1702458 (Refugee)

[2017] AATA 1640

1702458 (Refugee) [2017] AATA 1640 (8 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1702458

COUNTRY OF REFERENCE:                  China

MEMBER:Angela Cranston

DATE:8 September 2017

PLACE OF DECISION:  Sydney

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

Statement made on 08 September 2017 at 11:47am

CATCHWORDS

Refugee – Protection visa – Federal Circuit Court remittal – Religion – Christian – Inadequate land compensation – Previous harm – Credibility issues

LEGISLATION

Migration Act 1958, ss 5(1), 36, 65, 91R, 91S, 438(1)(a), 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 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] April 2014 and the delegate refused to grant the visa [in] January 2015.

3.    In his application, the applicant stated the following:

My name is [name], born on [date]. I came to Australia with my [father] with a [temporary] visa on [date]/1/2014. As there is no religious freedom in China and my land was expropriated without reasonable compensation, I was persecuted by local government and the police. We fear to go back to China. Now we apply for a protection visa. I hope the Australian government can protect us.

There is no religious freedom in China. My father believes in God and is a farmer. After he believed in the Lord in 2007, he often told us the benefits of believing in Jesus. As there is no religious freedom, in March 2013, my father and I were detained and tortured by police for one day as we attended church activity. I fear Chinese Communist Party. After I was released, the police often monitored my life. My family had been living in fear. There are no human rights and no religious freedom in China. When living in China without religious freedom, I felt very depressed. I prayed to God that I did not want to live in fear. That’s the reason why I came to Australia.

I have been in Australia for three months. My father and I went to a local Chinese church. Brothers and sisters are very kind and helpful. Thank God for bringing us to Australia and let me stay in Australia to worship the Lord freely.

My father started to know about Christ in October 2007. He was guided by his friend. Later he often told my mother, my brother and me about Jesus’s miracles.

In January 2008 the head of our village gave us oral notice that our [land] and other villages’ lands should be expropriated to build a train station. My father agreed as we could get compensation. But when we knew the compensation was about RMB [amount] we didn’t accept the compensation. Other villages also didn’t accept the compensation. Our lands were expropriated. We couldn’t grow food and didn’t have any income. The compensation was not reasonable. But the village head said it was good for villages to build a train station. We must accept that. That was required by the government. On [date]/03/2008 the police came with bulldozers. Although our villages oppose the action of the bulldozers as they removed food from our lands. Villager [Mr A] and other villages including my father and I, talked to village head to ask for justice. Later we quarrelled with police. [Mr A] physically collided with the police. He was arrested by the police and charged with assaulting police.

They were the government offices in the place. How can we fight them? We heard the villagers lost their lives as they opposed to the lands expropriation. Our people’s life is worthless. We know that the provincial government can give us reasonable compensation, but the heads of the town and the village are corrupt. They took away the money our villages should get.

We also organised a petition. But we were stopped in the town by the police. The police said we had no evidence. The petition was unreasonable and disturbed social order. If we petition again, we would be sent to jail. We were sent to our village and warned that if we left our villager we would be detained. As the government and police were afraid that we petitioned again, they often came to our village to check. When they came to our home one police said if we petitioned again we were detained in labour camp.

After my brother went [Country 1] in 2009, he often told us about the religious freedom in [Country 1]. On [date]/10/2010 my father was baptised and became a Christian. He was very happy.

On [date]/3/2013, my father and I went to gathering at sister [Ms B]’s home. When we started our gathering some police came in. They searched [Ms B]’s home and collected the Bible. There were other [brothers] and sisters in the gathering. We were arrested and taken to the local police station. The police asked me who was the organiser, who attended the gathering, what were brothers and sisters phone numbers. I said nothing. I prayed to God in my heart. When the police found I said nothing they beat me. They asked me to hold my head in my hands and squat to reflect on myself. The police set our gatherings were illegal and we were spreading superstition. The police forced us to write guarantee letters that we guaranteed not to attend cult gatherings again. Brothers and sisters, my father and I were detained and tortured for one day. We prayed to God and didn’t surrender. My brother and I were released after my mother paid RMB [amount].

My father and I didn’t want to live in fear. My father didn’t want my family to live in fear. With my father’s friend’s help, my father and I got visas to Australia. Thank God. My father and I came to Australia. I also hope my mother can come to Australia. But my grandmother is old and she stays home to take care of my grandmother.

4.    The applicant sought review of the delegate's decision and the Tribunal, differently constituted, affirmed the delegate's decision on 21 June 2016. The applicant sought review of the Tribunal's decision by the Federal Circuit Court and [in] February 2017 the matter was remitted back to the Tribunal for reconsideration.

5.    The matter is now before the Tribunal pursuant to the order of the Federal Court.

6.    The applicant appeared before the Tribunal on 2 August 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7.    The applicant stated he came to Australia [in] January 2014. The applicant stated that his application form was completed with the help of his agent who had read its contents back to him in Mandarin. It was correct and he didn’t want to change or add anything.

8.    The applicant stated his last address in China was [address], Fuqing City, Fujian where he had lived for 15 years. His mother was still living at the above address where she farmed.

9.    The applicant stated he had never been detained.

10.      The applicant stated he came to Australia to escape surveillance by the Chinese police who were watching him. He stated when he was about [age] or [age] the government tried to take away his land because they were building a train station. He also stated he and his friend had argued with the government and police and he was arrested.  He also stated they took all of his land. The Tribunal put to him that he had just told the Tribunal that he had never been detained. The applicant stated he thought the Tribunal was referring to his time in Australia.

11.      The Tribunal put to him that at Departmental interview [in] January 2015 he stated he was not involved in the land dispute. He stated he could not remember.

12.      The Tribunal also put to him that he had just stated that his mother was living at the same house that he had been living at for the last 15 years which did not suggest that his land had been taken. He stated he was talking about the farming land. The Tribunal put to him that his father told the Tribunal on 21 June 2016 all of his land was taken. He stated his father was wrong.

13.      The applicant stated he was released one day after he was detained. The Tribunal asked if he did anything in relation to the land after he was released and he stated he joined the others because the compensation was not what the government originally promised. The Tribunal asked if he did anything else to save his land after he was arrested and he stated they armed themselves with farming tools including knives and axes and fought 400 people including the police force and that a lot were injured but he himself was not badly injured. When asked why none of that was in his written statement he stated those details were on-line and he had told this to decision-makers. The Tribunal put to him that it may not accept that he would not have mentioned these details in his statement if in fact they had occurred. He stated he was trying to tell decision-makers but they said they could check the facts on line so he gave up.

14.      The Tribunal again asked if he did anything in relation to the land after he was released and he stated after they fought, they also made trouble in the police station but they took away the land. The Tribunal asked if the police approached him for any other reason after he was released and he stated they came every 2 to 3 days to his house to monitor him because they were afraid that he would interfere with their work. The Tribunal put to him that none of that was in his written statement and asked why. He stated he did not know.

15.      The Tribunal put to him that in his statement he stated he organised a petition and that was why the police approached him. He stated he did not understand what a petition was. The Tribunal put to him that a petition was a complaint about something which also asked people to support the complainant. He stated he did not do that.

16.      The applicant stated that he also believed that more and more things would be torn down in his area. The Tribunal put to him that his mother was still living at his home and he agreed.

17.      He also stated he went to a Christian family gathering with his father and they were arrested and beaten about two or three years after his land was taken or 2010/2011. The applicant said he was not Christian. When asked if he had been to church in Australia he said he had only been when his friend took him which was about two times this year. When asked why he went to church if he was not Christian he stated he accompanied his friend and observed that people would sing and chat.

18.      The applicant said he could not go back to China because he was fearful of the police who had beaten him at a very young age and felt that he had no freedom to do what he wished.

19.      The Tribunal put to him that his father told the Tribunal on 21 June 2016 that there were no other occasions on which he was detained or harmed by police or the authorities after 2008.  The applicant stated his father was old and didn’t receive sufficient education and only went to primary school.

20.      The Tribunal put to him that it had concerns about whether he was telling the truth because it may find that his story changed with each telling and may be different to his father’s evidence and it may also not accept that any of the alleged events had occurred.

21.      Following the hearing, the Tribunal sent the following:

The land dispute
At interview between you and the Department of Immigration [in] January 2015 it is
orally recorded that the following exchange took place:
Q. What else happened to you before you came here?
A. One thing is the land dispute.
Q. That does not really affect you because you were too young to be involved in the land dispute?
A. No I was grown up when the land dispute happened.
Q. So what happened to you in terms of this, how did this dispute affect you?
A. When I was young I thought being a police is a holy occupation but the land dispute shows that the police is on the same side as rich people but to the poor people they are violent. I have some video clips to show you to demonstrate how violent the police are towards the ordinary people.
Q. But in terms of you personally, how were you affected?
A. Because I feel upset for fellow villagers and my father was beaten.
Q. You not involved in that riot?
A. That’s right.

This is relevant because the Tribunal may find this is inconsistent with your evidence at hearing which was that you were involved and arrested and the Tribunal may find you are not credible. This is relevant because if the Tribunal finds you are not credible, then subject to your comments, the Tribunal would affirm the decision under review.

Your claim that you were detained at a Christian gathering
At the Tribunal hearing on 21 June 2016 it is orally recorded that the following exchange took place between your father and the Tribunal:
Q. Were you just arrested and beaten on that one occasion in 2008?
A. Yes. I was afraid and I didn’t go there anymore…
Q. Are there any other reasons that you fear returning to China?
A. It’s better if I can stay here it’s useless for me to give them trouble.
Q. Are there any other reasons other than land appropriation that you fear returning?
A. And also the villagers bully us because we are honest person. Because I am a very honest man.
Q. In your claims for protection you also said you feared returning to China because you are a Christian?
Yes.

This is relevant because the Tribunal may find that your father’s inability to state, unprompted that he feared returning to China because he was harmed and detained after 2008 is inconsistent with your written statement which was that you and your father were detained at [Ms B]’s home and your evidence at hearing on 2 August 2017 which was that you and your father were at a Christian gathering and were beaten and the Tribunal may find you are not credible. This is relevant because if the Tribunal finds you are not credible, then subject to your comments, the Tribunal would affirm the decision under review.

1. The applicant failed to respond.

   RELEVANT LAW

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

   Refugee criterion

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

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

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

   26. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

   27.      There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

   28. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

   29.      Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

   30.      Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

   31.      Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

   32.      In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

   33.      Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

   Complementary protection criterion

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

   35. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). 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.

   36. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

   Section 499 Ministerial Direction

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Preliminary matter

   38. As a preliminary matter the Tribunal notes that there is a certificate made by a delegate of the Minister under paragraph 438(1)(a) of the Migration Act in relation to folio 87 of the Department's file [number]. That section permits the Minister to certify that the disclosure of information would be contrary to the public interest for any reason specified in the certificate 'that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed'. It states that the disclosure of this information would be contrary to the public interest because the folios in question 'contain information relating to an internal working document and business affairs'.

   39.      This certificate is clearly invalid and of no effect because the fact that the folios contain information relating to an internal working document and business affairs is not a reason that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the information should not be disclosed.

   40.      However, this document is not relevant to this review.

   Substantive issue

   41.      The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugee Definition in China and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of his being removed from Australia to China, there is a real risk that he will suffer significant harm.

   42.      In his application, the applicant stated that in January 2008 the head of his village gave notice that their [land] would be expropriated to build a train station and that villages including he and his father talked to the village head to seek justice and later, quarrelled with police however at departmental interview [in] January 2015, the applicant stated that he was not involved in that riot. The Tribunal finds this is inconsistent with the applicant’s evidence at hearing which was that he was involved in that riot and arrested. In addition, even though the applicant stated at hearing that after he was released, the police came every 2 to 3 days to his house to monitor him, that was not in his written statement. In addition, in his written statement he stated that after he was released he organised a petition however when that was put to him at hearing, he stated he did not do that. The Tribunal finds that the changing nature of the applicant’s evidence is such that it does not accept that he was recalling events that had actually occurred.

   The applicant’s claims that he was detained at a Christian gathering

   43.      At Tribunal hearing on 21 June 2016 it is orally recorded that the applicant’s father told the Tribunal that he was arrested and beaten on only one occasion in 2008, however at hearing the applicant stated that two or three years after his land was taken (or in 2010/2011) he and his father were arrested and beaten at a Christian family gathering. The Tribunal finds that the applicant’s father did not state at hearing on 21 June 2016 that he was detained or harmed by the authorities after 2008. This is inconsistent with the applicant’s written statement and the applicant’s evidence at hearing on 2 August 2017 which was that he and his father were at a Christian gathering two or three years after his land was taken and were arrested and beaten.

   44.      The Tribunal does not accept that the applicant’s father would not have said that he was detained or harmed by authorities if in fact this had occurred.

   45.      The Tribunal is not satisfied that the applicant is a credible witness. The Tribunal is not satisfied that the applicant’s land has been expropriated or that he and his father were detained along with others or that the applicant was subsequently monitored, or that the applicant subsequently organised a petition or warned. Neither does the Tribunal accept that the applicant’s father believed in the Lord or advocated the benefits of believing in Jesus, or that the applicant’s brother told them about religious freedom in [Country 1], nor that the applicant’s father was baptised and became a Christian, nor that the applicant and his father attended a Christian gathering, nor that the police arrested, detained and tortured them together with the others that were at the gathering. Neither does the Tribunal accept that they were forced to write guarantee letters not to attend cult gatherings again. Neither does the Tribunal accept that the police monitored his life after he was released, or that the applicant or his father attended any Christian gatherings once he came to Australia.

   46.      After considering the applicant's articulated claims, the Tribunal is not satisfied that if the applicant returns to China he has a well-founded fear of persecution for reasons of his race, religion, gender, age, political views or for any other reason.

   47.      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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

   48. 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).

   49. The Tribunal has rejected the entirety of the applicant’s claims including the claim that he has attended Church in Australia. Given this, the Tribunal is not satisfied that as a necessary and foreseeable consequence of the applicant being removed from Australia to China, that there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

   50. For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa.

   51. 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

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

   Angela Cranston
   Member