1603587 (Refugee)

[2017] AATA 173

1603587 (Refugee) [2017] AATA 173 (1 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1603587

COUNTRY OF REFERENCE:                  China

MEMBER:Susan Hoffman

DATE:1 February 2017

PLACE OF DECISION:  Perth

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

Statement made on 01 February 2017 at 12:09pm

CATCHWORDS

Refugee – Protection visa – China – Compulsory land acquisition – Insufficient compensation – Threats to parents – Credibility issues – Unlawful residence – Delay in protection application

LEGISLATION

Migration Act 1958, ss.36(2)(a), (aa), (b), (c), 65, 91R, 499
Migration Regulations 1994, Schedule 2

CASES

MIAC v SZQRB (2013) 210 FCR 505

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of China, applied for the visa [in] November 2014 and the delegate refused to grant the visa [in] February 2016.

3. The applicant appeared before the Tribunal on 24 January 2017 to give evidence and present arguments. His [friend] was present. She did not give evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant’s representative, a registered migration agent, did not attend the hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. Section 91R is about persecution. It sets out that persecution involves serious harm to the person. Section 91R(2) provides that the following are instances of serious harm: (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.

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

10. Significant harm is defined in s.36(2A) as being arbitrarily deprived of life; that the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.

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

12. The issue in this case is whether or not the applicant satisfies the criteria for a protection visa. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background, protection claims, and the delegate's decision

13. The applicant claims to be born in Fuqing City in China on [date]. According to his application form his parents live in China. The applicant declared in his application form for a protection visa that his Chinese passport was issued [in] 2006 and expired [in] 2011, and that he speaks Mandarin. At the Tribunal hearing, the applicant had with him a passport issued [in] 2016 by the consulate general of the People’s Republic of China in [city].  

14. The Tribunal is satisfied on the evidence before it that the applicant is a citizen of China and that China is the applicant’s receiving country for the purposes of the refugee and complementary protection assessment. There is no evidence to suggest that the applicant has the right to enter and reside in a third safe country (s.36(3) of the Act).

15. According to departmental records, the applicant arrived in Australia on a [(student)] visa [in] June 2007 which ceased [in] October 2010.[1] According to the delegate’s decision record, the applicant remained in Australia unlawfully for over 4½ years until submitting his protection visa application [in] November 2014.  

    [1] The applicant said at the hearing that he arrived [in] July 2007 not in June 2007. The Tribunal is of the view that this discrepancy between the dates has no bearing on its decision. 

16. In his protection visa application, and as recorded by the delegate, the applicant claimed that he left China as a student. He claimed that he had been experiencing intimidation and threats to his family as they were a vulnerable group in their village. He claimed that the authorities expropriated land without making sufficient compensation to cover loss of employment income and living expenses in future years. He claimed that his parents had not been able to find alternative jobs, and that his parents protested against the authorities for return of land. He claimed that because of this, his parents were persecuted by the authorities. The applicant claimed that when he returned to China, he would face a similar fate as his parents experienced.

17. The applicant was invited to discuss his claims at an interview with the delegate, scheduled [in] February 2016. The applicant failed to attend and, as recorded above, [in] February 2016 the delegate refused to grant the visa. The delegate did not find that the applicant’s claims were credible as the applicant failed to attend the interview, and the information contained in the protection visa application “was vague and contained little factual information”. The delegate also questioned whether the application for protection was genuine given the length of time that the applicant was in Australia unlawfully, and observed that this suggests the applicant’s motivation for claiming asylum was for the purpose of prolonging his stay in Australia.

    Findings and reasons

18. The Tribunal is required to determine whether or not the applicant meets the criteria to be granted protection by Australia. To this end, the Tribunal considered the evidence before it, including the sworn evidence given by the applicant. The Tribunal is required to consider the credibility of the claims made by the applicant. It acknowledges the recognised difficulties faced by asylum seekers when giving evidence at hearings, such as those associated with interpretation and recalling details from incidents that occurred years ago. While not required to accept uncritically any or all the claims made by an applicant, the Tribunal accepts that the benefit of the doubt should be extended when asylum seekers are generally credible even if they are unable to substantiate all of their claims.

19. The Tribunal has also considered the applicant’s claims in light of country information and assessed them accordingly. It has also considered the findings of the delegate. The applicant’s claims in his application for protection and during the hearing were broadly consistent. The applicant’s evidence to the Tribunal, while providing some additional detail to that given in his original application, was still general and lacked certain details of relevance to his protection application. The Tribunal concluded that the applicant failed to demonstrate that he has a well-founded fear of persecution. The Tribunal did not find the applicant’s claim of fearing persecution to be credible for reasons set out below.

20. The applicant claims that he fears persecution by authorities because of his parents’ land being expropriated by the authorities.

21. About expropriated land and compensation, the DFAT report states as follows:[2] 

    3.21 Despite recent reforms leading to improved legal protections for property ownership and compensation for expropriated land, protests and petitions related to land seizures by officials and the conduct of developers remain common in China. According to the State Bureau of Letters and Calls (the national department responsible for local petitioning offices), an estimated four million disputes resulting from expropriated land and property demolitions occur every year. DFAT is aware of reports describing aggressive, and sometimes violent, action by private security contractors hired by property developers to manage protesters.

    3.22 China’s Constitution and State Compensation Law enables citizens to seek compensation from the state but the public’s confidence in the judicial system and ability to afford lawsuits is generally low. The Chinese government encourages Chinese citizens to submit complaints through government-controlled websites and local petitioning offices. Although extra-legal “black gaols” (informal, ad hoc, detention facilities set up by local authorities) have long been used to contain the rising number of petitioners, the Chinese government denied their existence during its most recent Universal Periodic Review. The government has announced a number of reform measures designed to improve transparency and responsiveness of the petition system. In November 2013, authorities announced plans to abolish a long-held system of ranking provincial authorities according to their ability to limit local petitioners and maintain social stability.

    [2] DFAT Country Information Report, People’s Republic of China, 3 March 2015

22. Additional information is provided by Canada’s Immigration and Refugee Board:[3]

    According to the US Department of State's Country Reports on Human Rights Practices for 2014, property disputes in China "were widespread in both urban and rural areas," "often turned violent between citizens and government authorities," and "frequently stemmed from local officials' collusion with property developers to pay little or no compensation to displaced residents" (US 25 June 2015, 23). China Change, a website devoted to "news and commentary related to civil society, rule of law, and rights activities in China" (n.d.), states that disputes over land expropriation account for about half of "protests, riots, and other forms of [mass] social disorder in China;" the source quotes the Chinese Academy of Social Sciences as stating that there are more than 100,000 of such incidents in the country each year (China Change 16 Dec. 2014). Reuters similarly reports that approximately "90 000 'mass incidents' - a euphemism for social unrest - occur each year in China, of which some two-thirds are triggered by land related disputes" (7 Mar. 2013).

    [3] Canada: Immigration and Refugee Board of Canada (IRBC) 2015, CHN105284, accessed 24 January 2017 at >

    The applicant provided a copy of the delegate’s decision to the Tribunal. Asked what he feared would happen to him if he was to go back to China, the applicant said that without the land, the only way he and his parents could support themselves is with casual jobs and life would be hard.

23. It was recorded in the delegate’s decision that the applicant stated in his application “Yes I have been experiencing intimidation and threatening to my family as we are vulnerable group in our village”. When asked if he personally had experienced intimidation and threats, the applicant clarified that what he meant was that he was witnessing from Australia the intimidation and threats made to his family in China, and that the reason for the intimidation and threats was to do with the land and compensation. He said that he was not the subject of intimidation or threats.

24. The delegate’s decision recorded that the applicant claimed that his parents had been persecuted by the authorities. Asked what he meant by this, the applicant said his parents did not agree to handing over the land and the government sent people to threaten his family. The applicant did not give any detail of when or how the government sent people to threaten his family, and the Tribunal does not find this claim to be credible.

25. The applicant claimed that his family went to the government buildings to ask for their compensation as it had not yet been paid, and that they were threatened but he could not provide any further detail about the threats.

26. Asked to describe the nature of the threats, the applicant said that his parents did not tell him the details of the threats, only that the authorities threatened them. He said that his parents told him not to go back to China in case he faced similar threats. The Tribunal does not find it credible that parents would tell their adult son that authorities had threatened them and he might face similar threats, but not tell him what the threats were.

27. Asked if his parents were physically harmed, or arrested, by the authorities, or anything of that kind, the applicant said that there had been a collective protest in his parents’ area and the authorities had asked some fighters to beat people up. He said that this occurred at the end of 2014, and although his parents were not hurt on that occasion, others were.

28. The applicant said that he lodged his protection visa in 2014 and not before then, as until then there had been no problems. He said that his parents started having problems in 2014 and told him about those problems during the phone calls he had with them once a week or once a fortnight. He said that the government forced his parents to hand over their land and told him not to go back to China.

29. The applicant said that the land was used for crops and was about [number] kilometres from his parents’ home, where he grew up and where his parents still live. He claimed that without the land, his family had no source of income. When asked at another point in the hearing how his family paid for food, he claimed that his parents did casual work and were still doing that. He claimed that other people in his village were affected as the government wanted to clear a large area of land for property development which has since gone ahead. The applicant claimed that apartment blocks have been built where the land was in [name] Town, Fuqing City.

30. The applicant said that his parents lost their land some time before the 2015 Spring Festival. The applicant said that nothing specific had happened to his parents since the 2015 Spring Festival during the remainder of that year or in 2016. 

31. The applicant did not know how much compensation his parents had been offered, saying that they did not tell him the amount and just told him that they had been offered very little.

32. When asked why he did not attend the interview with the delegate arranged [in] February 2016, the applicant claimed that he knew it was happening but did not arrange his time properly and missed it. The Tribunal was not satisfied that the applicant was being honest on this point.

33. Asked about his student visa ending in March 2010, the applicant said that at that time his family was not getting enough income from farming land and he thought he could get work in Australia and earn money. The Tribunal considered that the applicant was being honest with this answer in that he wanted to remain in Australia and earn money, even though his visa had run out.

34. The applicant said that what happened in his home country made him frightened of going back as he was afraid he could not lead a normal life if he went back to China.

35. The Tribunal asked if there was any reason that the applicant believed that he would be personally targeted if he returned to China as he left there in 2007 which was more than  eight years ago. The applicant claimed that if he was in China he would go with his parents to the authorities to complain about the land and inadequate compensation offer.

36. The applicant claimed that his parents are still fighting for their compensation and they are quite afraid of what might happen as the authorities might find gangster or fighters to beat them up. The applicant acknowledged that this had not happened in the last two years but said that there were lots of threats.

37. Asked if there was anything else he wanted to tell the Tribunal, the applicant said that he feared he would be treated as his parents have been and threatened, and mentally he would be challenged. Asked to clarify what this meant, the applicant said that if he saw his family treated badly he would be stressed and when he thinks about it, he would be terrified.

38. Asked if he could live in other parts of China, the applicant said that that was not possible for him as he would have no money and it would be impossible to get a life in other parts of China. The Tribunal notes that the applicant lived unlawfully for over 4½ years in Australia. He said that he currently works in [an occupation].

39. The Tribunal accepts that land expropriation occurs in China because of the numerous reliable sources that describe this practice. It also accepts that land expropriation can lead to social unrest because of the manner in which land is expropriated and the compensation offered to those whose land is taken can be inadequate.    

40. The Tribunal did not find the applicant to be credible in relation to his claim that he feared persecution. It accepts that his parents may have told him not to return to China but considers it more likely that this would be for financial reasons, consistent with his statement that he remained in Australia after his student visa ended to assist his family financially.

41. The Tribunal does not accept that the applicant’s parents’ land was expropriated and therefore does not accept that the applicant’s parents have a dispute with authorities following expropriation of their land as, although this practice occurs in China. The Tribunal does not accept these claims because the applicant was unable to provide details such as the amount of compensation offered by authorities to his parents or the threats made against his parents. The Tribunal notes the applicant’s claim of witnessing the intimidation and threats made against his family. The Tribunal does not accept that this is credible as the applicant said he did not know what threats were made or how much compensation was offered.

1. Regarding the applicant’s claim that there was a collective protest towards the end of 2014 in the area where his parents lived, the Tribunal accepts that this occurred because protests against land expropriation in China are well-documented. The Tribunal does not accept that the applicant knew that some people were hurt or that his parents attended any such protests. The Tribunal considers that these claims were fabricated to strengthen the applicant’s case.

2. As the applicant said that he and his parents could support themselves through casual work, the Tribunal is satisfied that if he was to return to China, the applicant would have the capacity to subsist. The Tribunal finds therefore that the applicant would not face a real chance of serious harm regarding his capacity to subsist if he was to return to China.

3. The Tribunal does not accept that the applicant has a subjective fear of returning to China for Convention reasons but rather, that he prefers to live in Australia. The Tribunal does not accept that the authorities in China, or any other grouping, have an interest in the applicant.

   CONCLUDING PARAGRAPHS

4. The Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason should he return to China now or in the foreseeable future. The Tribunal is satisfied therefore that the applicant does not meet the requirements of s.36(2)(a).

5. The Tribunal then considered if the applicant met the criteria for protection under the complementary protection provisions. The Tribunal considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to China, that there is a real risk he will suffer significant harm, as set out in s.36(2)(aa).

6. In MIAC v SZQRB, the Full Federal Court held that the test for “real risk” imposes the same standard as imposed by the “real chance” test as applies to the assessment of well-founded fear in the Convention definition.[4]

   [4] MIAC v SZQRB(2013) 210 FCR 505

7. The Tribunal does not accept on the evidence before it that there is a real risk the applicant would suffer significant harm in the future if removed from Australia to China. As noted above, the Tribunal does not accept that the authorities in China, or any other grouping, have an interest in the applicant. The Tribunal does not accept that 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 the applicant will suffer significant harm, as set out in s.36(2)(aa).

8. 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

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

   Susan Hoffman
   Member