1809249 (Refugee)

[2021] AATA 4516

1809249 (Refugee) [2021] AATA 4516 (8 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1809249

COUNTRY OF REFERENCE:                   China

MEMBER:Lilly Mojsin

DATE:8 October 2021

PLACE OF DECISION:  Sydney

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

Statement made on 8 October 2021 at 8.30 am

CATCHWORDS
REFUGEE – protection visa – China – imputed political opinion – compensation for expropriated land not paid and claim of corruption by local officials – assault, abuse and threats – no appearance at adjourned hearing or further information provided – country information – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 36(2)(a), (aa), 65, 425, 426A, 441A

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 Home Affairs on 9 March 2018 to refuse to grant the applicant a protection visa [PV] 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 22 August 2017. The delegate refused to grant the visa on the basis that the delegate was not satisfied there was a real chance or a real risk the applicant would suffer serious or significant harm on his return to China within a reasonably foreseeable future.

3. The applicant appealed that decision to this Tribunal, attaching a copy of the Department decision to the review application.

4. The applicant was invited, pursuant to s425 of the Act, to appear before the Tribunal on 29 September 2021 at 2.00 pm. The hearing invitation also stated that if the applicant was not able to attend the adjourned hearing, the applicant should advise the Tribunal as soon as possible. The hearing invitation also advised the applicant that if the applicant does not attend the scheduled adjourned hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it, or may dismiss the application for review without any further consideration of the application or the information before the Tribunal.

5. The applicant responded to the Tribunal’s invitation for the hearing, appearing by telephone. The applicant sought an adjournment, advising the Tribunal that he did not know about the hearing and sought time to contact his migration/legal adviser. The Tribunal granted an adjournment and advised the applicant that the adjourned hearing was to be held on 7 October 2021, at a time to be notified by the Tribunal.

6. On 30 September 2021 the applicant was invited to appear, before the Tribunal, at the adjourned hearing on 7 October 2021 at 9.00 am. The invitation stated that the hearing would be held by Teams video conference and the hearing date would only be changed for a good reason.

7. The applicant did not respond to the Tribunal’s invitation for the hearing. The applicant did not attend the hearing. The Tribunal did not receive any communication from the applicant about the hearing or to explain his non-attendance.

8. Section 426A of the Migration Act provides that if an applicant has been invited under s425 to attend a hearing and does not appear on the day on which, or at the time and place at which, she or he is scheduled to appear, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. Alternatively, the Tribunal may dismiss the application without any further consideration of the application of information before the Tribunal.

9. I am satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

10. I find the hearing invitation that was sent to the applicant's email address for service was given by the applicant to the Tribunal. I am satisfied the hearing invitation was given to the relevant person by one of the methods in s441A and that the prescribed period of notice of the relevant day, time and place of the scheduled hearing has been given. In these circumstances, pursuant to s.426A of the Act, I have decided to make a decision on the review without taking any further action to enable the applicant to appear before it.

    CRITERIA FOR A PROTECTION VISA

11. See Annexure A

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. Information provided by the delegate indicated that the applicant arrived in Australia [in] June 2017 as the holder of a Visitor Visa and applied for a PV on 22 August 2017.

13. In his PV application, the applicant claimed that:

    • His father is a village committee member in [Town] his hometown.
    • The State government constructed freeways and from 2015 has expropriated some of the land in his village.
    • The State government paid land compensation of 30 million yuan to all the villagers but the amount paid was not in accordance with that issued by the State.
    • He investigated the accounts of the village head and the village committee secretary [Mr A] with his father. In February 2016 they finalised their investigation and obtained evidence of corruption in the land compensation of the State government. When [Mr A] learnt of this he contacted him and asked him to attend village committee office. When he arrived he was assaulted by four to five men and hospitalised for 10 days.
    • His wife told him that 200 fruit trees from their farm were poisoned.
    • When he returned home from hospital he immediately went to [Town] government to report [Mr A] but he experienced further abuse and threats from the secretary, [Mr B] at the [Town] as they are cousins.
    • [Mr B] went to his company and warned him not take any action and was asked to quit his job but he argued that he had done nothing wrong and he just wanted to fight for his rights. After this he experienced difficulties with his employers and was excluded by his colleagues.
    • His wife took his children back to their home and suggested that he leave China as does not have any future in his company.
    • He decided to leave China for reasons of his persecution to seek protection in Australia

14. The applicant made no further claims to the Tribunal.

    REASONS AND FINDINGS

15. The applicant's identity has been accepted by the Department in his visa application. On the basis of his Chinese passport I accept that the applicant is a national of the PRC and is not a national or citizen of any other country. I accept that he does not have a right to enter and reside in any country other than China. Therefore, I find that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that China is the applicant's “receiving country” for the purposes of s.36(2)(aa).

16. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.

17. The applicant was put on notice that the department did not accept his claims. The applicant did not attend the Tribunal hearing and I was unable to explore the applicant’s claims with him.

18. According to DFAT[1] it is estimated there are between 150,000 and 180,000 popular protests every year in China, the vast majority of which concern land disputes; housing problems; industrial, environmental, and labour matters; government corruption; taxation; and other economic and social grievances. Others are provoked by accidents or related to personal petitions, administrative litigation, and other legal processes. 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), an estimated four million disputes resulting from expropriated land and property demolitions occur every year.

    [1] DFAT Country Information Report China 2019

19. DFAT confirms that 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. Although extra-legal “black gaols” (informal, ad hoc, detention facilities set up by local authorities) have long been used to contain the rising number of petitioners, the Chinese government denied their existence during its most recent Universal Periodic Review. The government has announced a number of reform measures designed to improve transparency and responsiveness of the petition system. In November 2013, authorities announced plans to abolish a long-held system of ranking provincial authorities according to their ability to limit local petitioners and maintain social stability.

20. I accept that in China land is expropriated by state governments and compensation is paid and there are disputes regarding the amount of compensation paid.

21. I note DFAT also states that 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.

22. Without further information from the applicant I am unable to explore details of the ownership or entitlement to land claimed to have been expropriated or the amount of compensation or whether the applicant or his father submitted complaints through the websites or local petitioning offices. Therefore, without further information from the applicant, I do not accept that the applicant’s father was a village committee member in [Town] in 2015 or that the state expropriated some of the land in his village or paid land compensation of 30 million yuan to all the villagers but the amount paid was not in accordance with that issued by the State.

23. Had the applicant attended the hearing I would have been able to explore these claims with him.  Without further information, I do not accept that the applicant investigated the accounts of the village head and the village committee secretary with his father or that he obtained evidence of corruption in the land compensation. I therefore do not accept that he was assaulted by four to five men and hospitalised for 10 days for investigating the accounts or that 200 fruit trees from their farm were poisoned. I also, without further information, do not accept that [Mr A] or [Mr B] harmed or sought to harm the applicant or his father.  I do not accept that [Mr B] went to his company and warned him not take any action and he was asked to quit his job or that he argued that he had done nothing wrong and he just wanted to fight for his rights. I also do not, without further information, accept that he experienced difficulties with his employers and was excluded by his colleagues, or that his wife took his children back to their home and suggested that he leave China as he does not have any future in his company or that he decided to leave China for reasons of his persecution to seek protection in Australia.

24. Without further information from the applicant, I do not accept that the applicant was harassed or harmed when he lived in China for any reason whosoever.

25. I am satisfied that the applicant departed China as the holder of a visitor visa in order to enter Australia, as a visitor.

26. I have considered the claims of the applicant individually and cumulatively.  For the above reasons, I find that the applicant faced no serious harm in the past for a refugee reason.

27. I am required to consider whether the applicant will suffer serious or significant harm on his return to China, within a reasonably foreseeable future. 

28. As the applicant did not attend a Tribunal hearing and as I have rejected all his claims, I am not satisfied the applicant faces a real chance of serious harm upon return to China for a refugee reason in the reasonably foreseeable future. I am satisfied that the applicant does not have a profile that would cause him to be of any interest to the authorities.

29. I am not satisfied the applicant has a well-founded fear of persecution for reasons of his race, religion, nationality, membership of a particular social group or political opinion now, or in the reasonably foreseeable future if he returns to China.

30. As stated above, the applicant does not have a profile that would cause him to be of any interest to the authorities and I have rejected the applicant’s claim that he suffered persecution or any harm in China. I do not accept that the applicant therefore will suffer significant harm on return to China.

31. I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that the applicant will suffer significant harm ie that there is a real risk that he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment.

32. Accordingly, I find that the applicant does not satisfy the requirements of s.36(2)(aa) of the Act.  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).

33. 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).

34. 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.

35. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

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

    Lilly Mojsin
    Member

    ANNEXURE A

37. 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.

38. 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.

39. 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).

40. 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.

41. 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

42. 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.

    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.

    …