forced land expropriation. Now, I submit my application to the Australia government for my refugee visa, because I will face serious threats if go back to China.

    My home town, [Village 1] of Meihekou City has more than [number] people living there. The villagers mainly grow crops for living. Our family has 10 hectares of [lands]. In 2011, my father began to run [specialized cooperatives] of Meihekou city. In 2013, my family wants me to accept better education and sent me to study overseas. Unfortunately, at the end of 2013, the government destroyed the lands without any public meeting or public discussion with the villagers. They forcibly occupied the land. The villagers asked the government to provide land approvals. [Village 1] Town government could not produce any documents related to the demolition and land acquisition approvals. The local officials said all the land belonged to the nation and the local government had the power to govern all the land. They refused to pay compensation to the villagers. 

    Subsequently, [in] January 2014, as representative, my father went to Meihekou city government with other villagers to make petition. They wanted to restore the farming land to support their livings or provide compensation to them. Meihekou City petition department wrote down these requirements and asked the villagers to go home to wait.

    [In] March 2014, around 8:00am, the police and government staff nearly a hundred people directed by the leader of the town government dust pesticides into lands. My father came up to stop them. The leader said fiercely, “I heard you went to higher authorities on behalf of the villagers? You want justice? The justice I am!” Then he waved his hands to the police, the police immediately holding the sticks came to my father.

    The police slapped my father’s face twice, and then hit his head with sticks. Other villagers tried to stop them; those police suddenly surrounded us with sticks and other weapons. They hit the farmers who tried to argue. Then [Village 1] became a living hell, cries and curses mixed together, the blood flowed on the ground. On that day, my father was severely beaten, and with two other villagers they were arrested by [Town 1] Public Security Bureau (PSB). My father was detained for 11 days, two other villagers was detained for nine days.

    The government did not give our family any compensation and our [lands] were destroyed. Moreover, because my father was arrested, the company could to run any more. I lost financial support, so I had to drop out of school. My mother told me by phone that police threatened my father not to make a petition and asked my father to report to police every week. Some days ago, I learned from a friend that in this situation, I could apply for political asylum to the Australia government. ..

    Delegate’s decision record

15. The delegate’s decision record, a copy of which the applicant provided on review, describes the applicant’s migration history as follows:

    The applicant arrived in Australia [in] September 2013 holding a [Student] visa which was valid until 30 September 2016. This visa was cancelled on 10 June 2014. The applicant remained in Australia as an unlawful non-citizen until he lodged a valid Protection visa application on 26 February 2015. On 2 March 2015 the applicant was granted an associated Bridging C visa and on 21 May 2015 the applicant was granted a further Bridging C visa.

    Other information on the Department file

16. The Department file relating to the applicant’s protection visa application also contains a non-disclosure certificate dated 4 March 2016 and documents relating to the applicant’s student and bridging visas.

17. The non-disclosure certificate states that s.438(1)(a) of the Act applies to information in specified folios on the Department file and that disclosure of the information would be contrary to the public interest because the folios contain information relating to an internal working document and business affairs. However, the reason for non-disclosure of the information is not the basis of a claim for public interest immunity and thus the certificate is not valid.

18. With the exception of information in the documents indicating that the applicant ceased his studies in Australia in October 2013,[2] the documents relating to the applicant’s student and bridging visas and information referred to in the invalid certificate are not relevant to the issues in the review.

    [2] [File number], ff.60,61,49.

    Tribunal hearing

19. The applicant gave evidence at the hearing with the assistance of a Mandarin speaking interpreter. I refer to the evidence in the following credibility assessment.

    Assessment of credibility

20. The DFAT Report indicates that protests and petitions related to land seizures by officials are common in China.[3] However, for the following reasons I have concluded that the applicant and his claims are not credible.

    [3] DFAT Report, [3.135].

21. The applicant stated at the hearing that in 2014 his parents repeatedly petitioned the Meihekou city government and every time they did so they were hit by someone. He also stated that gangsters went to his parents’ home with knives and sticks and threatened that if they appealed further their family would be punished more. Asked why he had not mentioned in his written statement that his parents had made repeated petitions, were physically harmed each time and that gangsters threatened them in their home with knives and sticks, the applicant responded that he wrote what he was thinking and that he was not an author. The applicant’s written statement referred to just one occasion [in] January 2014 when his father (and other villagers) petitioned the Meihekou city government and just one occasion after that [in] March 2014 when his father was assaulted for petitioning to the city government. If both the applicant’s parents made repeated petitions to the city government, were hit every time they did so and were threatened by gangsters in their own home I expect those claims would have been made in the applicant’s written statement.

22. According to the applicant’s written statement, his father was arrested almost two months after he petitioned the city government when he attempted to stop the police and town government staff dusting pesticides on the village lands. However, at the hearing the applicant stated that his father was arrested after returning home from taking villagers to the city government to lodge a petition. He said that when they returned home there were many police officers present who said a lot of people were disrupting public security, that there was a fight and they (the applicant’s father and the villagers with him) were detained.  Asked about the different accounts the applicant had given about the circumstances leading up to his father’s alleged arrest, the applicant stated that it occurred long ago and he did not pay attention to details. The applicant’s written statement contained very precise details such as the exact time on [the date in] March 2014 that the police and government officials came to spread the pesticides. If the applicant genuinely feared returning to China because of his parents’ experiences I expect he would have attempted to be as precise as possible when giving his oral evidence at the hearing. Furthermore, the issue was not the lack of detail but the different account the applicant had given at the hearing. I thus do not accept his explanation.

23. I put to the applicant, pursuant to s.424AA, the information I had which indicated that he had ceased his studies in Australia in October 2013 which was inconsistent with information in his protection visa application that he had ceased his studies in June 2014 and the claim in his written statement that he had to drop out of school after his father’s arrest in March 2014 because his father could no longer financially support him. The applicant responded that he arrived [in] September 2013 and went to classes, his family were very wealthy, he did not concentrate on his studies, he found English study very hard, the school was not very strict and he was sometimes absent from classes, he was waiting to repeat classes. He said he also met friends and they often went out but then he had problems covering accommodation and living expenses and was worried about communicating that to his family. That response did not explain the inconsistencies put to him.

24. Finally, the applicant’s delay in applying for the protection visa undermines the credibility of his claims. The applicant became an unlawful non-citizen when his student visa was cancelled in June 2014 and yet he did not apply for the protection visa until 8 months later. When I put that to the applicant at the hearing, he replied that he did not have information or channels to help him and it was only after discussing his problems with a friend that he released it was an option. I questioned why he had not made inquiries himself. The applicant replied that his English was bad and questioned where he could go to ask and added that his classmates did not know. I suggested he could have asked the Department which after all issued visas. The applicant stated that his tuition fees were paid and his visa would last until 2016 so he did not care. It seems to me if the applicant did not care then he would not have spoken to his friend about his ‘problems’ and applied for the protection visa in February 2015. I noted that the applicant’s student visa was cancelled and he would have received a notice to the Department. He responded that he had not received the notice because he had moved and did not know he had to update his information. At the beginning of the hearing the applicant had stated that he had been working since his visa was cancelled in June 2014 to support himself. If the applicant was capable of finding employment and accommodation and managing day to day activities, then I expect he was capable of making inquiries about his visa options especially if he feared returning to China. Even if the applicant did not think it was necessary to update the Department of the change to his residential address and did not receive the cancellation notice, I expect that by not attending school he was aware that he was not meeting the requirements of his student visa. Had the applicant not been aware of that and ‘did not care’ then I expect he would not have applied for the protection visa in February 2015 more than a year before his original student visa would have expired had it not been cancelled. I expect that if the applicant’s’ claims were true and he genuinely feared returning to China, he would have applied for the protection visa well before he did and much closer to when he ceased his studies and was thus no longer meeting the requirements of his student visa.

25. Due to the applicant’s lack of credibility I do not accept that his parents’ land was destroyed and confiscated without any compensation or that his father or parents petitioned any government in China about not being compensated for the destruction and expropriation of their land. Nor do I accept that the applicant’s father or parents have been harmed, threatened, arrested or detained by the police, gangsters or anyone else for petitioning any government in China.

    Protection visa criteria findings

26. I accept on the basis of the applicant’s Chinese passport that he is a national of China.

27. However, as I have rejected the claims the applicant has made in relation to his parents petitioning the destruction and appropriation of their land without being compensated, I find that the applicant will not be persecuted if he returns to China for the reasons he has claimed. I thus find that the applicant does not have a well-founded fear of persecution within the meaning of s.5J(1) and hence is not a refugee as defined in s.5H(1). I am therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

28. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa). However, as I have rejected the claims the applicant has made about his parents petitioning the destruction and appropriation of their land without being compensated, I find that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country (China), there is a real risk that he will suffer significant harm. I am therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

29. 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

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

    Mila Foster
    Member