1614475 (Refugee)

[2019] AATA 6824

1614475 (Refugee) [2019] AATA 6824 (23 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1614475

COUNTRY OF REFERENCE:                   China

MEMBER:Penelope Hunter

DATE:23 October 2019

PLACE OF DECISION:  Sydney

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

Statement made on 23 October 2019 at 11:58am

CATCHWORDS

REFUGEE – protection visa – China – imputed political opinion – petitioner – seizure of land – threats by government – father detained – came here on spousal visa – visa in exchange for money – delay in seeking protection – lack of evidence – re-new passport at embassy –  separation from family not considered persecution – credibility issues – decision under review affirmed   

LEGISLATION

Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 424AA, 438, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES

MIEA v GUO (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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 31 August 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 19 June 2015. The delegate refused to grant the visa on the basis that they were not satisfied that the applicant was a person in respect of whom Australia had protection obligations.

   CLAIMS AND INFORMATION BEFORE THE TRIBUNAL

3. The applicant is a [age]-year-old Han Chinese, from Fuqing in Fujian Province, China. His parents and one sister continue to reside in China. He has one sister in Australia. He lived in one address in [a] village, Jiangjing town in Fuqing City prior to arriving in Australia on a Prospective Marriage (subclass TO 300) visa. He completed 11 years of education and graduated from [a college] in Fuzhou City in 2009. He has worked as an [Occupation 1] for [a company] in Wuhai, Neimengqu from 2009 to 2011 and then at [another company] in Longtian, Fuqing from 2011 to 2013.

4. In a statement provided with his protection visa application the applicant set out his claims for protection as follows (in summary):

   i.He was unfairly persecuted in China and escaped to Australia to apply for protection.

   ii.On 5 March 2012, his family purchased [amount] Mu of land from another family for[amount] yuan per Mu. They planted rice and because they worked very hard the rice selling went very well.

   iii.On 12 January 2013, they were told that the government would buy their land and resell to greenhouse vegetable growers for a profit. His father went to argue with the government and they were asked to sign a compensation agreement for [Amount 1] yuan. They were asked to clear the land by [February] 2013. His father asked for more compensation, however, the government refused and they were forced out by the security.

   iv.[In] February 2013, government officials, some local police and security came and used bulldozers and diggers to remove all their crops. They also filled the land with stones. When his father tried to stop them, he was beaten by the police. He went to protect his father and had a fight with the police; he was hit with weapons and blacked out. He was sent to the hospital with a bleeding nose and other injuries.

   v.They tried to engage a lawyer but no one would take their case because they were trying to sue the government.  They were advised to write an appeal letter instead. They did, however, no response was received for a long time.

   vi.They went to the city and provincial government from August to October 2013. They told the receptionists about their sufferings. They were threatened by local government and someone came to their house and said they would be in trouble if they continued to appeal.

   vii.At that time, a relative in Australia introduced him to a girlfriend and so he arrived [in] December with a fiancée visa. However, due to financial problems at home the relationship ended. He thought he could hide temporarily, but they didn’t let this go and detained his father. He wanted to go home but his mother told him that it was dangerous for him to go back.

   viii.The local government officials have colluded with local police. He will be persecuted by the police if he returns.

5. The applicant attended an interview with a delegate of the Minister on 25 August 2016.

   Tribunal application

6. The Tribunal received and application for review from the applicant on 8 September 2016.

7. Contained within the Departmental file supplied to the Tribunal was a Certificate issued pursuant to s.438(1)(a) of the Act, restricting the disclosure of the information contained therein. As discussed with the applicant at the hearing, the Tribunal considered that the Certificate was not valid. The only reason for non-disclosure stated in the s.438(1) Certificate was that the information contained in the folios identified was related ‘to internal working documents and business affairs’. The Tribunal is not satisfied that this provides a sufficient basis for non-disclosure due to public interest. The Tribunal finds the certificate to be invalid and has proceeded to treat the documents in the usual way as if there were no certificate. There were two documents specified in the Certificate. One was a Departmental checklist and this contains no material of relevance to the claims of the applicant. The other document was a record of the visa held by the applicant when he first arrived in Australia. The applicant disclosed in his application that he had arrived on a Subclass 300 Prospective Marriage visa. The Tribunal discussed the terms as disclosed in the Departmental file with the applicant pursuant to the provisions of s.424AA of the Act at the hearing.

8. The applicant appeared before the Tribunal at a hearing on 8 August 2019, to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the English and Mandarin languages. Where relevant the Tribunal has set out the evidence of the applicant below.

   CRITERIA FOR A PROTECTION VISA

9. 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.

10. 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.

11. 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). 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).

12. 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.  

13. 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

14. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration Complementary Protection Guidelines and 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

15. The issues that arise on review are whether the applicant is a person in respect of whom Australia has protection obligations under the refugee criterion or the complementary protection criterion. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Nationality

16. The applicant claims to be a citizen of China and has presented to the Department and the Tribunal a copy of his Chinese passport. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of China. The Tribunal finds that China is his receiving country for the purposes of assessing his claims for protection. There is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any other country for the purposes of the Act.

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

17. The mere fact that a person claims to fear 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, an applicant’s claim 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 the 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 [169-170].

18. The Tribunal, in reaching its decision, has taken into account all of the evidence before it, as referred to above. Having explored the claims with the applicant, for the following reasons the Tribunal is not satisfied that many of the claims of the applicant are credible. As discussed below the Tribunal has concern over his motives in coming to Australia and the delay in his application. The Tribunal found inconsistencies in the applicant’s evidence and that he was very vague in his details of the land confiscation problems affecting his family and the ongoing issues that he would be facing upon return to China. These factors cumulatively demonstrate to the Tribunal the absence of reliability to significant aspects of the applicant’s claims as discussed below.

19. Firstly there are the circumstances in which the applicant first travelled to Australia. The applicant was granted a Subclass 300 Prospective Marriage visa. The applicant told the Tribunal that the relationship ended, and the marriage did not proceed, because his prospective in-laws had asked for money to purchase property in Australia. The applicant told the Tribunal that the relationship ended around March or April 2015. Also contained within the Departmental file was a letter written by the prospective spouse of the applicant on 6 December 2013, the Tribunal put the contents of the letter pursuant to the provisions of s. 424AA of the Act. The relevant information was that the applicant’s prospective spouse had disclosed in writing to the Department that her relationship with the applicant had ended and that she was withdrawing her sponsorship prior to him actually having departed China. The Tribunal further told the applicant that it considered that the information was relevant because it was inconsistent with his claim that the relationship continued for several months while he was onshore. The applicant did not seek additional time and chose to comment immediately and told the Tribunal that actually before he departed China, her parents had asked him to bring money to purchase property in Australia and that there was conflict over money issues and he had asked her parents for more time. He did not think that his prospective spouse had told her parents about the letter and she did not tell him. The applicant claimed that upon arriving in Australia he definitely had meetings with the family of his prospective spouse, and he met with her. In further evidence the applicant said that the family had requested up to [Amount 2] toward a property in Australia and he had asked for time, around two years to earn the money. The Tribunal had concerns that the applicant had arranged for a visa in exchange for payment in an effort to bypass the requirements of the Australian migration system. When the Tribunal asked the applicant whether his sponsorship was in exchange for money, the applicant claimed that it was a genuine relationship and that it was only when he applied for the visa that her parents had made requests for money.

20. Secondly, there is the considerable delay in the applicant seeking protection. As he claimed that he came to Australia due to a genuine relationship the Tribunal asked the applicant why he did not return to China in March or April 2014, when it ended. The applicant responded that he was hopeful that he could save the relationship, by either earning the money or from his land in China. The Tribunal then asked the applicant if he was aware that his stay in Australia was subject to a visa, and he confirmed this to be correct. The Tribunal asked the applicant if he was aware that his initial visa was granted subject to conditions, and he confirmed that he was. Pursuant to the provisions of s.424AA of the Act the Tribunal raised with the applicant the information recorded in the Department file that his initial visa expired on 14 September 2014 and that it was subject a condition that he was to enter into marriage in relation to which the visa was granted within the period of the visa grant. It was discussed with the applicant that the information was important because it demonstrated that he did not comply with the conditions of his visa and also that he remained in Australia unlawfully for a further nine months before seeking protection. The applicant chose to respond immediately and acknowledged that he had not complied with the conditions of his original visa. He claimed that in addition to his desire to salvage his relationship he believed that life in China would be very difficult due to persecution from the authorities. The Tribunal then asked the applicant if he feared harm why he did not take steps to seek a protection visa prior to the expiry of his Prospective Spouse visa. The applicant claimed that he did not know about a protection visa. He said he only learned about it after his father was detained in China, and then a friend told him that he could apply for a protection visa. In response to the further questioning he claimed that his father was detained in January 2015. There still continued to be a delay and the Tribunal questioned why he continued to wait a further six months before applying for a protection visa. In reply he said that he did not know where to seek advice. However, the applicant had earlier disclosed that his sister had travelled to Australia around the same time as he did, also on a Prospective Spouse visa and that the applicant at this time was living with her and her Australian citizen husband. It was considered that his brother-in-law and his family and associates could have assisted him to obtain advice. In reply to this concern, the applicant claimed that his brother-in-law did not speak English very well, and his sister and brother-in-law also needed help when it came to legal or medical matters. As they would have had actual experience with visa matters due to his sister’s circumstances, the Tribunal considered that there were reasonable steps that the applicant could have taken earlier to obtain advice and apply for a protection visa if he had a genuine fear of harm in China. The Tribunal places weight on the delay, and considers that it suggests that the applicant did not have a genuine fear of harm in China or he would have taken steps to apply for the visa proximate to the expiry of his Prospective Spouse visa.

21. Thirdly, in his written claims the applicant set out that his family acquired land in 2012. At the Tribunal hearing he claimed that the land had been acquired eight or nine years prior to the Tribunal hearing, which he later confirmed to be 2010. The Tribunal had concerns about the inconsistency of the date of acquisition. There were numerous discrepancies in dates as discussed below, which led the Tribunal to consider this not just a minor error in recollection by the applicant. When discussing the land, the applicant also frequently referred to it as ‘his land’ and indicated that he had ownership over the land and the funds for the land were to be applied to his new life in Australia. Under questioning from the Tribunal he claimed that his father actually paid for the land but maintained that it was registered in his name. The Tribunal noted that at the time he told the Tribunal he had acquired the land he was working in a [workplace] in inner Mongolia.[1] The applicant confirmed to the Tribunal that he was living away from his home for a number of years while undertaking this employment. He claimed that it was proposed that his father would work the land for him. Noting that the applicant had claimed that his father was a farmer by trade, the Tribunal asked the applicant whether the family had other land. The applicant initially claimed that the land purchased in 2010 was the only land owned, and therefore with its seizure there was a considerable loss of livelihood. However, when the Tribunal asked what his father farmed prior to 2010 the applicant then corrected his evidence and said that they had another small piece of land close by. The Tribunal had further issues with the evidence of the applicant when discussing the land. The applicant claimed that he lived in a small village and his land was in his village. But then he claimed that it took some time to get there from his home, approximately 10 minutes to drive, yet in distance it was within one kilometre of his home. When the Tribunal questioned this he said that it was situated in the mountains over a very rugged path. It appeared to the Tribunal that the applicant was crafting his evidence on the run.

    [1] Question 85, Form C Applicant’s Protection Visa application form at folio 21 Department file.

1. Fourthly, when the Tribunal asked the applicant whether anything had ever been planted on the land the applicant initially claimed that he was not sure. The Tribunal found this difficult to reconcile with his written claims, particularly the fact that he had set out his statement that ‘we were planting rice’ and further his assertion that the ‘rice selling went very well’. When the Tribunal expressed concern at the evidence of the applicant at the hearing he then corrected himself and suggested that rice had been planted. It appeared to the Tribunal that the applicant had little involvement with the land.

2. Fifthly, when the Tribunal asked the applicant to discuss what had happened to the land, he claimed that some people from the government came one day and started digging and taking measurements. He said that this had occurred around 20 days or a month prior to his prospective spouse returning to China in February 2013. He said that he and his father were asked to sign a land transfer agreement and they refused. It was claimed that there were nine or 10 people, these included local government officials, police and professional diggers. Due to their refusal to sign the land transfer the applicant claimed that he and his father were beaten. The Tribunal had several difficulties with this description of events. The applicant presented that these people showed up at the land unexpectedly, the Tribunal therefore questioned what he was doing at the land, because he had earlier given evidence that he was working in [Occupation 2] at this time. In response the applicant said that he was there to protect his father, also he claimed that [Occupation 2] work was just part time, he got around by motorbike, and it was in the local area. Again the applicant appeared to be shifting and creating his evidence to allow for how he was able to be present at the land on the day. The applicant also first described men as professional diggers attending the property, later when his written claims were discussed with him he claimed that he meant bulldozers. The Tribunal is not satisfied that the evidence was consistent.  The Tribunal had difficulty also understanding why rocks would be placed in the land after the applicant’s crops were removed as set out in his written claims as the applicant claimed at the hearing that the land was destined to be turned over to vegetable growers. All of these internal inconsistencies and the shifting of the applicant’s evidence raised questions for the Tribunal about the reliability of these events which formed the core component of his claims.

3. Sixthly, of considerable concern for the Tribunal was that in his written claims the applicant described two events occurring on the land, one [in] January 2013 and the other [in] February 2013, yet in his evidence to the Tribunal he described it as the one event. When the Tribunal pointed out the inconsistency to the applicant at the hearing he claimed that it was because the Tribunal had not asked him about two events occurring. He then said that when they arrived first they started measuring and digging, and during the second incident a fight broke out. The Tribunal did not consider this explanation consistent with his original narrative. This inconsistency further indicated to the Tribunal that the applicant’s claims regarding the land were not reliable.

4. Seventhly, when the Tribunal initially asked the applicant about the fight that occurred on the land he claimed that there was some pushing and when asked whether he was injured the applicant referred to a scar on his forehead. The Tribunal asked about any other wounds and he said that he was hit on the back. In response to questions about medical treatment the applicant said that he and his father attended a local clinic. As they had required medical attention the Tribunal asked the applicant whether he had any medical reports to support he attended on this day. He told the Tribunal that because they just needed dressings and were not admitted that no records would be generated. The Tribunal notes from the applicant’s written claims that he set out that he was beaten with weapons, was rendered unconscious, sent to hospital and sustained a bleeding nose and many other injuries to his body. The Tribunal was not satisfied that the descriptions of the injuries sustained were consistent. It also considered that if treatment for injuries were received from medical professionals some records would have been maintained. These additional inconsistencies and the lack of corroborative evidence caused the Tribunal to further doubt the credibility and reliability of the applicant’s claims.

5. Eighthly, when the Tribunal explored with the applicant further action he took in relation to the land seizure he claimed that because his prospective spouse visited for Chinese New Year 2013[2] for two weeks, the applicant said that he did not take any action until she departed.   It appeared to the Tribunal that the applicant’s evidence to the Tribunal at the hearing regarding his contact with his prospective spouse required adjustments to his description of several events relevant to his claims, further raising concerns about the reliability of events. For example she would have been present [in] February 2013, when in his written claims the applicant set out government officials and security surrounded the land. Yet the applicant’s evidence to the Tribunal was that this event had occurred 20 days to a month before she arrived.

   [2] 10 February 2013.

6. Ninthly, the Tribunal found the applicant’s evidence regarding his petitioning activities unsatisfactory. He claimed that this started after his prospective spouse had returned to Australia. He told the Tribunal that together with his father he attended the offices of the municipal government in Fuqing City and lodged a written report. The Tribunal was concerned that the applicant had not provided evidence of his report or complaint. In reply the applicant claimed that it was just handwritten and he did not keep a copy. The applicant gave a similar response in relation to a further act of petitioning. It was of concern that there was no evidence to corroborate the applicant’s claims and further that he did not consider it necessary to have a record of his grievance at the time. More significantly, the applicant also did not provide believable evidence to the Tribunal as to what he expected to happen once he lodged the report. He claimed that there was no receipt or acknowledgement provided by the government authorities. They also did not tell him when to expect a response, or what would happen after he lodged his report, all matters that the Tribunal considered it would be reasonable for him to clarify if he was pursuing this method of redress. His evidence caused further doubt for the Tribunal as to whether he was describing events that actually occurred.

7. Tenthly, the applicant’s evidence to the Tribunal about the timing of his petitioning was not consistent with his written claims. In his written claims he set out that he made petitions to the city and provincial government between August and October 2013. To the Tribunal the applicant claimed that his first petitioning took place after his prospective spouse departed China and the second application to the provincial government between two to four weeks later. Accordingly this would have taken place around the end of February and March 2013. This discrepancy in the timing of events from his original claims further undermined for the Tribunal the reliability and credibility of his claims.

8. Eleventhly, the persistent exaggeration of the applicant’s claims in his evidence to the Tribunal further operated to undermine the reliability and credibility of his claims. According to his evidence at the hearing he had petitioned twice until late March 2013. In his written claims, aside from his claim that someone had come to his house and said that they would be in trouble if they continued to appeal, he had not stated that anything else had happened to him prior to his departure from China in December 2013. The applicant however, told the Tribunal that within days his first petition to the municipal government had stimulated Mafia members and they started to attack them. This started with verbal harassment at the house. Then at night he claimed that they would come and light fireworks and break windows. Later in the hearing the applicant made claims that in addition to regular verbal harassment stones were thrown into the house. He also claimed that he had to stay with his father to protect him and suggested that gangs wished to assassinate them. In addition the applicant gave evidence that after he departed China his parents had to go into hiding in Fuqing City. This escalation of harassment and the threats of assassination and claims that his family were in hiding were considered more than mere verbal flourishes by the applicant.

9. Twelfthly, the Tribunal did not consider the applicant’s evidence about events occurring after he departed China to be reliable.  Although the applicant claimed that due to fear and harassment his parents went into hiding, he claimed that in January 2016 his father returned to the village. The trip coincided with the social occasion of Chinese New Year. According to the applicant his father was detained for 15 days by the local police for an unclear crime of non-compliance with the government or violation of public order. Aside from one further incident of petitioning in 2017, the applicant had not given evidence that his father continued to petition while in hiding. The Tribunal asked the applicant if he had any evidence of his father’s detention and he claimed that there was none. He just claimed that after 15 days his father was discharged without conviction. The Tribunal had concerns as to why, three years after the land had been seized, and in the absence of further ongoing petitioning and protesting activity the applicant’s father would be of any interest to the local authorities in the applicant’s village particularly when they had never taken action to arrest or detain either the applicant or his father before, especially proximate to their petitioning activities. It did not make sense to the Tribunal that they would take this action three years later, especially as it had potential to draw greater attention to the activities of the local authorities who the applicant claimed were fearful of exposure. It appeared to the Tribunal that the applicant had created this claim to provide an explanation for his delay in claiming protection, having arrived in Australia several years earlier. It was another example of the exaggeration of his claims.

10. Thirteenthly, it did not make sense to the Tribunal that after already having claimed the land and it being transferred to other people the local authorities would still be pursuing the signing of the land transfer agreement. The applicant told the Tribunal that he believed that if he returned to China he would be beaten or intimidated into signing the land transfer contract. He further claimed he would be killed if he attempted to take his complaint to Beijing. The Tribunal considered that if the applicant and his father were genuine in pursuing the matter he would have done more than just petition twice in 2013. The Tribunal asked the applicant whether he had pursued any further action from the safety of Australia, and he did not directly answer the question. Instead, he claimed that his father had again approached the authorities in September 2017 and again they received a warning from the government officials and Mafia members that if they did not sign the land transfer agreement they would be persecuted. The applicant further claimed that in addition a threat was made against him and his father was told ‘even your son who lives in Australia, when he comes back he will be in trouble’. Again the applicant had no copy of his father’s 2017 complaint to the government authorities. The Tribunal questioned how the local government officials and Mafia members could threaten his father when he was supposedly in hiding. It did not accept the unimpressive explanation offered by the applicant that the threat was communicated through neighbours in their village. The Tribunal noted that the applicant’s sister in China was not in hiding and if the local authorities had wanted to threaten members of his family, they could easily have found her. A further unpersuasive explanation was offered by the applicant that as his sister had married she was now considered to belong to a separate household. The Tribunal also questioned how the local government authorities knew that the applicant was in Australia or whether he intended to return. The applicant’s evidence on this matter appeared to be another exaggeration of his claims further created to provide the illusion of an ongoing threat. The Tribunal asked the applicant what had happened to the land transfer agreement and he said that his father had the copy. The Tribunal then queried why a copy had not been produced to support the applicant’s claims. In reply the applicant stated that the Australian government would not pay any attention to a document from China. The Tribunal does not accept this explanation, and again considered the omission of any corroborative evidence to support the applicant’s claims further undermines their reliability.   

11. Fourteenthly, given the time that had elapsed, the events that had transpired and his claimed need for funds in Australia, it was illogical to the Tribunal that the applicant and his father would continue to hold off signing the transfer agreement and hold out for greater compensation. According to the applicant the land was purchased for the sum of [Amount 3] Yuan yet compensation was only offered in the sum of [Amount 1]. The applicant at no point contended that this offer had been withdrawn. In circumstances where it was claimed that the land had been seized, their protests had not been acknowledged, someone else had the benefit of and was now planting vegetables on the land, it did not seem credible that his father would instead leave the village, his home, and other property, and incur the further expense of renting a house in hiding in the city. The Tribunal did not understand why his father would endure imprisonment rather than accept some form of compensation for land that he could no longer use, and resume his previous life. Further, the applicant also represented that he was to obtain the financial benefit of the land. In these circumstances as the applicant had intended to migrate to Australia permanently, his prospective spouse was expecting [Amount 2], and his family was unable to derive any further financial benefit from the land, surely it was in his interest to at least obtain some compensation. When the Tribunal put this concern to the applicant he made claims about the farming land being his native land and that he could not abandon it. The Tribunal also found this explanation unfounded as the land had only been acquired shortly before the applicant departed China and he had not provided any reliable evidence that he actually worked the land. The applicant further claimed that the Tribunal should understand how hard it was for a farmer to earn [amount] Yuan and the loss of [amount] Yuan on the land would be fatal. Again the Tribunal could not follow the logic of the applicant, because by not accepting the compensation offered the loss had been [Amount 3] Yuan plus any profits from produce from the land, plus the ability to farm his father’s other land and the ongoing costs of accommodation in Fuqing City. The Tribunal considered that surely this was more fatal to the financial survival of his family. The applicant then countered that the offer was a cruel violation of human rights, and due to the sheer unfairness and injustice he would not sign the land transfer. Although the applicant passionately decried the unfairness at the hearing, as set out above, with the small number and infrequent complaints that were made, the Tribunal was not satisfied that he or his father were genuinely agitating for justice or redress from the authorities.  

12. Overall, considering the totality of the evidence before it, the Tribunal was not satisfied that the claims by the applicant regarding the seizure of his family land were reliable or credible. Due to the delay, lack of consistency, exaggeration and lack of corroboration and plausibility with respect to the applicant’s claims, the Tribunal did not accept that the applicant or his father were ever harmed by local authorities or the police in 2013 in the circumstances or for the reasons claimed. It is not accepted that that he or his family were harassed and intimidated prior to his departure from China to sign a land transfer agreement. The Tribunal also is not satisfied that the applicant or his father undertook protesting activity with the local, municipal or provincial government prior to his departure from China. The Tribunal is not satisfied that he applicant or his father undertook any protesting activity as claimed. Further as the Tribunal does not accept that the family land was seized in accordance with the claims of the applicant, it does not accept that his father was ever detained, or that he is in hiding or that local government authorities and the Mafia continue to harass and place pressure on his father to sign the land transfer agreement. As the Tribunal is not satisfied that the events in the applicant’s claims are genuine, it is not satisfied that the applicant or any member of his family have come to the adverse attention of local authorities in China or Mafia members. Furthermore the Tribunal is not satisfied that the applicant or any member of his family will in the future, be involved in activity, political or otherwise which will be of adverse attention to the local government authorities, Mafia members or anyone else in China.

13. On the evidence before it, the Tribunal does not accept that the applicant has a well-founded fear of persecution for reasons of his political activity, his imputed political activity or his association with relatives who are known to the authorities.

14. At the Tribunal hearing the applicant raised a further claim that he feared separation from his family in Australia if he was to return to China. The applicant said that he had married a [Country 1] student in Australia on a temporary visa in March 2019. They were also expecting their first child in the coming months. The Tribunal asked the applicant why he could not go to [Country 1] if he wished to remain with his partner. The applicant responded that he considered that the [Country 1] government was no different to the Chinese government. The Tribunal did not accept this proposition and questioned the applicant why any of the authorities would have any interest in him in [Country 1]. The applicant conceded that he had not committed any offences that would be of interest to [Country 1] authorities. He said that he had made some enquiries about a partner visa to [Country 1] but it looked a bit difficult and he needed some documents. He claimed that if he had to go back to China to get documents he would be arrested by the local authorities. The Tribunal questioned the applicant as to what documents and he suggested a marriage certificate. The Tribunal then raised with the applicant that he had been married in Australia not China so this would not be available. Furthermore the Tribunal does not accept, as set out above that the applicant is of any interest to local authorities in China, so it does not accept his claim that he would be arrested if he went to his home to obtain documents.

15. Further, the applicant expressed concern that if he returned to China that his future child may not be able to register and this may be another reason for the separation of his family. The applicant did not dispute that he could register his child with officials in Australia. The Tribunal earlier noted that the applicant had already approached the Chinese embassy in Australia to renew his passport. It did not appear that he had any concern about the Chinese government generally. The applicant confirmed his concerns were with the local authorities. He submitted that if he had to return to his hometown to obtain household registration for his wife and the child he was expecting, because of his previous protesting activity he would be arrested by the local authorities. Again, as set out above, the Tribunal does not accept the applicant’s claims relating to his family land and protests or that he would be of any interest to the local authorities for this reason. The Tribunal further considers that procedures that the applicant’s current spouse may have to comply with to obtain a visa for China would be laws of general application. Any treatment of the applicant’s spouse due to her different nationality and the different nationality of his future child, which may cause separation, would be due to laws of general application, and not persecution directed at the applicant for a reason in the Act. Finally, the Tribunal is not satisfied that the act of removal of the applicant from Australia, by the Australian government would also be an act of persecution. This again is the consequence of the application of Australia’s migration laws. Further under the Act the agents of persecution are to arise in the applicant’s country of nationality, not Australia.

1. The Tribunal does not accept that there is a real chance that the applicant would be persecuted for any of the reasons or a combination of any of the reasons set out in the Act. Therefore it does not accept that the applicant is a person in respect of whom Australia has protection obligations under s.36(2) of the Act.

2. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether nevertheless he may meet the ground for the grant of a protection visa under the complementary protection criteria.

3. As indicated above the Tribunal did not find the applicant’s claims regarding his experiences in China, the claims of seizure of land, protesting, harassment or detention of his father, or the reasons that he fears harm by the local authorities and Mafia members to be reliable or credible. It is also not satisfied that any separation he may experience from his wife and future child, as a consequence of their different nationality would give rise to significant harm as defined in the Act. Any separation would be a consequence of the migration and nationality laws of China, which are laws of general application, and the separation would not be intentionally inflicted upon the applicant to cause significant harm.  Finally, as the harm under s.36(2)(aa) of the Act must arise as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, it does not encompass harm inflicted by the act of removal itself.

4. The Tribunal does not accept on the evidence before it, 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 that he will suffer significant harm, as defined, as a result of his political opinion, imputed political opinion or the political opinion of members of his family or because of potential separation from his wife and unborn child.

5. For the reasons given above the Tribunal is not satisfied that the applicant satisfies s.36(2)(aa) of the Act.

6. 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

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

   Penelope Hunter
   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.

   …