1711036 (Refugee)

[2020] AATA 5135

1711036 (Refugee) [2020] AATA 5135 (2 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1711036

COUNTRY OF REFERENCE:                   China

MEMBER:Nora Lamont

DATE:2 November 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 2 November 2020

CATCHWORDS

REFUGEE – protection visa – China – parents’ land acquired by developers while applicant in Australia – intimidation and threats by gangsters paid by developers – low offer of compensation refused by parents, and continued protests – development now almost complete – fear of arrest and persecution – credibility – vague evidence – application for protection made after cancellation of student visa and period as unlawful non-resident – country information about land disputes, social compensation fee and registration of children – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 36, 65

Migration Regulations 1994 (Cth), Schedule 2

CASES

Kopalapillai v MIMA (1998) 86 FCR 547

MIMA v Rajalingam (1999) 93 FCR 220

Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445

Randhawa v MILGEA (1994) 52 FCR 437

Selvadurai v MIEA (1994) 34 ALD 347

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 dependants.

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 to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of China, applied for the visa on 16 October 2014 and the delegate refused to grant the visa on 5 May 2017.

3. The applicant appeared before the Tribunal on 30 January 2020 and that hearing was adjourned due to interpreter issues. The hearing resumed on 27 August 2020 and the applicant was able to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant was not represented in relation to the review by his registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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.

6. 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).

7. 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.

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 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’).

9. 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 expressly fnor protection status determination purposes, to the extent that they are relevant to the decision under consideration.

10. The applicant was born in Fujian Province in the People’s Republic of China and lived there prior to his arrival in Australia in 2008. The applicant first arrived on a subclass 571 (student) visa and subsequently applied for a subclass 572 (student) visa which was granted in February 2010. However, the applicant stopped studying and his visa was cancelled on 7 July 2011.

11. The applicant is now married with two children a [Age 1]-year-old and a [Age 2] year old. His wife was on a student visa but is now unlawful.

12. The applicant travelled to Australia on a valid People’s Republic of China passport and stated that he was a national of China. The delegate had no issues with the applicant’s identity. Therefore, the Tribunal has assessed the applicants claims against China as their country of nationality and receiving country for Complementary Protection purposes.

    Claims

13. The applicant’s claims as summarised accurately by the delegate can be summarised as follows:

    ·He left China to study in Australia.

    ·He has experienced intimidation in China as ‘we are vulnerable.’

    ·His family has a small business operating [farming] and have land near the seaside.

    ·Developers and the Chinese authorities plan to redevelop the area for a holiday resort.

    ·His parents have protested against the proposal as it means they would have to give up [farming].

    ·The authorities have pressured his family to move to another area, and developers have paid gangsters to threaten and intimidate the village including his family.

    ·When the village confronted the authorities in protest, some were arrested.

    ·His parents told him not to return to China as he will be persecuted when he participates in the protests.

    ·He fears being detained, harmed and persecuted by the authorities in China, as they continue to take the land and force the village to give up their business, land and livelihood.

    ·They cannot survive without their land and business.

    ·As the authorities support the property developers, he does not believe they will protect him and the villagers.

    Tribunal Hearing

14. At the hearing the Tribunal asked him about his claims which centred around his parents and when he wasn’t even in the country, and his parents had moved to their other home. The applicant explained that they took his parents land for a beachside resort, he pointed out there are photos of the site (provided to the Tribunal). His parents had a [business] and the land was taken away. The applicant said that in 2013-2014 they were at the [business] still living there then they moved back to the family home. The Tribunal asked the applicant why at the Department interview he told the delegate his parents had already moved in 2014. The applicant reiterated that no his parents were still at the [business] in 2013-2014. The Tribunal asked the applicant if his parents received money for their [business] to which he said they were offered a low price. He told the Department that they didn’t take any funds for the property. There was confusion around the interpreter at this point and the Tribunal adjourned the hearing to resume at another day.

15. It should be noted that the applicant also had issues at the second hearing with the interpreter. When asked why he continued to have issues with the interpreters he said that the interpreter was confusing the member. After some discussion the hearing went ahead with the interpreter.

16. At the resumed hearing the Tribunal asked the applicant if his parents received money for the [business] or not. The applicant said that the government offered his parents [Amount] but they refused to take the money. When asked why he said that it was far lower than the market value. But in the end the applicant’s parents did not receive any money and the development continued.

17. When asked what his parents are doing now, he said they are jobless and rely on the money he sends them. The Tribunal asked the Tribunal why any of this affects him since he hasn’t been in China nor party to any of these situations he said that it was the previous plan he would take the house but his parents house is too far away from the [business].

18. The applicant said that the government said they wanted to take away the applicant’s ancestral home in 2017. When asked why he said because it was worth money.

19. The applicant said he feared being detained harmed and persecuted by authorities as they continue to take the land and force the village to give up their land. He would want to resist and he cannot let them confiscate the land; they use hoes and that’s violent resistance, That is why he will be arrested as he will continue to contest the land he will join them and he will be arrested.

20. The Tribunal asked him why after six years they are still protesting, and the development is almost built? The applicant said because they wanted compensation and they will continue to protest.

21. When asked what he feared would happen to him upon return to China he said he would launch a protest and get arrested and he might be arrested and persecuted.

22. The applicant also added to his claims by stating that he cannot register for the Hukou for his children’s registration. He said if you have a child you need to get a permit and previously, I tried to get one and it was stopped by the village leaders and he could not get a permit. He said he sent the birth certificate to his parents.

23. When the Tribunal asked him why he couldn’t relocate to another part of China he said because of the household registration and that the Tribunal should have known that.

    Unlawful

24. From 7 July 2011 until 16 October 2014 the applicant remained unlawful. At the Tribunal hearing the applicant was asked why he did not attend his course as a he was on a student visa and why he remained unlawful for a period of three years from 2011-2014. The applicant said at the time he was in his early twenties, so he didn’t know how to manage this. The Tribunal asked him how he managed to get to the Australia and get a visa but yet couldn’t work out how to get a visa to regulate his visa. The applicant said that someone in China organised the visa.

    Findings

25. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

26. The Tribunal also accepts that 'if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt'. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203): The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible and must not run counter to generally known facts.

27. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

28. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220). Case Number 1913126 Page 5 of 9 21. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)

29. The Tribunal found the applicant not to be a credible witness. The applicant was vague and seemed to struggle to talk about his claims in a comprehensive way. The applicant supplied the Tribunal with some photos of what appear to be people protesting as evidence of his family protesting.

30. The Tribunal accepts his parents had a land dispute and lost their business; however, the Tribunal finds that it has nothing to do with the applicant himself as he has been in Australia since 2008 and has not returned to China for twelve years. The applicant proposes that if he is returned, he will start a protest and be arrested and persecuted. However, the land dispute whilst with his family took place over six or so years ago and the applicant himself said the development was almost already completed. The Tribunal does not consider that the applicant would be protesting a land dispute that would have ended many years ago.

31. Further, the Tribunal does not accept the applicant’s claims of a government dispute over the ancestral home. The applicant said that his home was far away from the [business] and it appears he added this new claim on after the long period between his protection visa application and the Tribunal hearing.

32. The applicant has not experienced serious harm on the basis of any refugee nexus in the past in China, and this leads the Tribunal to find remote the chance the applicant would face serious harm for any refugee nexus in the foreseeable future.

33. Country information does indicate that land disputes do occur quite frequently in China. [1]

    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 State Bureau of Letters and Calls (the national department responsible for local petitioning offices) in 2014, an estimated four million disputes over expropriated land and property demolitions occur every year. DFAT is aware of, but cannot verify, reports describing aggressive, and sometimes violent, action by private security contractors hired by property developers to manage protesters.
    China’s Constitution and State Compensation Law (1994; amended 2010) enables citizens to seek
    

    [1] DFAT Country Information People’s Republic of China 3 October 2019 page 39

    compensation from the state but the public’s confidence in the judicial system and ability to afford lawsuits is generally low (see also Judiciary). The Chinese Government encourages Chinese citizens to submit complaints through government-controlled websites and local petitioning offices. Under regulations promulgated in 2014, the central government no longer accepts petitions that should be lodged at local government level. The regulations include measures designed to improve transparency and responsiveness. Sources report that local officials are encouraged to ensure protests do not reach Beijing.

34. The Tribunal accepts that a land dispute occurred with the applicant’s parents and that there are frequent land disputes in China.

35. The Tribunal refers to the decision in Selvadurai v MIEA & Anor [1994] 34 ALD 346 4 in which Justice Heerey found that a delay in lodging a refugee application was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution. This delay in lodgement adds to the Tribunal’s concerns.

36. The Tribunal considers that the applicant has a level of capability to understand and deal with more complex situation such as considering his visa status in Australia. The considerable delay in lodging the protection visa is of serious concern to the Tribunal. The Tribunal considers that had the applicant held a genuine fear of persecution arising out of his circumstances that the applicant would have sought to lodge a protection visa application much earlier and the delay leads to a consideration that his claims in this regard are not urgent or genuine.

37. The social compensation fee is or would be applied to everyone and as such is a law of general application and therefore it is not considered to be persecutory or discriminatory towards any individual or any group of individuals. Noting that the applicant had his children overseas he would be able to register his children upon return with translated birth certificates, family household cards (parents) passports, and a marriage certificate. [2]

    [2] Country Policy and Information Note China: Contravention of national population and family-planning laws. AAT Tribunal response from DFAT 29 April 2011

38. The applicant is also fearful that he will not be able to register his children for a hukou (household registration). In August of 2015 the Fujian Public Security Department implemented a new ‘Household Registration Management System’ which directed local authorities to not treat the payment of Social Compensation Fees as a prerequisite for accepting an application for a hukou. Children whose unauthorised birth might have gone unregistered are now able to apply for a hukou irrespective of whether the Social Compensation fees have been paid. [3]

    [3] DFAT Thematic Report Fujian Province, People’s Republic of China 16 December 2016.

39. Further DFAT states that for the vast majority of residents in Fujian, Social Compensation Fees operate akin to a form of unwelcome taxation, rather than as a punitive arbitrary measure. [4]

    [4] DFAT Thematic Report Fujian Province, People’s Republic of China 16 December 2016.

40. Overall, given the above information the Tribunal considers that the applicant can return to Fujian Province and register his children so they may receive a hukou and they will not become “black” or illegal children. The applicants may face a Social Compensation Fee, or they may be able to simply register their children born overseas following the above information on returnees.

41. For the reasons above, the Tribunal is not satisfied that the applicant faces a real chance of serious harm on return to China, now or in the reasonably foreseeable future for any convention reason. The Tribunal finds the applicant does not have a well-founded fear of persecution within the meaning of the convention.

1. Nor does the Tribunal accept that there are grounds for believing that as a necessary and foreseeable consequence of being returned to China, there is a real risk the applicant will suffer significant harm based on his parents land dispute from the authorities or developers or anyone else. The Tribunal finds the applicant’s claims are largely speculative in regard to what he would or would not do upon return to China.

2. The Tribunal finds he does not face a real risk of significant harm in relation to the land dispute or any other reason if removed from Australia to China. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s.36(2)(aa).

3. For the reasons 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. It follows that he is also unable to satisfy the criterion set out in s.36(2)(b) or (c). As he does not satisfy the criteria for a protection visa, he cannot be granted the visa.

   DECISION

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

   Nora Lamont
   Member