1700991 (Refugee)

[2017] AATA 1013

1700991 (Refugee) [2017] AATA 1013 (8 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1700991

COUNTRY OF REFERENCE:                  China

MEMBER:Melissa McAdam

DATE:8 June  2017

PLACE OF DECISION:  Sydney

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

Statement made on 08 June 2017 at 2:49pm

CATCHWORDS

Refugee – Protection visa – China – Land acquired for highway – Inadequate compensation – Petitioning bureau – Threats from village committee – Credibility – Inconsistent evidence

LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 5K, 5L, 5LA, 36, 65, 494B, 499
Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] October 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 [in] September 2015.

3. The Delegate refused to grant the visa on the basis that the applicant did not have a fear of persecution or significant harm in China, because he delayed applying for a [temporary] visa to Australia until [date] January 2015.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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.

8. 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

9. 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.

   SUMMARY OF CLAIMS AND EVIDENCE

   Protection visa application

10. The following is a summary of the claims and information provided by the applicant in his Protection visa application:

    a.The applicant was born on [date] in ShijiaZhuang, in Hebei Province in China.  He submitted a copy of the bio-data page of his Chinese passport issued in Hebei [in] 2013.

    b.He lived  in [Village 1], GaoCheng District in ShijiiaZhuang city in China from birth until he came to Australia. After he graduated from high school the applicant went to other places for work.

    c.He married in December 2011. His wife and [child] are living in the family home in [Village 1].

    d.He left China because he could not stand the persecution from the corrupt village officers after he reported their corrupt behaviour.

    e.In March 2012 the village committee called meetings about a highway construction plan for ShijiaZhuang city, to start in October 2012. The highway would go through his village’s farmlands.

    f.The government began acquiring the farmland. The villagers were supposed to be compensated as per the national compensation standard for land acquisition, as well as compensation for crops. Their land was worth about RMB [amount] per mu. The applicant had 5 mu of land so expected RMB [amount] in compensation. The applicant agreed to the acquisition.

    g.In April 2013 the highway project was launched.  The applicant received only RMB [amount] in compensation for his land. The Village Officer told him this was because the village committee decided to also build a biogas power plant and the applicant’s RMB [amount] was his investment in the project. 

    h.The Village Committee had proposed the biogas power plant project previously in 2012 but it was not expected to return much profit so most people did not support the project. The project was not able to commence.

    i.The applicant visited several other people who did not receive their full compensation either. He organised people to talk with the village officers. The village officers wanted to use the compensation money to make money for themselves.

    j.After two months of negotiation, in June 2014, the applicant went to Gaocheng Xinfang Bureau to petition. He reported the [Village 1] village officers’ behaviour.  The Bureau accepted the documents and promised to deal with the issue.

    k.Several days later the Village Officer angrily went to the applicant’s home with some other people. The Village Officer’s relative worked in the Xinfang Bureau and had notified the Village Officer. The applicant acknowledged to the Village Officer that he had made the report. The Village Officer got the other people to grab the applicant and punch him heavily. They threatened there were other measures waiting for the applicant.

    l.Several days later the applicant’s wife was stopped by a gang of youths and threatened that the applicant should stay at home and do nothing.

    m.He planned to live at a friend’s home but the Village Officer stopped him and did not allow him to leave.

    n.He has aged parents and [number] young children. His wife took the children to live at her parents’ home.

    o.The applicant applied for a visa to Australia.  He arrived in Australia [in] February 2015 on a [temporary]t visa.

    p.If he returns to his village his life will be under threat. His village is small and the village officers are like emperors. They are afraid he will petition to ShijiaZhuang City or Hebei Province. If he returns to China they can punch him and threaten his life.

    q.The half year before he came to Australia the village officers troubled him many times. They still threaten his wife and parents. They told his wife and parents to tell him that if he returns to China they would never let him live abroad again.

    Change of Address Form

11. In his Protection visa application the applicant consented for the Department to contact him by email and he provided his email address for this purpose.

12. [In] October 2015 the applicant submitted a Change of Address form to the Department which set out his new address; that it was to be his address for correspondence; and that he  did not agree to the Department communicating with him by email, fax or other electronic means. The field for his email address was left blank.

    Departmental Interview

13. There is no record of how the Department advised the applicant of a scheduled Interview.  According to the Department’s records the applicant did not attend his scheduled Department Interview.

    Notification of the Delegate’s Decision

14. The Delegate’s Decision, dated [in] October 2016, and Notice of the refusal of the applicant’s Protection visa application, were emailed to the applicant at the email address he had initially provided in his Protection visa application form. There is no record of the applicant being notified at the address he supplied in his Change of Address form.

    Application to the Tribunal

15. The applicant applied for review of Delegate’s decision to refuse his Protection visa application [in] January 2017. There is a note from the applicant with the review application that he did not receive a request to attend the Department interview; that when he checked his visa status online he discovered his Protection visa application had been refused; that he did not receive a refusal letter; and so he was applying for review without a copy of the refusal letter.

16. On 24 January 2017 the Tribunal wrote to the applicant to advise him of the view that his review application was not a valid application, because it was not lodged within the statutory time limit.

17. On 31 January 2017 the applicant wrote to the Tribunal stating he did not lodge his review application within 28 days because he did not receive the request to attend a Department interview and did not know he had been refused by the Department.

    Validity of Review application.

18. The evidence before the Tribunal shows that the applicant advised the Department of his updated address for notification and correspondence, [in] October 2015. He also clearly revoked his consent to be notified by email.

19. Given that the Department notified the applicant of the refusal of his Protection visa application by email the Tribunal finds that the applicant has not been notified of the Decision at the address ‘provided to the Minister … for the purposes of receiving documents’, as per s.494B of the Act. The applicant therefore has not been properly notified of the refusal decision as required by the Act. The time limit for lodging a review application has not yet commenced.

20. The Tribunal therefore finds that the applicant’s review application is a valid application, and that it has jurisdiction to determine the application.

    Information to the Tribunal

21. The applicant appeared before the Tribunal on 31 March 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The following is a summary of the information provided by the applicant at the hearing:

    a.The applicant confirmed that all the information in his Protection visa application is correct, and that there was nothing he wished to change or add.

    b.He was born in ShijiaZhuang city in Hebei.  He lived in his village, [Village 1]. He has not lived anywhere else in China.

    c.His first job was in [a company]. He next worked in [a factory].  He did not do any other work in China.

    d.His parents, [children] and wife are in China living together in the applicant’s home village. His parents do casual work. His wife looks after the children. Her parents live in a neighbouring village. 

    e.His family do not have any problems in China.

    f.The applicant does not want to return to China because he still has a conflict with the village committee.  The committee appropriated the villagers’ farmland and didn’t give them compensation. The applicant can’t remember when this happened. It was in 2011 or 2013.

    g.The committee said they will give the villagers [amount] RMB for every mu of land they each held.  The applicant’s family had 5 mus of land but only received [amount] RMB in compensation.  The applicant gave this money to his parents for their savings. His family no longer have any land.

    h.The applicant’s land was in his village. The new highway crosses his land. The highway was built in about 2011. The authorities wanted to start construction on the highway from 2006. 

    i.The authorities told the villagers they wanted their land and after about one month the authorities took the land.

    j.The applicant left China because he had nowhere to go.  After discussing things with his wife he decided to come to Australia. He didn’t want to live in another city in China because it would be unrealistic.  All his parents and grandparents have been living in his home area for a few generations.

    k.He did not continue to live in China because the village authorities kept threatening him because he continually petitioned against them.

    l.The applicant was threatened by the chief of the village committee, [Mr A]. The applicant submitted a Petition at the Petition Office, accusing [Mr A] of corruption.  [Mr A] had a relative at the office who told [Mr A] about the applicant’s petition.

    m.The next day after the applicant had been to the Petition Office, [Mr A] went to the applicant’s home.  [Mr A] brought a few people to the applicant’s house and blocked the house.  They did not allow him to petition.

    n.[Mr A] went to the applicant’s home [number] times. He went there every few days between June and August.  [Mr A] did not allow the applicant to petition in GaoCheng City.

    o.Although the applicant did not live at his house, [Mr A] kept sending warning messages to him. [Mr A] warned the applicant not to petition and to just take whatever amount he was given.

    p.After one year passed the applicant left China for Australia, in 2015.

    q.[Mr A] knows the applicant has left China.  He keeps sending the warning messages because he is afraid the applicant may go back to China and keep petitioning.

    r.The Village authorities stopped going to the applicant’s house in August because he went to ShijiaZhuang City for casual work and was not at home. He lived on [certain] sites, as well as at his home.  Every time the applicant returned to his home the Village Chief would visit the applicant the next day and threaten him not to petition. 

    s.The applicant could not stay in China because he would continue to petition against the insufficient compensation.

    t.The new highway circles the city. Other villagers’ land was also taken and the villagers were also not adequately compensated. They also petitioned for the incomplete compensation. They also had a physical conflict with the village officers. But they are still living in the village.

    u.About [number] villagers, including his friend [name], were affected.  The applicant was the head who lead the villagers to petition. He did this by going to the affected villagers to ask them how much compensation they received. The villagers discussed the situation together and then went to the Petition Office.

    v.When the applicant petitioned the Petition Office he did not know the Village Chief had a relative at the office.  The Village Chief went to the applicant’s house to stop him from petitioning, even though the applicant had already petitioned.

    w.Nothing has happened to his friend, [name].  After he petitioned once he did not do so anymore.  Nothing happened to him because it was the applicant who was the leader of the Petition.

    x.The applicant waited a long time to depart China because he wanted the situation dealt with, but it wasn’t.

    y.If he returns to China he will continue to petition for the [amount] RMB shortfall in the compensation.  If he does not petition anymore then he should have no problem in China.

    z.The Tribunal put to the applicant that the only highway near his village, to appear on publicly available recent maps, was reportedly completed in 2004. The applicant responded that he had nothing to say.

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. The applicant submitted his Chinese passport. On the basis of this document and the applicant’s oral evidence the Tribunal is satisfied the applicant is a citizen of China. The Tribunal assesses the applicant’s claims against China as his country of nationality and receiving country.

    Credibility

23. The Tribunal did not find the applicant a credible witness. His evidence about the key events in his claim was highly vague and inconsistent.

24. In his Protection visa application statement the applicant wrote that the land acquisition for the highway construction was announced in 2012 and commenced in 2012/2013. However at his Tribunal hearing he stated he could not remember when this had happened.  He later stated it was either in 2011 or 2013.  At another stage in the hearing the applicant stated that the highway itself was built in 2011.  He also referred to the plan to build the highway originating in 2006.  These were critical events which, the applicant claims, caused him to leave China and not return.  They also allegedly occurred within recent years. The Tribunal therefore finds that the applicant’s lack of clarity regarding when the events occurred significantly undermines the credibility of his claim.

25. In his written Protection visa application the applicant stated that he lodged a petition with the Gaocheng bureau in June 2014. However at his Tribunal hearing he stated that he was prevented from petitioning Gaocheng city by the Village Chief’s threats. He then further contradicted this by stating that the Village Officer continued to warn him not to petition after he did petition.  He spoke of petitioning to a ‘Petitions Office’ without specifying where this office was located or what organisation it was part of.  He contradicted himself again by stating at hearing that he was “continually petitioning” against the village officials in China.  The Tribunal considers that the applicant’s evidence was confused and not reflective of genuine personal experiences.

26. The applicant also gave inconsistent evidence about how many times the Village Chief went to the applicant’s home to threaten him. He initially stated it was [number] times. However later he stated that it occurred every few days between June and August.  He confused his account further by later stating he was working away from home on [certain] sites and that the Village Chief’s visits would occur every time the applicant  returned home, the day after he arrived.  The Tribunal finds the applicant’s lacking in consistency and clarity.

27. After confirming at hearing that the highway had been constructed on the village farmland the applicant then stated he had no response when the Tribunal put to him there was no indication of any highway being built in his village area in the period he had claimed.  The Tribunal referred to maps which outline only one highway in the vicinity of the applicant’s village, the Jinggang’ao Expressway,  which was reported[1] to have been fully completed in October 2004.  The applicant was unable to provide any explanation for the lack of any evidence of a highway constructed in or near his home village in 2013, or 2011 , or any time after 2011. As put to the applicant, satellite maps currently reveal no other major road apart from the Jinggang’ao Expressway in or around the applicant’s village.  The Tribunal notes that the applicant made no attempt to provide any explanation for this.  Given the controverting country information the Tribunal does not accept a highway was built in or near the applicants village at any time from 2011 onwards.

    [1] See e.g. SA Breaking News, 2017, ‘Life is a 50-lane highway’, 17 February, ‘G4 Beijing–Hong Kong–Macau Expressway’, 

1. In view of the applicant’s unpersuasive and problematic evidence, together with its lack of external consistency with the available country information, the Tribunal does not accept the applicant’s claims as credible. The Tribunal does not accept that the applicant’s farmland was acquired by the village authorities for inadequate compensation, or that the applicant submitted a complaint petition to any higher authority in China, or that the applicant was ever attacked or threatened by village officials.

   Fear of Harm in China

2. The applicant stated at hearing that, apart from his claimed petitioning issues, he would have no problems in China if he returned to China.

3. The Tribunal has not accepted that applicant has petitioned against village officials, and has not accepted the applicant’s claims regarding the cause of his complaint against the village officials.

4. The applicant has given evidence he will have no other problems on China.  No other claim for protection or chance of harm arises on the information and evidence before the Tribunal.

5. On the information and evidence available to it the Tribunal is not satisfied that there is a real chance of any harm, serious or significant, to the applicant in China.

   CONCLUDING PARAGRAPHS

6. 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).

7. 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).

8. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

   DECISION

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

   Melissa McAdam
   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.

   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.

   …