1728507 (Refugee)

[2018] AATA 932

1728507 (Refugee) [2018] AATA 932 (8 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1728507

COUNTRY OF REFERENCE:                  China

MEMBER:Roslyn Smidt

DATE:8 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 08 March 2018 at 3:57pm

CATCHWORDS
Refugee – Protection visa – China – Corruption – Forced land resumption – Physical violence – Employment – Detention – Planning authorities – Police surveillance

LEGISLATION
Migration Act 1958, ss 5(1), 5J-5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] February 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 is a citizen of China, applied for the visa [in] July 2016. [In] February 2017 the delegate refused to grant the visa on the basis that the applicant had failed to attend an interview scheduled to discuss her claims and on the evidence submitted prior to the interview did not provide a sufficient basis for her to be satisfied that the applicant’s claims were true or that she faced a real chance of experiencing serious or significant harm if she returned to China.

3. The applicant applied for review of the delegate’s decision on 28 March 2017. On 2 May 2017 the Tribunal wrote to the applicant to advise her that it appeared that the final day for lodged of an application for review was 14 March 2017. The applicant did not respond to the Tribunal’s letter and on 19 June 2017 a differently constituted Tribunal found that her application was invalid and the Tribunal therefore did not have jurisdiction in the matter. That decision was set aside by the Federal Circuit Court. The matter is now before the Tribunal pursuant to an order of the Court.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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.  

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 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

9. 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 of Immigration – 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.

   CLAIMS AND EVIDENCE

10. The applicant is [an age] year old woman from Heilongjiang Province in China. She obtained passport [in] 2014. She was granted [temporary] visa [in] June 2016 and arrived in Australia as part of a tour group [later in] June 2016. She applied for protection [in] June 2016.

11. In her application for protection the applicant said that she had completed her education in [year] after which she worked as an [occupation] at a [business], a [different occupation] at [different] business and a [professional] at a [further] business. She said that her parents and [siblings] lived in [a named city] and that she divorced her husband of [number] years in [year].

12. In a written submission provided to the Department of Immigration [in] July 2016 the applicant said that in 2012 she was given notice that land in her village including a house and land belonging to her and her family had been acquired by the government to build a college. Her family should have received at least 2 apartments and some money in compensation for this, but they were offered only one small apartment. They disagreed and did not sign the relevant agreement. One day in 2013 officials came to the village, forced everyone from their homes and demolished them. She and other argued with the officials, but they were hit with batons and knocked to the ground.  She and other petitioned the government to seek proper compensation without success. Several days later the police came and arrested them and warned them not to take the matter further. After that she was afraid. The police monitored her every day and she could not find a job, so she decided to come to Australia.

13. The applicant attended a hearing on 8 March 2016.  I began by explaining the criteria for obtaining a protection visa.

14. I asked who she feared would harm her if she returned to China. She said that she feared the government, the urban planning authorities and the underground society or hooligans.

15. I asked who in the government would harm her and what they would do to her. She said that the police might make life difficult for her if she had to attend a police station for any reason. I asked her for more information on the harm she feared. She asked if she was required to answer the question. I told her that she did not have to answer, but noted that if she was unable to provide me with sufficient information on the harm she feared I might not be satisfied that she faced serious or significant harm on return. She said that there as a lot of corruption and no rule of law in China and officials might discriminate against her.

16. I asked her what harm she feared from the urban planning authorities. She said that if she approached them because she wanted to run a small business they would beat her for no reason and make trouble for her.

17. I asked her if she had been charged with any offence by the police or urban planning or anyone else. She said that she had not.

18. I asked her why she feared hooligans. She said that they might beat her for no reason.

19. I noted that she had obtained a passport and appeared to have had no trouble leaving China. She agreed that this was correct.

20. I observed that in order to obtain a visa for Australia she needed to show that she had employment and it appeared unlikely that she would have obtained a visa if she was a [different occupation] who worked casually in factories. After some discussion it was established that an agent had provided false documents regarding her work history in support of this application. The applicant said that she had no choice but to provide false evidence as this was the only way she could obtain a visa. I observed that while it was understandable that people in immediate danger would lie in order to escape, this did not appear to be her situation and the fact that she had been prepared to lie to obtain a [temporary] visa raised questions about her credibility. She repeated that she had to lie to get a visa.

21. The applicant’s earlier claims regarding compensation for land were discussed.  Her evidence was somewhat confused but in essence she claimed that she and her husband owned farming land and house which were acquired by the government between two or three years before she left China and denied proper compensation. She went to local officials to appeal against this but without success. Shortly after she approached the local municipal office. The police came and took her and her husband to the police station where she was slapped and told that it was pointless to complain because the case involved the central government and warned not to take her complaint to Beijing because that would embarrass the local officials. After that she did not have any further problems with the police, but she felt that she was under surveillance and she had difficulty finding permanent employment, so she came to Australia to work. Her husband remains in China where he lives in rented premises and works casually. He has not faced any further problems with the police or officials, but he is afraid.

22. When asked the applicant confirmed that she had remained in China for over two years after her land was acquired by local officials and nothing further had happened to her. She also confirmed that she came to Australia to work.

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. I found the applicant’s evidence regarding the problems she faced in 2012 or 2013 as a result of the acquisition of land belonging to her without proper compensation vague, confused and unconvincing. In these circumstances and in light of her willingness to provide false evidence to obtain a [temporary] visa for Australia and her admission that she came to Australia primarily to find work, I am extremely sceptical of this claim. Furthermore, even if I accept land which she owned or partly owned was acquired by the government in 2012 or 2014 to build a college, in my view this does not amount to serious or significant harm. I note that she was offered compensation by the authorities. Furthermore, even if she was threatened and ill-treated when she complained about the level of compensation, this occurred on one occasion over two years before she left China.

24. There is no credible evidence before me which suggests that that the applicant faced continuing problems with the local police or planning authorities or anyone else prior to leaving China because of the acquisition of her land or because she complained about the level of compensation offered and nothing in the evidence that suggests that she would be at risk of harm from anyone in relation to the acquisition of the land or her complaints about  inadequate compensation if she returned to China now.

25. In reaching this conclusion I have noted the applicant’s claim that she had difficulty obtaining permanent work after she lost her farming land. Even if this is true, which I strongly doubt, there is no suggestion that she was denied the right to earn a livelihood or that her right to earn a livelihood was seriously restricted because her land was acquired by the government. According to her own evidence she continued to find work, albeit on a casual rather than a permanent basis.

26. The applicant’s claims at the hearing regarding her fear of future harm from the police, local authorities and local hooligans was no more than vague speculation. There is no credible evidence before me which suggests that she would face serious or significant harm from the police, local authorities, local hooligans or anyone else for any reason if she returned to China now or within the reasonably foreseeable future.

    CONCLUSIONS

27. After considering the applicant’s claims both individually and cumulatively, I am not satisfied that she faces a real chance of suffering serious harm for any reason if she returns to China within the reasonably foreseeable future. I am therefore not satisfied that she has a well-founded fear of persecution for any of the reasons in the Convention.

28. The applicant’s claims for complementary protection are the same as those put forward in relation to their claims against the Convention. After considering these claims individually and cumulatively I am not satisfied that she faces a real risk of experiencing significant harm in China.  Therefore, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to the China, there is a real risk that she will suffer significant harm.

29. 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).

30. 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 a person in respect of whom Australia has protection obligations under s.36(2)(aa).

31. 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

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

    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.

    …

    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 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.

    (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.

    ..

    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.

    …