1712063 (Refugee)

[2019] AATA 6337

1712063 (Refugee) [2019] AATA 6337 (28 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1712063

COUNTRY OF REFERENCE:                 China

MEMBER:Angela Cranston

DATE:28 October 2019

PLACE OF DECISION:  Sydney

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

Statement made on 28 October 2019 at 3:44pm

CATCHWORDS
REFUGEE – protection visa – China – complementary protection – feared harm from property developers – claimed property developers harmed family – loan sharks – inconsistent evidence – credibility issues – fabricated claims – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), 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 and Border Protection on 11 May 2017 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 20 January 2016. In his application, the applicant said:

My father worked for [his employer] since 2001 his position recently was [Occupation 1]. My mother works for the same business and she is an [Occupation 2].

I graduated in June [year] from senior high school in [County 1]. I loved my study and I always had god academic result. So my parents sent me to study in Australia after I graduated from senior high school in China.

I received a call from my mother after my arrival in Australia in less than one month, she told me that because the area of my father’s factory occupied a large area and it belongs to a redevelopment zone, so local property developers wanted to have the factory land by forcing purchase, which included surrounding area and our family house is in it too.

The developer offered a very low price to purchase the land, my father said no to them. Because the developer has backups, so they bashed up my father. After bashing him up, they told him to be well behaved and they will return next day. My father was sacred and he reported to the local government for the incident, but the report he sent has been held by someone somewhere.

Without local government’s support, my father was very scared. Next day, the developer came with thugs, bashed my father up first, then said to my father that you want to appeal, go ahead, to do it again. We gave you a face, but you did not take it. Listen to us, sign the paper but no money now. If you do not sign it, wait and see, we will bash you up every time we come. They left.

My parents have no jobs since, they stayed at home, so scared of those thugs to come again.

Without family financial support, I do not have money to cover my living costs. I have to stop to go to school. I need to make money for my own living. My father told me do not come back to China, one more has to suffer if I returned and there is more trouble for him to worry about.

I am scared that the same thing will happen to me, I do not want to be bashed up by others, I am so afraid every time when I think about it.     

3.    The delegate refused to grant the visa and the applicant applied for review.

4.    The applicant appeared before the Tribunal on 10 October 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant at hearing confirmed he understood what had been said once it had been interpreted to him.  

5.    The applicant stated he came to Australia in September 2015 on a student visa. Before he came to Australia he lived at ,[County 1], Hengshui City Hebei with his parents, [sibling] and grandmother for 19 years. The applicant stated his parents were no longer at the above address, were in the same town but was then unable to state their new address. When asked where his parents were, he stated his father was ill and in hospital and because of that, they sold the house and had moved in July 2018.

6.    The applicant stated that he wrote his statement in Chinese and the agent translated it. She had not translated the English back to him in Chinese.

7.    The applicant stated his father just had [surgery], his father and mother did not work and had last worked in August 2016. When asked why his parents had not worked since then, he stated his grandmother died in August 2016 because she had been tortured. He stated they had been forced to relocate their house, but his father had been unhappy and they did not move. He stated that close to the date of the project, people forced them to move and when they became physical towards his father, his mother and grandmother tried to stop them, his grandmother was pushed into a wall and bumped her head and eventually died. This, he said happened in June 2016. He stated his grandmother sustained injury and his father got angry and fought with the people and was injured and had to stay in hospital.

8.    When asked if this was the first time they were violent towards his family, he stated yes, and that when his grandmother died as a result and his parents talked to the police who said there was not enough evidence. When asked who was violent towards them, he stated they were from the relocation office.

9.    The applicant confirmed that they wanted his family to relocate from their home and came in June 2016, bashed his father, mother and grandmother. He stated his grandmother died of this and his father was weak and suffered [medical] conditions.

1. The Tribunal put to him that all of this happened after he applied for a protection visa. He agreed. When asked why he applied for a protection visa,  he stated that his father had been threatened but it was not physical but when the starting time approached they became more violent.

2. When asked why he could not return to China, he stated because of these people, his parents could not work and there was no money and his mother had no choice but to borrow money from loan sharks. He stated he learned the people from the relocation office and the loan sharks were from the same group and worked together and took away his [sibling] and detained [his sibling] and his mother even sold the house to pay the debt which was not enough so the loan sharks took his [sibling] away and also said when the applicant returned they would get him, break his legs and use him as a beggar to make them money.

3. The Tribunal asked if the only thing the people from the relocation office wanted was his house. He said yes, and they offered compensation that was too low. When again asked if they wanted anything else from his family other than the house he stated they wanted the house and the land.

4. When again asked if there were any other reasons he could not return to China he stated he had been in Australia for 4 years and had started a normal life not as a simple student, that is he had transformed from student to non-student and was an adult. When asked if he worked, he stated he started to work in 2019. He also stated his father could not work because of health, his mother looked after him and the applicant was the only one who could provide an income. He also stated he had a girlfriend in Australia who had bought property and he had attachment here.

5. The Tribunal put to him that it may find that what he said at hearing was different from his written statement. He said he applied for the visa one month after he came to Australia and something happened in 2016 and things changed.  The Tribunal then put to him that in his statement he said his father worked for a business, property developers wanted the factory and the surrounding land that included his house and that when they offered his father money for the land, his father said no so they bashed him up. Then they came the next day and bashed him up again and said sign the papers and if you don’t, we will bash you again. The Tribunal put to him that sounded different to what he had said at hearing which was that before the developers came to ask for his house in 2016, his father had never been bashed and secondly, the only reason they came was because they wanted the house.

6. The applicant stated all of this started because of his grandmother’s death but when he prepared the statement, his grandmother was still alive so at the beginning when they came, they were not that physical, they threatened his father but there was not much violence and the violence escalated later when the starting date was near.

7. The Tribunal also put to him that at hearing he had said that his parents stopped working in August 2016 but in his statement he said his parents had no jobs since the people wanting the property had come and that they stayed at home because they were so scared of those thugs. He stated his protection visa application was lodged in January 2016 and he said his parents did not have a job but they returned to work and in August 2016 stopped. The Tribunal put to him that it had listened to the Departmental interview on 2 May 2017 when he told the Department that his father had been in hospital for [a certain amount of time] because of injury from being bashed and if he had been in hospital for [a certain amount of time] on 2 May 2017 it may be difficult to accept that he was working in August 2016 (which was also when he allegedly stopped). The Tribunal also put to him that his evidence appeared to change with each telling and may lead the Tribunal to conclude he was not telling the truth. He stated he thought the Tribunal was giving him a hard time. He also stated those things happened a long time ago, were not his experiences and his evidence may not be accurate. He also stated whether the Tribunal believed him or not, he could not return to China.

8. Following the hearing, the Tribunal wrote to the applicant indicating that on 2 May 2017, the following conversation occurred:

Q. How long was your father in hospital? Why is he in hospital?
A. For [a certain amount of time].
Q. For [a certain amount of time] he has been in hospital. Why is he in hospital? What is
he sick with?
A. Because the injury incurred from the bashing was quite heavy. He is also
very advanced in his age, he is really old. And his body is not fit…

This is relevant because the Tribunal may find this evidence is inconsistent with your
at hearing on 10 October 2019 which was that your parents were working in August
2016. If the Tribunal finds your answers inconsistent, then subject to your comments, the Tribunal would affirm the decision under review. 

1. The applicant responded stating that he did not mention on 10 October 2019 that his parents had work in August 2016 and that his father had been in hospital and his mother alone was a [Occupation 3].  

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. 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.

5. 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

1. 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 for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five refugee reasons 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.

2. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

3. In his application, the applicant stated that less than one month after his arrival in Australia in September 2015, his mother told him that property developers wanted to have the factory land where his father worked which included the surrounding area and their family house too. He stated that the developers offered a very low price and when his father said no, they bashed him up, said they would return the next day, that his father reported the matter, that the next day they returned and again bashed him and that since his parents had no job, they stayed at home, scared of those thugs. However, at hearing on 10 October 2019, the applicant stated his parents had not worked since August 2016 when his grandmother died and his father had been injured and hospitalised at that stage. He also stated that June 2016 was the first time violence had been shown towards his family, that the developers had wanted his family to relocate from their home and confirmed that the only thing they wanted from his family was the house and the land. When it was put to him at hearing that his statement suggested his father had been bashed before they came to his house in 2016, he stated in the beginning when they came they were not that physical, they threatened his father but there was not much violence however the Tribunal finds that his written statement not only suggests that the violence commenced less than one month after his arrival in Australia in September 2015, it also suggests that the violence was because the developers wanted his father’s factory and the surrounding area that included their house.

4. In addition, when it was put to the applicant at hearing that his written statement suggested his parents had no jobs since the people who wanted the property had come and that his parents were so scared that they stayed at home however his evidence at hearing was that his parents had not worked since August 2016, he stated that his father had stopped working but returned to work before he again stopped in August 2016. The Tribunal finds this inconsistent with what the applicant told the Department on 2 May 2017 which was that his father had been in hospital for [a certain amount of time] because of injury from being bashed which means that he could not have been working prior to his alleged stopping work in August 2016. It is also different to what he said post hearing which was that he did not say at hearing that his parents had work in August 2016 and that his father had been in hospital and his mother alone was a [Occupation 3]. 

5. The Tribunal finds that the applicant’s story has continued to change in relation to what the developers allegedly wanted, when the violence allegedly commenced, who suffered as a result of that violence, when his parents and in particular his father stopped working and whether his father was hospitalised for [a certain amount of time] prior to 2 May 2017 because he was bashed. Although the applicant has stated that all these things happened a long time ago, they were not his experiences and his evidence may not be accurate, the Tribunal does not consider the above discrepancies insignificant or peripheral. It also finds that these details have continued to change because the applicant is not recounting events that have actually happened but is making up his evidence as he goes along. Neither does the Tribunal consider the applicant credible.

6. The Tribunal does not accept that property developers or anyone else has contacted his family to obtain the factory land or surrounding area or his family house or that the developers or anyone else have bashed his father or anyone else in the applicant’s family or that the applicant’s family have stopped working as a result. Neither does the Tribunal accept that the applicant is the only one supporting his family, that his parents have borrowed money from loan sharks who then took away his [sibling] and their house and said that when the applicant returns, they will break his legs and use him as a beggar to make money. Neither does the Tribunal accept that the applicant is unable to return to China as a result.

7. While the Tribunal accepts that the applicant may have a girlfriend in Australia who has bought property and that the applicant has an attachment in Australia, that does not, of itself make him a refugee.

8. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

9. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is credible or that any of the events that he claims have happened in China have in fact occurred. While the Tribunal accepts that the applicant may have a girlfriend in Australia who has bought property and that the applicant has an attachment in Australia, that does not of itself, mean that the applicant will be arbitrarily deprived of his life; or the death penalty will be carried out or that he will be subject to torture, to cruel or inhuman treatment of punishment and/or degrading treatment or punishment that would amount to significant harm throughout China.

1. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

2. 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

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

Angela Cranston
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.

…

1. Protection visas – criteria provided for by this Act

…

1. 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.

…