1604071 (Refugee)

[2019] AATA 3334

1604071 (Refugee) [2019] AATA 3334 (20 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1604071

COUNTRY OF REFERENCE:                   China

MEMBER:Denise Connolly

DATE:20 February 2019

PLACE OF DECISION:  Sydney

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

Statement made on 20 February 2019 at 2:25pm

CATCHWORDS
REFUGEE – protection visa – China – dispute with township leaders – government requisition of property for development – inadequate compensation – credibility – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65

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 25 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 arrived in Australia [in] January 2015 as the holder of a  [visitor] visa. He applied for protection [in] April 2015. The delegate refused to grant the visa on the basis that he was not satisfied the applicant is a person in respect of whom Australia has protection obligations.

3. There is a s.438 certificate on the Department’s file certifying that folios 42 and 58 should not be disclosed because it would be contrary to the public interest as the folios contain “information relating to an internal working document and business affairs”. Folio 42 concerns information used to establish the applicant’s identity, which is not in dispute. Folio 58 is a template entitled Disclosure decision checklist which records there are no s.437, or s.438(1)(a) or (b) documents on the file. There is nothing adverse in the information contained in those documents. Having considered the certificate and the material the Tribunal finds the reasons given do not properly identify a basis for public interest immunity. There is no suggestion that the documents or their content would harm the nation or public interest by disclosure of the material.  The Tribunal finds the certificate is not valid. As the Tribunal found the certificate is invalid and the documents referred to do not contain any adverse information it was unnecessary to advise the applicant of its existence.

   CLAIMS AND EVIDENCE

   Evidence provided to the Department

4. The applicant made the following claims in his protection visa application. He was born in Wendeng, Shandong Province on [date]. He resided in Wendeng City, Shandong Province from [that year] until he departed for Australia in January 2015. He lived at the same address in Wendeng City from January 2005 to January 2015. He married in [year] and has one [child] born in [year]. His [family] live in Wendeng City. Prior to coming to Australia he had his own business, a [product] factory which he started in 2000, based in Wendeng City. In a written statement attached to the application the applicant claimed to be Christian, a member of the [name] Church. He claimed that his family were also Christian. He claimed that after arriving in Australia he met a friend [Mr A] who was also a faithful Christian. [Mr A] returned to China when he completed his studies in Australia. The applicant attempted to contact [Mr A] by telephone and [Mr A]’s mother told the applicant that he had been detained for one week due to his engagement in underground church activities. [Mr A] was forced to confess and was penalised heavily. [Mr A]’s mother warned the applicant not to return to China. Because he was scared that he would be penalised he told his family he would not return.

5. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that the day before the applicant’s interview with the delegate the migration agent forwarded to the delegate a statutory declaration attested by the applicant [in] February 2016 in which the applicant stated that he did not complete his protection visa application and that the details of the written claims were not read back to him. The applicant claimed that he merely signed the statement. In the statutory declaration the applicant claimed that he worked in [factory 1] until July 1997, he worked in the [factory 2] as a maintenance worker from July 1997 to December 2005 and he then established a [product] factory in January 2006. He claimed in the second half of 2014 his [town 1] was to be upgraded and the township planned to demolish several [property] and that his family’s [property] were to be demolished. He claimed that after numerous negotiations with the township leaders the applicant understood that he had no control over the situation and that he must sign the document. However the compensation offered was far below the government’s instructions and he resisted signing the document. At the end of 2014 he decided to run away from China and hide because he will not have to sign the document if he is not physically in China. He only learned what was provided to the Department in January 2016 when his new migration agent receive the material from a Freedom of Information application.

6. The delegate’s decision record records the information provided to the delegate at the interview. The Tribunal has listened to the recording and is of the view the delegate’s written record is a correct reflection of the information provided by the applicant in the interview.

7. As recorded in the delegate’s decision record, at the interview the applicant stated that prior to leaving China he lived in [address], Wendeng City with his wife. He had lived there for [number of] years before departing China. The applicant stated that he did not complete the protection visa application and that he was merely asked to sign the statement by his then agent.  The delegate noted that the employment history, residential history and overseas travel information provided in his Form C were very similar to the details provided in the statutory declaration [in] February 2016. The applicant indicated that he did not have a migration agent prior to December 2015 but that he met someone through a friend who assisted him with the application. He acknowledged that he told the person who submitted his protection visa claims all his personal details. However he let that person provide his statement of claims.

8. The delegate recorded that the applicant in the statutory declaration indicated his hometown was [Town 1][] however he told the delegate he lived at [address], Wendeng City for [number of] years. The applicant stated that he left [Town 1][] in 2005 and only returned there intermittently until leaving altogether [number of] years before departing China. The delegate raised with the applicant the utility of his claims about property at [Town 1][] given he did not live there. The applicant claimed he owned a property in [Town 1][1] and he lived there previously with his father. His father had [property] in [Town 1][] and these would be passed down to him when his father died. When he left China he lived about 20 kilometres away from [Town 1][].

9. The applicant indicated about [number of properties] were affected by the development plans. In July 2014 the government’s upgrade plans meant that his father’s [property] faced demolition. He entered negotiations with the town’s leaders about compensation and relocation. The delegate asked the applicant why he was involved in the negotiations given they were his father’s properties. The applicant said his father was too old to participate in negotiations so he negotiated with the town government. He was required to sign a document to accept substandard compensation but in December 2014 decided not to sign the document.

10. The delegate records that he asked the applicant for details about the properties. He records that the applicant stated the [property] covered approximately 200 square metres each. The applicant stated that his father still lives in one of the [property] and by his remaining in Australia the government cannot demolish the [property]. The delegate raised country information indicating Chinese law provides for stages of mediation that commence with direct negotiation and escalate to government intervention and then court review of land seizures. The delegate informed the applicant that the country information indicated that by simply leaving the country the applicant could not prevent land seizure of his father’s properties.  The applicant stated that if the negotiations are unsuccessful the government would not demolish the house. The delegate advised the applicant that the country information indicates that the applicant’s father would have been forced from his home.

11. The delegate records that he asked the applicant about the level of compensation his father should have been offered. The applicant indicated that he wanted his father to be offered the compensation according to the law, that is, 1200 RMB per square metre. The delegate raised with the applicant that the country information indicates the compensation is 30 times the average annual output value of the expropriated land calculated on the basis of three years preceding such expropriation. The delegate indicated it was his view that is less than 100 yuan per square metre. The applicant then said his father’s [property] were 100 square metres each, not 200 square metres. He stated the government offered him 600 RMB per square metre. The delegate questioned whether the applicant’s estimate of the compensation to be offered was plausible as it was not supported by country information. The delegate told the applicant about the Land Administration Law in China which allows the government to requisition property in the public interest as the state owns the land.

12. The delegate records that he asked the applicant why he fears returning to China. The applicant stated that during the negotiations there were numerous arguments and he feared for his safety. The delegate noted the applicant did not leave China for 24 days after the grant of his visa and waited nearly 3 months after arriving in Australia before he applied for protection. The applicant indicated he did not know how things worked in Australia.

13. The delegate records that he asked the applicant what he fears will happen if he returns to China.  The applicant indicated he fears the authorities because he rejected their offer. He fears he will be arrested if he returns to China. The delegate questioned why he did not remain in China and continue to negotiate with the government as others in his village have done. The applicant then claimed he was the leader in the negotiations with the town leaders and some were waiting for his negotiations to finish. Others caved in and accepted the first offer. The applicant maintained that he was fighting inadequate compensation and setting an example for others. The delegate questioned whether he was setting an example given he left China rather than remain and continue with the negotiations.

14. The delegate noted that in the Form C the applicant claimed to live [at address] since January 2005 but that he told the delegate he had lived there for [number of] years. The applicant confirmed he left [Town 1] in 2005. However his household registration is still there.

15. The delegate was not satisfied the applicant’s evidence was consistent and credible. He formed the view the applicant’s assertions about the value of his father’s [property] was not consistent with the country information. He considered the delay in making the application for protection and lodging his amended claims was not consistent with his evidence that he feared returning to China. He formed the view the applicant’s conduct is not reflective of a person who fears harm, in genuine need of protection. He was not satisfied the applicant would be subjected to persecution if he were to return to China. He was not satisfied there was a real chance of persecution for one or more of the reasons mentioned in s.5J(1)(a) of the Act in the receiving country. He was not satisfied the applicant is a refugee as defined in s.5H or that the criterion in s.36(2)(a) was met. He was not satisfied that there were substantial grounds for believing that, as are necessary and foreseeable consequence of being removed to China, there is a real risk the applicant will suffer significant harm as required by s.36(2)(aa). The delegate therefore was not satisfied that the applicant is a person in respect of whom Australia has protection obligations.

    Evidence provided to the Tribunal

16. The applicant provided to the Tribunal a copy of the delegate’s decision record.

17. At the hearing the applicant provided to the Tribunal photocopies of documents written in the Chinese language. The Tribunal sought the assistance of the interpreter and the oral evidence of the applicant to understand the relevance of the documents. It was explained to the Tribunal that the documents relate to the house demolition of [Mr B], a friend of the applicant who lived in a nearby town. The documents concern the exchange for settlement, the first party being the [Committee] [Economic Development Zone] and the second party being [Mr B]. The documents confirm that there was an agreement between the parties and [Mr B] was compensated for the demolition of his house. The applicant said he provided these documents to show that the compensation was calculated in accordance with the formula he described to the delegate. The documents show that [Mr B] was compensated a total amount of 141,682 RMB and the size of the property was 163.5 square metres (866 RMB per square metre).

18. The applicant confirmed that he is not a Christian and is not making any claims to be a Christian. He told the Tribunal that when the visa application form was completed he had no knowledge of this claim being made because he has no English. The Tribunal asked who completed the visa application form. The applicant indicated that he met a Chinese student on the plane on the way to Australia who helped him fill out the form. The Tribunal asked if the applicant knew about protection visas before he came to Australia. The applicant indicated that the Chinese student introduced him to protection visas but he did not really understand. The Tribunal asked how the Chinese student was able to record correctly the details of the applicant’s education, employment and residential history in the Form C. The applicant acknowledged that he gave the Chinese student information about those aspects of his life. The Tribunal asked the applicant what he thought was the purpose of the form. The applicant indicated that the Chinese student did not tell him in detail what the form was for. He thought he was just filling out a form so he could stay in Australia. He just wanted to stay here as long as possible. The Tribunal asked the applicant if he had come to Australia to work. He denied working in Australia. The Tribunal asked him to clarify whether he has ever worked in Australia. He then admitted that after he was given his bridging visa he started to do odd jobs. Later he asked the Chinese student how his visa could be extended. The Chinese student then explained protection visas to him. The Tribunal asked the applicant what visa he thought he was applying for when he was on the plane. He indicated that he did not really know.  However later the Chinese student told him he had applied for protection. The Tribunal asked when it was that the applicant understood he had applied for protection. He indicated it was about 2 months after the plane trip that he was told he had applied for protection.

19. The Tribunal asked the applicant about the identity of the Chinese student who had assisted in completing his protection visa application. The applicant indicated that he could not remember his name. The Tribunal questioned whether it was true that he could not remember the name of the person to whom he had given all of his personal details to lodge a visa application. The applicant indicated that it was a long time ago. The Tribunal explained to the applicant that this may cast doubt on his evidence as it may not be satisfied that he does not know the name of the person who assisted him to make his protection visa application. The Tribunal also noted that the applicant had said that the Chinese student told him 2 months after meeting him on the plane that he had applied for protection, suggesting they had ongoing contact. The Tribunal asked the applicant how they made that contact. He indicated that he gave the Chinese student his mobile phone number. The Tribunal asked the applicant to check his phone for the Chinese student’s name. He claimed that he no longer had the Chinese student’s phone number as he had changed his mobile phone. The Tribunal asked whether the Chinese student had asked the applicant about his reasons for making the visa application. He indicated that he thought the visa application was about the house demolition in China and having reached a stalemate in the negotiations. The Tribunal asked, in those circumstances, why the Chinese student would fabricate Christian claims. The applicant then indicated he did not tell the Chinese student about his issues in China. He indicated that the Chinese student told him he would do something about a visa for him but he did not give the Chinese student the details about the house demolition. He then indicated he could remember the Chinese student’s name. The Tribunal asked the applicant if he paid the Chinese student for assistance in completing the visa application. The applicant denied this. He indicated the Chinese student assisted him because his English was not good and he did it out of goodwill because they are from the same country. He claimed the Chinese student merely asked him to sign the form.

20. The Tribunal asked the applicant if the claims made and information provided in the statutory declaration were true. The applicant confirmed that the information in his statutory declaration is true and correct. The Tribunal asked the applicant when he commenced working at [factory 1]. The applicant thought he started in about 1989 and stopped in either 1994 or 1996.  The Tribunal asked the applicant about the establishment of his [product] factory. He indicated that he used money from his savings and borrowed money from friends to establish the factory. Initially he had capital of 50,000 RMB (about $10,000). Later he increased the capital. He employed 7 or 8 people. The Tribunal asked how long he ran the business. He indicated he ran it for about 3 or 4 years. He indicated he closed the business just before he came to Australia in January 2015. The Tribunal calculated that that suggested he established the [product] factory in about 2012. He agreed with this. The Tribunal noted that this evidence was significantly different to his evidence in the statutory declaration where he indicated that he opened the [product] factory in January 2006. It also noted that in his written claims in the protection visa application he stated that he commenced the [product] factory in 2000. The Tribunal asked why the applicant’s evidence regarding the [product] factory was inconsistent. The applicant indicated that he was confused. The Tribunal indicated that it may consider it reasonable for the applicant to remember the period during which he ran his own [product] factory. The Tribunal explained that inconsistencies in his evidence may raise concerns about the reliability of his evidence. The Tribunal asked the applicant if he sold the [product] factory. He stated that he did not sell it. The Tribunal asked if it was successful. The applicant indicated “not really”. The Tribunal asked the applicant if he came to Australia to work because his business was unsuccessful. He denied this.

1. The Tribunal asked where the applicant’s wife and son live. He indicated the son now lives in [country] where he is studying [subject] at the university in [city]. His son’s tuition fees are paid for by the applicant along with some assistance from his wife’s family. The Tribunal asked about the source of the applicant’s financial support for his son. He indicated that he saved money from running his business in China which was enough to pay for his son’s tuition, about 120,000 RMB (about $25,000). The applicant said that his wife works as a [occupation]. She has a [occupation-related] qualification. She has completed a degree. She lives in  [Village], [Town 2]. She moved there about 2 years ago. She works from her residence. The applicant said his father passed away sometime in 2016 but he could not remember the actual date. When the Tribunal asked why he could not remember the date of his father’s death, he indicated it was because he was not there at the time and the family did not inform him. He thought it was in December 2016.

2. The Tribunal asked the applicant why he does not want to go back to China. He indicated that he is afraid to go back because the issue of the demolition has not been addressed. He is scared because there was friction between himself and the leader of the town and he suffered a physical injury. The Tribunal asked what contact the applicant has had with the authorities in China since arriving in Australia in relation to negotiating compensation for the demolition of the family [property]. He confirmed that he has not had any contact and has not pursued any further negotiations with the authorities. The Tribunal asked why he has not negotiated any further given he can do so from the safety of Australia. He indicated that the price offered is too low. The Tribunal explained that it may form the view that if it was the case he fled China due to fear of the authorities regarding the amount of compensation that he would have pursued the negotiations from the safety of Australia.

3. The Tribunal asked if the applicant’s father’s [property] have been demolished. He stated that they had not been demolished because he had not signed the document. He claimed that without his signature the properties cannot be demolished. The Tribunal questioned why the authorities would not demolish the properties if they wanted to pursue their development plan, given the country information referred to by the delegate. He indicated that in his area, once his father has passed away, the properties belong to him and the authorities cannot demolish the properties without his signature. The Tribunal asked if other [property] in the village have been demolished. The applicant said that some of the other villagers have settled with the authorities and their [property] have been demolished.

4. The Tribunal raised its concern as to whether the authorities would decide not to demolish his father’s [property] merely because the applicant was offshore and had not signed the document, given the country information referred to in the delegate’s decision record. It asked how long these negotiations have been ongoing. The applicant indicated the process started in July 2014 and the [property] could not be demolished because his father was living in them. The Tribunal noted that since then his father has passed away. The applicant indicated that if he does not sign the document allowing the demolition there is nothing the authorities can do, and the government can only develop the surrounding areas where [property] have been demolished.

5. The Tribunal asked the applicant why he did not remain in China to negotiate adequate compensation if it was the case that he was acting for his father and a leader in those negotiations. The applicant was emphatic that he was a leader in the negotiations. The Tribunal asked why he did not return to China and negotiate a settlement using the mediation and appeal mechanisms available. He said it if he goes back to China it will be a big issue and harm to his life. He said there was a big confrontation between him and the authorities.

6. The Tribunal explained to the applicant that there is country information which indicates the Constitution and state compensation laws enable citizens to seek compensation from the State for land appropriation and property demolition. There is also country information indicating that in 2016 measures were introduced to reduce political influence on courts, improve access to justice, strengthen professionalism of the judiciary and increase transparency. It explained that the country information indicated that, in an effort to curb local corruption, new policies shifting funding of courts from the local to the provisional level have been introduced. Since May 2015 there has been a nationwide case filing system and courts cannot refuse to hear cases without sound legal justification. The Tribunal explained to the applicant that it may form the view the country information suggests that the situation has improved since he left. It explained that it may not be satisfied that the applicant would be harmed if he returned to China merely because, as he has claimed, he had not settled on the compensation with the local authorities for the demolition of his father’s [property]. The applicant indicated he was not aware that these changes applied to local government decisions. He believes however that the new processes would be useless because his local leader is very powerful. The applicant stated that he does not want his father’s [property] to be demolished; he wants to retain those [property]. The Tribunal asked the applicant, in those circumstances, if no amount of compensation would satisfy the applicant. The applicant indicated that if the authorities agreed to pay the amount that he seeks he will accept the compensation; otherwise he will not accept it. The Tribunal indicated that this suggests he is not willing to negotiate. He repeated that if the compensation reaches the amount he wants he will agree. The Tribunal noted his evidence that the neighbours have been able to negotiate compensation. It indicated that it may form the view the applicant has not exercised his rights of appeal and that this option is still available to him. It explained that it may form the view it is not satisfied that he will be harmed if he returns to China as the matter can still be negotiated, mediated and/or appealed. The applicant stated that his neighbours in China have negotiated but he came here to hide.

7. The Tribunal asked the applicant if he had any other evidence to give about why he fears returning to China before it closed the hearing. The applicant indicated that he has been in Australia for a few years now. He likes it here because there is freedom of speech and the environment is good. He wishes to remain here permanently. He asked the Tribunal if he could stay here permanently. The Tribunal explained to the applicant its role.

   CRITERIA FOR A PROTECTION VISA

8. 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.

9. 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.

10. 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).

11. 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.  

12. 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

13. 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

14. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the 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 in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: 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.

15. The Tribunal, in reaching its decision, has taken into account all of the evidence before it, as referred to above. It has also taken into account independent country information about China, including that referred to by the delegate in the decision record, some aspects of which are relevant and were discussed with the applicant at the hearing.

16. The Tribunal accepts that the Chinese authorities have undertaken extensive land confiscation to make way for property developments, and there have been significant protests about such confiscation. According to the Department of Foreign Affairs and Trade:

    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.

    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. [1]

    [1] Department of Foreign Affairs and Trade, DFAT Country Report, People’s Republic of China, 3 March 2015

17. More recently DFAT has reported:

    China’s 2016 White Paper on Judicial Reform includes measures to reduce political influence on courts, improve access to justice, strengthen professionalism of the judiciary, and increase transparency. In an effort to curb local corruption, new policy shifts funding of courts from the local to provincial level and courts have started recording attempts to influence proceedings. Since May 2015 there has been a mandatory nation-wide case filing system, through which courts cannot refuse to hear cases without sound legal justification. [2]

    [2] Department of Foreign Affairs and Trade, DFAT Country Information Report People’s Republic of China, 21 December 2017

    Nationality

18. The Tribunal finds that the applicant is a citizen of China, based on his Chinese passport and his oral evidence and will assess his claims on this basis. The Tribunal finds that he is outside his country of nationality. There is no evidence before the Tribunal to suggest that he has a right to enter and reside in any country other than his country of nationality.

    Does the applicant have a well-founded fear of persecution?

19. The applicant has made several claims to fear harm in China for the following reasons. Initially in his written visa application it was claimed that he is a Christian although he has since retracted that claim. At the hearing he confirmed that he is not a Christian. He asserts he was not aware, at the time of the visa application, that the Christian claims had been made. Since making the visa application, in a statutory declaration attested on 16 February 2016 provided to the Department, the applicant has claimed that in 2014 Wendeng City decided that his town, [Town 1] was to be upgraded. His family’s [property] faced demolition. After negotiations with the township leaders he was not satisfied with the compensation rate offered.  He claims that during the negotiations there were numerous arguments and he feared for his safety. At the end of 2014 he decided to run away from China and hide as he refused to sign the documents. He later claimed in his oral evidence to the Tribunal that there was friction between himself and the leader of the town and he suffered a physical injury. He claims to have been the leader of the negotiations with the local town authorities. He claims the mediation, negotiation and appeal processes would be useless in his case because his local leader is very powerful.  He also told the Tribunal that he wants to stay here because there is freedom of speech and the environment is good.

20. For the following reasons, the Tribunal has serious concerns about the applicant’s credibility.  The Tribunal finds the applicant’s evidence regarding the preparation of his visa application to be concerning. He indicated to the delegate that his visa application was prepared with the assistance of someone that he met through a friend. However he told the Tribunal that his visa application was prepared by a Chinese student he met on the plane. He was vague about the identity of the Chinese student. He has claimed that he gave to the student the details of his education, employment and residential history in China, for the purposes of applying for a visa which would allow him to remain in Australia as long as possible. The Tribunal finds it somewhat doubtful that he would be so candid with somebody that he had just met on the plane. He claims he thought he was just filling out a form so he could stay in Australia. He claims he did not really know what visa he was applying for.  He claims that it was not until about 2 months after the plane trip that he was told by the Chinese student that he had applied for protection. He denies being aware that Christian claims had been made. He indicated to the Tribunal that he thought the visa application was about the house demolition in China and having reached a stalemate in the negotiations however he also indicated he did not tell the Chinese student about his issues in China. The Tribunal finds the applicant’s evidence about the visa application process and his knowledge of protection visas at the time of application to be vague, inconsistent and unpersuasive.  It also notes that despite claiming to know about protection claims 2 months after his trip to Australia, he did not make his current claims to fear returning to China because of failed compensation negotiations until February 2016, 10 months after lodging his visa application.

21. The Tribunal also has concerns about the reliability of the applicant’s evidence regarding his employment and business interests in China because it is inconsistent. The applicant acknowledged that he informed the Chinese student about his employment and his information was the source of the information provided in the Form C. It records that he was self-employed from 2000 to 2015 having established a [product] factory in Wendeng City. However in his Statutory Declaration he claimed to have established this factory in 2006. He then indicated to the Tribunal in his oral evidence that he established the factory in about 2012.  The Tribunal also notes that the applicant indicated his business was “not really” successful. Yet he has also claimed that he was able to pay his son’s tuition fees of about 120,000 RMB from the proceeds of the business.

22. The Tribunal gave the applicant an opportunity to explain the inconsistencies in his oral evidence. His only explanation was that he was confused. The Tribunal is of the view it is reasonable to expect the applicant to remember the period during which he ran his own [product] factory.  It is of the view his inconsistencies cast doubt on his claims to have run his own [product] factory. While this issue is not directly related to the applicant’s claims to fear harm in China it does demonstrate that the applicant’s own evidence on his circumstances in China is inconsistent and it raises concerns about the reliability of his evidence.

23. The applicant provided new claims to the Department the day before the applicant’s interview with the delegate, 10 months after lodging the visa application. The delegate raised several concerns about those claims in the decision record, which was provided to the Tribunal by the applicant. The Tribunal has considered the claim that the township planned to demolish several [property] and that his family’s [property] were to be demolished. It has also considered the claim that the applicant was involved in compensation negotiations on behalf of his father. While the Tribunal notes from the country information that the situation he describes is commonplace, as noted in the decision record, the applicant has not provided any documentary evidence of the local government’s intention to demolish his father’s houses. The Tribunal notes in his statutory declaration the applicant merely stated that he had been involved in negotiations with the township leaders but the compensation rates offered were below government instructions so he resisted signing the document and decided to run away from China because he could refused to sign the document if he was not physically present in China. The Tribunal notes however that during the interview with the delegate he then asserted that he was the leader in the village’s negotiations, and there were numerous arguments and he feared for his safety. It notes that in his oral evidence to the Tribunal that he claims not only were there numerous arguments and that he feared for his safety but that he was physically injured. The Tribunal is of the view the applicant’s oral evidence demonstrated his willingness to embellish his evidence on this issue in an attempt to strengthen his claim to fear harm in China. The Tribunal is not satisfied the applicant’s oral assertions that he had numerous arguments with the local authorities and was physically injured are reliable. Nor is it satisfied that the applicant was a leader in the village’s negotiations. It is of the view that if the applicant was genuinely committed to negotiating adequate compensation on behalf of his father he would have at least attempted to continue the negotiations from the safety of Australia. The Tribunal also finds the applicant’s assertion that he left his family in China and came to Australia to avoid signing a document unpersuasive. As raised by the delegate, and at the hearing, given the country information, the Tribunal is not satisfied that the applicant’s refusal to sign a document would prevent the authorities from proceeding with the demolition, as he has asserted. Overall the Tribunal has serious doubts that the applicant was ever involved in negotiations with the local authorities in relation to compensation for the demolition of his father’s [property]. It has formed the view these claims have been manufactured.  It has concluded that if the applicant was genuinely fearful of the local authorities because of failed negotiations and past harm he would have put those claims to the Department at an earlier time. It is not satisfied he is of adverse interest to the local authorities. It is not satisfied the applicant will be involved in negotiations regarding compensation for his father’s [property] with the authorities in China if he returns. 

1. The Tribunal has considered the information the applicant provided regarding [Mr B]’s negotiations with the local authorities, to demonstrate that compensation was calculated in accordance with the formula he described to the delegate. However it is not satisfied the applicant was involved in negotiations with the authorities regarding compensation for the demolition of his father’s [property]. It does not consider this information to be relevant.  

2. The applicant has made general claims about wanting to remain in Australia permanently because there is freedom of speech and the environment is good. He did not however make any specific claims indicating he experienced any problems for these reasons. There is no evidence before the Tribunal to suggest the applicant has been or will be harmed because of a restriction on freedom of speech or because of any problems with the environment in China.

3. On the evidence before it, the Tribunal is not satisfied that the applicant believes he will be persecuted if he returns to China because of failed negotiations with the local authorities regarding compensation for the demolition of his father’s [property], or for any other reason. It is not satisfied he has a well-founded fear of persecution for reason of his political opinion, or imputed political opinion, and/or petitioning the authorities regarding compensation for the demolition of his father's [property], or for any other reason. It is not satisfied that there is a real chance that he would be persecuted for any one or all of the reasons claimed. It is not satisfied there is a real chance of persecution were he to return to China.  Therefore, he does not meet the definition of refugee. Accordingly, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act

   Does the applicant meet the complementary protection criteria?

4. The Tribunal must also consider whether the applicant meets the criteria for complementary protection.  A person meets the complementary protection criteria if there are 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.

5. ‘Significant harm’ for these purposes is exhaustively defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

6. Section 36(2)(aa) of the Act refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.

7. For reasons given above in relation to ‘real chance’, the Tribunal is not satisfied there is a real risk any of the kinds of significant harm set out in s.5(1).  As discussed earlier, the Tribunal is not satisfied that the applicant has suffered harm in the past in relation to his political opinion or imputed political opinion and/or petitioning the authorities regarding compensation for the demolition of his father’s [property]. The Tribunal is not satisfied the applicant will be involved in negotiating compensation with the local authorities if removed from Australia to China. The Tribunal is not satisfied there is a real risk that he would suffer significant harm if removed from Australia to China.

8. The Tribunal is not satisfied therefore that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China there is a real risk of significant harm.

   Conclusion

9. 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).  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).]

10. 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

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

    Denise Connolly
    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.

    …