1704038 (Refugee)
[2019] AATA 5922
•30 July 2019
1704038 (Refugee) [2019] AATA 5922 (30 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1704038
COUNTRY OF REFERENCE: China
MEMBER:W Frost
DATE:30 July 2019
PLACE OF DECISION: Canberra
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 30 July 2019 at 3:23pm
CATCHWORDS
REFUGEE – protection visa – China – imputed political opinion – land expropriation – inadequate compensation – threatened demolition of property – physical assault – detention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
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
This decision relates to an application for review of a decision made by a delegate of the Minister for Immigration on 9 February 2017 to refuse to grant the applicant, who claims to be a citizen of China, a protection visa under s.65 of the Migration Act 1958 (Act).
On 28 April 2016, the applicant was granted a [temporary visa] .
[In] August 2016, the applicant arrived in Australia on the [temporary] visa.
On 6 September 2016, the applicant applied for a protection visa.
On 9 February 2017, the delegate of the Minister for Immigration and Border Protection refused to grant the protection visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations under the Act and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant.
On 7 March 2017, the applicant applied to the Tribunal for a review of the delegate’s decision to refuse to grant him a protection visa.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (Regulations). An applicant for a protection visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c) of the Act. 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.
Section 36(2)(a) of the Act 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. 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) of the Act.
Under s.5J(1) of the Act, 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.
If a person is found not to meet the refugee criterion in s.36(2)(a) of the Act, 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 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) of the Act, which are extracted in the attachment to this decision.
Mandatory considerations
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 – 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.
TRIBUNAL HEARING
On 12 June 2019, the applicant appeared before the Tribunal to give evidence and present his arguments regarding his protection visa application. The Tribunal hearing was conducted with the assistance of an interpreter in the Chinese (Mandarin) and English languages. The applicant’s migration agent also attended the hearing.
Personal details
The applicant confirmed his date of birth, which corresponded to that contained in the photocopy of the passport provided to the Tribunal, being a copy of the original issued by the Chinese Government. This photocopy also matched that contained in the Department’s file. In this regard, the Tribunal is satisfied, for the purpose of this decision, that the applicant is a Chinese national. China is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
The applicant stated that he is from [Town 1], [within a named city in] Jiangsu Province in China. This accords with the address recorded in the protection visa application documentation in the Department’s file, including the Statement.
The applicant asserted that he is married with one son. The applicant, his wife, son and mother lived in a [size] square metre two-storey townhouse in [Town 1], Jiangsu Province in China.
Application
The applicant confirmed that: his application for a protection visa was completed with the assistance of his migration agent; the application was translated back to him; and the application was correct and no changes or additions were required to be made to the application.
The applicant confirmed that the one and a half-page typed statement titled Statement he signed and provided to the Department of Immigration and Border Protection (Department) with his protection visa application was correct and he did not wish to add or change anything in that statement.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant should be granted a protection visa to remain in Australia because he has a well-founded fear of being persecuted in China for one or more of the five reasons set out in the definition of ‘refugee’ in s.5H and s.5J of the Act and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
In 2013, the applicant received notification from the [Town 1] Government that his property, together with others in the neighbouring area, was to be demolished for redevelopment. The amount of compensation offered for the demolition of the property was 1,000RMB (China’s official currency) per square metre. The applicant discussed the compensation amount with his family and neighbours who had also been given demolition notices and they all agreed that it was unsatisfactory given what the applicant believed was the market value of the property. The applicant asserted that the compensation amount should have been 3,500RMB or more per square metre.
The applicant refused the compensation offer and tried to lodge a complaint with the [Town 1] Government, however he was told by the [Town 1] Government that the village government was responsible. The applicant said ‘they are together’ and that the village government ‘is listening to what the Town Government say’. The applicant did not provide any detail about this assertion.
On 28 November 2013, the applicant asserted that village officials attended his property and ‘pushed down some of the property’, being the front wall at the entrance of the property. The applicant said he tried to stop them but was pushed to the ground by ‘about’ three people and kicked. He said that he injured his forehead, broke his right leg and had to stay in hospital for ‘half a month’. The applicant stated that he ‘rested’ for 5 months at home as a result of his injured leg.
The applicant said he complained to the village government but ‘it is a little bit like this’ and ‘later the demolition is like this and it didn’t go further’. The applicant did not expand on this assertion or what he meant by this statement.
Following his recovery from the injured leg, the applicant returned to his employment in Nantong as [an occupation for] a foreign company that produced [products]. The applicant stated that there was ‘no mention’ of the proposed demolition until May 2015 when the village officials ‘talk about demolition again’. The applicant requested compensation for his injuries from 2013. They refused and ‘they do this and that and blah, blah, blah and they call the police and were arrested for a few days’. The applicant did not provide any further detail about this incident, but claimed that he was detained for three days. The applicant also did not provide any detail about his claimed period of detention. According to the applicant, he was arrested because he had refused to accept the demolition for no reason and was not cooperating with the government.
The applicant asserted that the village officials cut off water and electricity to the property in 2013 and 2015 and that he had to borrow a ‘temporary line’ to access electricity, with the applicant’s mother having to fetch water from another unspecified source.
After the alleged incident in 2013 and following his recovery, the applicant asserted that he was afraid the village officials would harass him so he rented a property in Nantong, close to his place of employment, which he said is approximately [distance] from the property. When asked by the Tribunal whether he moved to Nantong for work, the applicant said that ‘work is only one of the reasons, it’s also because they kept harassing us’. The applicant did not provide any detail about this alleged further harassment from officials. In this regard, the applicant confirmed that nothing occurred regarding the disputed demolition between November 2013 and May 2015.
The applicant claimed that his wife and child also moved to the rented property in Nantong, where they currently reside. The applicant’s mother remains at the family property the subject of the demolition order in [Town 1]. When asked by the Tribunal why his mother remains at the property, the applicant referred to her age, her desire to remain at the family property and that officials would not harm a woman in her [age range] and ‘because of Chinese tradition people wouldn’t want to move out of their property’.
The applicant confirmed that nothing further happened in relation to him, his family or the family home sought to be demolished, in the period after May 2015 and up until the time he arrived in Australia on a [temporary] visa [in] August 2016. The applicant also confirmed that nothing was said to him or occurred at his place of employment in relation to the property at any time, including between 2013 and 2015.
When the Tribunal asked the applicant whether the property had now been demolished, he said it had not and was ‘still there’. When asked about the status of neighbouring properties, the applicant said they were also ‘still there’. When asked why they remained undemolished, the applicant claimed that ‘we refused so they didn’t demolish ours’.
The applicant asserted that he cannot return to China because he ‘cannot lead a normal life because they harass me again and again and again’. When asked why they would keep harassing him, the applicant said ‘because of the property demolition’. The applicant did not provide any detail about the claimed future harassment from officials, including in circumstances where no action had been taken by officials in relation to the applicant or the property since 2015.
The applicant confirmed that he had no issue with exiting China on his journey to Australia, and the Tribunal noted to the applicant that if he was of interest to Chinese officials they have procedures in place to prevent a person leaving. The applicant said he applied for his visa through a friend because he thought it would be refused if he had applied, but the applicant provided no further detail about this assertion.
In summary, the applicant claimed that in 2013, village officials attended his property and pushed down the front wall at the entrance of the property; the applicant tried to stop them but he was pushed to the ground and kicked; the applicant sustained a broken leg and other injuries as a result of this altercation; officials kept harassing the applicant; in 2015, village officials raised the proposed demolition again with the applicant and called the police and he was arrested and detained for three days for refusing to cooperate with the government; and the applicant cannot lead a normal life if he returns to China because officials will keep harassing him.
FINDINGS
The Tribunal does not accept the applicant’s abovementioned claims or that these events occurred as described by the applicant. Although the Tribunal accepts, on the information before it, that the applicant’s property was proposed to be demolished in 2013, this demolition, and that of neighbouring properties has not occurred. The Tribunal also accepts that the applicant suffered a broken leg in 2013, but it does not accept that this injury and other claimed injuries were sustained as a result of an alleged physical altercation with village officials regarding the demolition.
Based on the information provided by the applicant, and the lack of any corroborating evidence, the Tribunal finds that the applicant was not involved in a physical altercation with village officials regarding the demolition in 2013 and he was not harassed by officials or arrested and detained in 2015 as claimed. The applicant did not provide the Tribunal with anything more than basic information regarding his claims. The applicant was unable to provide detail to support a conclusion that he was telling the truth and it appeared that he was not recalling events that had happened, but was making up his evidence as he went along because he could provide little detail in relation to these alleged events. As a result, the Tribunal finds that the applicant’s evidence was superficial, lacked detail and did not have the ring of truth to it.
The Tribunal also finds that officials will not harass the applicant upon his return to China because any such harassment, if it previously occurred (which is not accepted by the Tribunal), ended in 2015. The applicant remained in China for a further fifteen months without incident before arriving in Australia on a [temporary] visa, the property remains undemolished and his mother continues to live in that property. The applicant also had no issue leaving China. In this regard, the Tribunal notes the country information regarding China provided by the Department of Foreign Affairs and Trade, which states that:
China’s major airports have a centralised system with name matching alert capabilities. Facial recognition technology is also widely deployed at all international checkpoints (air, land and sea). Security monitoring capabilities at airports are comprehensive, and departing passengers pass through several identity checks (including passport and ticket/boarding pass inspection) run by different agencies between arriving at the airport and boarding a flight.
CONCLUSION
The Tribunal has considered the applicant’s claims individually and cumulatively and it is not satisfied that the applicant has a well-founded fear of persecution.
The Tribunal concludes that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act. The Tribunal has also 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).
Therefore, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution because of his race, religion, nationality, membership of a particular social group or political opinion. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations because he is a refugee or 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.
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
The Tribunal affirms the decision not to grant a protection visa to the applicant.
W Frost
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
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.
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.
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.
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.
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.
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
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.
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.
…
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Standing
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Statutory Construction
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Natural Justice
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