1705245 (Refugee)

[2021] AATA 678

1705245 (Refugee) [2021] AATA 678 (5 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1705245

COUNTRY OF REFERENCE:                   China

MEMBER:Roslyn Smidt

DATE:5 March 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 5 March 2021 at  4.30 pm

CATCHWORDS

REFUGEE – protection visa – China – political opinion – protests against the government – land resumption – detention – monitoring by neighbours – corrupt local officials – internal relocation – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 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 dependents.

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 and Border Protection on 15 February 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants who are citizens of China applied for the visas on 23 August 2016. The delegate refused to grant the visas on the basis that she did not find the claims put forward to be credible.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.

7. 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

8. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   BACKGROUND

9. [The] applicant] is [an age]-year-old married woman from Jiangsu Province in China.  Her husband [named] is included in the application as a member of her family unit. He has not made any individual claims. They have an adult daughter who remains in China.

10. The applicant and her husband obtained passports in China [in] 2015 and were granted visitor visas for Australia on 26 May 2016. They arrived in Australia [in] June 2016 and applied for protection on 25 August 2016.

    SUMMARY OF CLAIMS

11. The applicant claims that she would be at risk of harm if she returned to China because of her involvement in protesting the government’s failure to pay adequate compensation for the acquisition of land in her parents’ village in 2019.

    COUNTRY INFORMATION

12. The following is from the DFAT country information report on China dated 3 October 2019 and is intended as context for the applicant’s claims.

13. Despite recent reforms leading to improved legal protections for property ownership and compensation for expropriated land, protests and petitions related to land seizures by officials and the conduct of developers remain common in China. According to the national department responsible for local petitioning offices in 2014, an estimated four million disputes over expropriated land and property demolitions occur every year.

14. China’s Constitution and State Compensation Law enables citizens to seek compensation from the state but the public’s confidence in the judicial system and ability to afford lawsuits is generally low. The Chinese Government encourages Chinese citizens to submit complaints through government-controlled websites and local petitioning offices.

15. In practice, the treatment of individual cases depends heavily on the attitude of local officials towards the individuals and circumstances in question, making it difficult to generalise. Some protests have resulted in the resignation of local officials and direct elections of village officeholders, others have been violently suppressed.

    CLAIMS AND EVIDENCE

16. In the statement which accompanied her initial application the applicant said that land owned by her parents was scheduled to be expropriated for development of residential and commercial property in 2015. They were offered compensation well below the legally required rate. Some villagers affected by this proposal resisted and were arrested in August 2015. In September 2015 the applicant and some villagers went to the [named] County Government several times to complain, but they were ignored. [In] October 2015 they travelled to Nanjing to lodge a petition, but they were arrested at the station and detained. After their release they were monitored on instructions from the police. The applicant felt frustrated and helpless as nobody in China cared about ordinary people, so she and her husband obtained visas and came to Australia.

17. According to the delegate’s decision the applicant repeated the substance of these claims during an interview on 9 February 2017. She also stated that she and the other villages involved in petitioning the government had attempted to hire a lawyer, but nobody would take their case. She said that she feared returning to China because she would be arrested because of her profile as a protestor.

18. At the hearing the applicant said that she had worked part time at factories in the past but had worked as a farmer on land which she and her husband owned following her marriage in in 2013. She earned about 7,000 to 8,000 RMB a year from the farm (about $1200 Australian). Her husband worked in [another industry] and earned between 10,000 and 30,000 RMB a year (at most $6,000 a year). They owned their own home but had no other source of income. Their daughter lives in their house.

19. The applicant said that her parents and the other villagers were paid some compensation for the land that was taken and that land had now been developed.  Her parents continue to live in the house that they lived in when the land was taken. They are old and do not work, but earn some money raising [animals] on land which they still own. The applicant confirmed that she and her husband had not lost any land to development.

20. Later in the hearing the applicant said that she and her husband were unemployed prior to coming to Australia. She said they had stopped working when their land was taken. I observed that she had previously stated that her parents had lost some land, but she and her husband had not. She confirmed that neither she nor her husband had lost land but said that after her parents had lost their land, she did not feel like continuing to work on her own land.

21. The applicant said that her parents had not been involved in any of the protests regarding the proposed acquisition as they were too old for such activities. Her husband participated in some protests but was not present when she was arrested in October 2015 as he was busy.

22. The applicant said that after she and the other protestors were released from detention local officials made villagers monitor them. She was prevented from leaving the village sometimes visited by officials who threatened her and told her not to speak to the police. This was done because the officials were corrupt and they were afraid that their corruption would be reported to higher levels of government. I observed that she could have used the telephone or the internet to contact officials outside the village. She said that she had not known much about the internet and she was just a farmer so she did not know the number to call to make a report. I advised her that it was my understanding the internet was widely available in China and it seemed unlikely that she would have been unable to find the appropriate number. She maintained that her claims were true.

23. I asked the applicant how she had been able to travel to Australia if she was not able to leave the village. She said that her husband had arranged for a friend to obtain a visa for them and they had left secretly.

24. I asked the applicant what information she and her husband had provided in order to obtain a visitor visa for Australia. She said that they had stated that they were coming as refugees. I observed that she would not have been granted a visitor visa if she had stated this on her application and asked what information she had supplied regarding her employment. She said that neither she nor her husband had jobs when they applied for their visas and indicated that they had stated this in their applications.

25. After some discussion it was established that the applicant’s visitor visa application had been prepared by her husband’s friend and she did not know the contents. She said that they had only paid the visa application fee and no money was paid to this person or anyone to help them obtain the visa. I advised her that I had difficulty accepting that she would have been able to obtain a visa if neither she nor her husband was working unless she had obtained false documents regarding their employment and financial situation.  I advised her that I was aware that it was possible to obtain such documents, but it was my understanding that this would involvement payment of a fee.  I observed that this suggested that she and her husband had provided false information and documents in support of their visitor visa application or she had provided false information regarding her employment on her protection visa application and that rather than being a poorly paid farmer she had been working in a relatively well-paying job prior to leaving China. She said that she did not know what was stated in her visitor visa application because her husband had made the arrangements and as she was a woman, she did not have any involvement or knowledge. I observed that she appeared to be a strong and independent woman and advised her that I had difficulty accepting that she did not know anything about the application lodged on her behalf. She maintained that she was telling the truth.

26. I noted that the passport which the applicant had used to enter Australia stated that she had previously held another passport. She confirmed that this was correct. She said that she had obtained a passport sometime between 2000 and 2010 but had never used it. When asked why she had obtained the first passport she said that there was no particular reason, she just followed other people who were obtaining passports.

27. I asked the applicant if any of the people she had been arrested with in October 2015 had faced further problems. She said that she had lost touch with them and did not know. I asked if she was in contact with her parents or daughter. She said that she only contacted them at Chinese New Year because she did not want to cause problems for them. I observed that many Chinese citizens lived in Australia and contacted their relatives without causing problems for them. She said that her situation was different because she had left the country secretly. I observed that this did not appear to be the case as she had departed by air on her own passport. She did not dispute this but said that she had left the village without telling the local officials.

28. I noted that according to the applicant’s evidence her problems appeared to be limited to the actions of some corrupt officials in her local area. I asked why in those circumstances she and her husband had decided to come to Australia. She said that if they had stayed in China the officials would have found them. She was told that it would be better to go to another country and that Australia was a good place.

29. I advised the applicant that even if I accepted her claims regarding her problems in China, there was no suggestion that she had been charged with any offence and apart from the protests in relation to her parents’ land over five years ago she had not been involved in any other protests or political activities and it seemed unlikely that local officials would cause her any problems if she returned to China now. She made no comment regarding her fears on return but said that she and her husband would like to remain in Australia and work. I advised her that my role was restricted to determining whether she was entitled to protection in Australia and advised her to seek appropriate advice regarding any other migration issues.

    CONSIDERATION OF THE APPLICANT’S CLAIMS AND EVIDENCE

30. For the following reasons I do not accept that she faces a real chance of experiencing serious or significant harm if she returns to China now or within the reasonably foreseeable future.

31. In the first place, I found much of her evidence at the hearing to be confused and unpersuasive. For example, she initially stated that she had worked as a farmer prior to coming to Australia, but later said that she and her husband had ceased work after her parents lost their land and were unemployed from then until their departure for Australia. She failed to provide a coherent reason for this but appeared to suggest it was by choice, a claim which I find implausible. She also gave differing accounts of the manner in which she obtained a visitor visa for Australia, all of which I found implausible. While these issues are not directly relevant to her core claims, I find them to be a strong indication that she is not a reliable witness.

32. Secondly, the applicant had given differing accounts of her reasons for leaving China and fearing to return. In her written submission to the Department she said that following problems gaining proper compensation after her parents’ land was taken for development, she felt frustrated and helpless as nobody in China cared about ordinary people so she decided to leave. During her hearing with the delegate she said that she feared she would be arrested because of her involvement in protests. She did not repeat this claim at the hearing. She claimed that she feared corrupt local officials. While these claims are not necessarily mutually exclusive, the applicant’s failure to repeat the claim that she feared arrest because of her profile as a protestor at the hearing and instead claimed for the first time that she feared corrupt local officials casts significant doubt on both claims.

33. Thirdly, I found the applicant’s evidence regarding her problems with local officials implausible. She claims that they confined her to her village and that they would harm her if she returned because they feared she would report their corrupt activities to more senior officials. However, according to her evidence, she and other protestors from her parents’ village had already lodged complaints with higher officials outside her village before this. Far from causing problems for the local officials, this resulted in the arrest of the applicant and the other protestors by police in Nanjing. In these circumstances it is not plausible that local officials would have feared exposure of their corrupt activities.

34. In addition, I do not accept that the applicant was prevented from leaving her village after October 2015 by local officials in order to prevent her reporting their corruption.  She was clearly able to leave her village as she did so when she travelled to Australia. Furthermore, she does not claim to have been prevented from using the telephone or the internet, which suggests she could have contacted officials outside the village at any time, which would render the restrictions on her movement pointless. When I pointed this out at the hearing, she did not claim that she was prevented from making reports by phone or the internet because she had been threatened and was fearful. She said that she lacked the knowledge or sophistication to use the internet or locate an appropriate telephone number. I find this claim implausible. I note that she, her husband or someone close to them obtained contact details for the Australia Embassy or Consulate and lodged a visitor visa application during the time she claims to have been confined to her village.  

35. Finally, I find it impossible to reconcile the applicant’s claim that she could not relocate inside China because she would be at risk of harm from the officials in her local area throughout China with the claim that these officials feared exposure of their corruption to more senior officials. Clearly local officials who fear exposure of their activities to more senior officials outside the local area do not have significant power or influence outside their local area and would not have posed a threat to the applicant if she moved to another part of the country.

36. After considering all of the evidence I am not satisfied that the applicant was involved in protests relating to the acquisition of her parents land, or that she was arrested or threatened or confined to her village because of her involvement in these activities or because officials feared she would expose them. I find that these claims were concocted for the purpose of gaining protection in Australia.

    CONCLUSIONS

37. There is no credible evidence before me which suggests that the applicant genuinely fears serious or significant harm on return to China or that there is a real chance that she would suffer such harm for any reason. I am therefore not satisfied that she has a well-founded fear of persecution for any of the reasons set out in s.5J(1) if she returns to China within the reasonably foreseeable future or that 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 she will suffer significant harm.

1. The applicant’s husband has not made any independent claims for protection.

2. For the reasons given above I am not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c) and cannot be granted the visa.

   DECISION

3. The Tribunal affirms the decision not to grant the applicants protection visas.

   Roslyn Smidt
   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.

   …

   5H    Meaning of refugee

   (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

   (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

   (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

   Note:     For the meaning of well-founded fear of persecution, see section 5J.

   …

   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 the 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.

   …

   36     Protection visas – criteria provided for by this Act

   …

   (2)A criterion for a protection visa is that the applicant for the visa is:

   (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

   (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (a); and

   (ii)holds a protection visa of the same class as that applied for by the applicant; or

   (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (aa); and

   (ii)holds a protection visa of the same class as that applied for by the applicant.

   (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.

   …