AQU16 v Minister for Immigration

[2017] FCCA 1106

FEDERAL CIRCUIT COURT OF AUSTRALIA

AQU16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1106

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision of a delegate of the first respondent not to grant applicant protection visa – whether Tribunal considered applicant’s evidence – whether Tribunal relied on assumptions rather than evidence – no jurisdictional error.

Applicant: AQU16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 682 of 2016

Judgment of: Judge Manousaridis

Hearing date: 18 May 2017

Date of Last Submission: 18 May 2017

Delivered at: Sydney

Delivered on: 26 May 2017

REPRESENTATION

Applicant in person assisted by interpreter.

Solicitors for the First  Respondent: Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 682 of 2016

AQU16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a citizen of the Peoples Republic of China (China), seeks judicial review of a decision of the second respondent (Tribunal) affirming the decision of the delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).

Claims for Protection

1. The applicant claimed he suffered, and, if he returns to China, will suffer persecution by the Chinese government because he protested against the government resuming land owned by his family and offering inadequate compensation.

2. In a written statement that accompanied his application for a Protection visa, the applicant claimed as follows :[1]

   [1] CB 13-27

   a)In 2013 a “building constructions” policy was carried out in the applicant’s village under which villagers’ houses were to be demolished and turned into farmland, the Chinese government would pay compensation of RMB 160,000 per mu[2] to the village council, and the village council would use the money to build new apartments into which the villagers would move. The villagers were to be allocated 30 square meters per person in the new apartments. In addition, the villagers affected would be required to give up 3 fen[3] of farmland.

   [2] The word “mu” is the Pinyin expression for a unit of measurement of the area of land. It is the equivalent of 614.4 m² - see <  accessed on 25 May 2017

   [3] A “fen” is 1/10 of a mu - see <  accessed on 25 May 2017

   b)The applicant was told by the secretary of the party branch that his family’s farmland was small, and, for that reason, he was required to pay RMB 30,000 or RMB 60,000 more in order to get a resettlement apartment.

   c)80% of the villagers did not agree with the policy. The secretary of the party branch threatened each villager from door to door and forced them to sign and pay for the resettlement apartment. The secretary’s members of staff, who were stationed in the applicant’s village, threatened the applicant and other villagers that, if they did not sign and pay, there would “be a lot of ways to punish us”.

   d)Because “the relocation compensation gap is relatively large”, the applicant led the villagers against the town government and, for this reason, the applicant’s family was listed as “the nail household”. That made the applicant’s family’s life very difficult.  The applicant appealed to the complaints office of the county government.

   e)The secretary brought administrative enforcement staff to the applicant’s house while he was at work. Using pickaxes and shovels, the staff dug a ditch around the applicant’s home causing considerable damage. The enforcement staff also assaulted the applicant’s parents with rubber rollers, resulting in the applicant’s mother’s “hamstrings” being “broken”, and arrested the applicant’s father. The applicant’s house became decrepit, and there was no water or electricity. The applicant called the police many times for help.

   f)The applicant complained to the office of the county government and showed the office “the use permit” of his homestead and certificate of title. The office told the applicant the homestead is collectively owned and his family only has the right to use it.

   g)The secretary of the applicant’s town threatened to kill the applicant and his family after he discovered the applicant had appealed to the complaints office, and the secretary arranged for gangsters to attack the applicant. The applicant did not submit despite the threats. He decided to go the “complaint office in the city”.

   h)While waiting at the bus station, the applicant was caught and sent to the office of the town mayor. The mayor accused the applicant of spreading “rumours in the name of appeal”, of slandering him and other officers of the village and town government, and of trying to ruin the town government’s reputation. The deputy mayor forced the applicant to write a pledge that he would never appeal again, and, when the applicant refused, he was slapped, and was threatened that he would not be able to go home until he had done so.

   i)The applicant was locked up overnight in the office and the next morning the deputy town mayor came to see him. The applicant was again asked to write a pledge, but he refused. The applicant said he would report the deputy mayor’s wrongdoings to the town police, but he laughed at the applicant’s threat.

   j)Later that afternoon, the applicant’s father came and told him he could go home. After leaving the office, the applicant’s father told him he had paid RMB 3,000 to the mayor of the town for the applicant’s release, and he made the applicant promise he would never appeal again.

   k)That night the applicant decided he could not passively wait for his house to be further damaged. The applicant walked and took a coach to the city. After passing three stops, a group of people boarded the coach and pulled the applicant off without any explanation. The applicant was taken to the town police station and locked up. The applicant was held in custody for one day and beaten by several policemen. The applicant’s family borrowed money from friends and relatives, and paid the police to release the applicant.

   l)The applicant’s family supported the applicant’s leaving China. They mortgaged “our farm land” to secure a loan. In November 2013 the applicant used a passport issued in his own name to apply for a visa. That application was rejected because the Chinese government found out about his plans to leave China. On 17 January 2014 the applicant used a passport in a different name to obtain a visa for Australia.

   m)The applicant recently called home, but no one answered. The applicant called his neighbours who said the applicant’s house is too dangerous to live in, that the town government visited the applicant’s wife every day to search for the applicant, and that the town government had told the applicant’s wife the applicant will be arrested and gaoled for two or three years.

Tribunal decision

1. The Tribunal accepted the applicant’s property was subject to a relocation and resettlement arrangement made by local Chinese authorities; the applicant and his family were unhappy with the proposed level of compensation offered to them, and that they would have to pay an additional amount because they only had a small plot of land to exchange; the government does not need the consent of the persons affected to acquire property compulsorily; and it “may be” the applicant complained to the county government in Fuqing City early in 2013 as a result of which the applicant was harassed and intimidated by officials in the local government office. [4]

   [4] CB115, [87], [91]

2. The Tribunal, however, did not accept the applicant’s claim that he continued to complain to the county government, or that in October 2013 he was taken from a bus to Fuqing County, arrested by police, taken to the police station, and beaten and detained for two days before the applicant’s father paid a large amount for his release.[5] The Tribunal considered the applicant’s oral evidence about his claimed mistreatment to have been vague and generalised, and found that the applicant was unable to give a more detailed account because he did not experience the claimed mistreatment.[6] Further, the Tribunal found the applicant’s oral evidence differed from his written statement. In his written statement, the applicant claimed the family house was damaged but still standing with his wife living there in the latter half of 2013. Before the Tribunal, however, the applicant claimed the house had already been demolished.[7] The Tribunal found that although the applicant may have been seeking a better outcome from the relocation, it appears the applicant decided to end his petitioning and leave China. The Tribunal considered that the forced resumption of the applicant’s family home and the added expense of paying a further sum for the resettlement put the applicant in a difficult financial position which might have influenced his decision to leave China and seek more remunerative work elsewhere.[8]

   [5] CB115-116, [92]

   [6] CB116, [92]

   [7] CB116, [93]

   [8] CB116, [94]

3. The Tribunal accepted the applicant left China on a false passport, and it accepted the applicant’s wife was in possession of the applicant’s legitimate passport that was issued in Fujian Province in 2008.[9] The Tribunal did not accept, however, the applicant’s claim that he was issued with a new passport in 2011 and that it was subsequently seized by local Chinese authorities. Nor did it accept the applicant’s claim that he applied for a passport in 2011 after he had lost the passport that had been issued in 2008. The Tribunal considered the applicant contrived this part of his evidence to explain why he travelled on a false passport in 2014 but later came into possession of his own 2008 passport.[10]

   [9] CB116, [95]

   [10] CB116, [96]

4. The Tribunal did not accept the applicant’s claim that his wife and son are living an itinerant lifestyle. The Tribunal noted that despite the applicant’s claim his wife and son have moved from place to place every two or three days to avoid harassment for 18 months prior to the hearing before the Tribunal, the applicant also stated he could call his wife and ask her if she could find a copy of his 2011 passport at home and send him a copy. On the basis of the applicant’s evidence that his parents-in-law are farmers and that his wife lived with them after he left China, the Tribunal considered it likely that the applicant’s wife and son are living with them or other relatives. [11]

   [11] CB116-117, [98]

5. The Tribunal did not accept the applicant will face serious harm if he returns to China because he was regarded as a lead protester against the resumption and redevelopment of village land and will be targeted for that reason.[12] While the Tribunal accepted the applicant was unhappy with the proposed compensation, and may have lodged a petition, the Tribunal found there was no credible evidence, and the Tribunal did not accept that the applicant was a lead protestor.

   [12] CB117, [99]

6. The Tribunal was also not satisfied that if the applicant returns to China he will continue to petition the government about the resumption, or that the applicant will supress such conduct because he fears persecution. The Tribunal noted that, on his evidence, the applicant decided to stop petitioning and left China for Australia,[13] and found the applicant has given up petitioning the government because the applicant perceived he would not obtain a more favourable outcome.[14]

   [13] CB117, [100]

   [14] CB117, [100]

7. The Tribunal then referred to, and accepted, country information that indicated land seizures have been a significant problem in China for many years, that there is a system of petitioning and appeals, and that, in the past, petitioners have sometimes been mistreated by government officials for protesting against land seizures.[15] On the other hand, the Tribunal also referred to country information that indicates petitioning is not unlawful, that petitioning and appealing are an established part of the Chinese legal and administrative system, that the Chinese government has taken steps to abolish the ranking of provincial authorities according to their ability to limit local petitioners and maintain social stability, and that Chinese citizens who wish to complain about land and property expropriation engage in official and unofficial methods of protest. [16]

   [15] CB117, [101]

   [16] CB117, [102], [103]

8. Finally, the Tribunal considered whether the resumption of the applicant’s land and demolition of the family home had resulted in significant economic hardship that threatens the applicant’s capacity to subsist.[17] The Tribunal noted the applicant gave evidence that he was not a farmer, but had previously worked in a logistics company as a driver, and that the logistics company gave the applicant a trip to South East Asia as a bonus. The Tribunal also noted that his parents did casual work in the village, that his wife’s parents are farmers in the neighbouring village, and that the applicant stated the property on which the family home was located was a small plot of land where his family kept ducks and pigs, and grew vegetables in the courtyard. The Tribunal accepted that the applicant’s family was disadvantaged by the relocation arrangement, and that their usual means of supplementing their income was taken away by the resumption; but the Tribunal did not accept the resumption threatened the applicant’s and his family’s capacity to subsist. [18]

   [17] CB118, [105]

   [18] CB118, [106]

9. The Tribunal concluded, therefore, that there is not a real chance the applicant will suffer serious harm, and the applicant does not hold a well-founded fear of persecution based on any Convention ground. The Tribunal also concluded there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s being removed from Australia to China, there is a real risk the applicant will suffer significant harm.

Grounds of application

1. The application for review contains two grounds.

   1.Natural justice was denied by the Administrative Appeals Tribunal.

   2.Procedural fairness was denied by the Administrative Appeals Tribunal.

2. In addition to these grounds, which are not particularised, the applicant stated matters in an affidavit that I will treat as grounds of application. These are:

   7.At the respective hearings the Member did not appear to consider the majority of my verbal evidence specifically relating to the fear and persecution that I had received in China from Chinese Officials.

   8.The Member did not take into consideration my individual circumstances.

   9.The Member continually referred to Articles of Chinese Law.

   10.The Member used these Articles of Chinese Law to tell me how the Chinese officials had acted.

   11.The Member did not consider my evidence and experience as to how the Chinese officials had acted.

   12.I believe I was denied procedural fairness and natural justice during the Administrative Appeals Tribunal hearing.

3. The applicant, who is not legally represented, but who appeared before me with the assistance of an interpreter, also made submissions. The applicant submitted:

   a)the Tribunal told the applicant the Chinese government does not know the applicant had come to Australia;

   b)the applicant told the Tribunal that he was already a wanted man in China;

   c)the applicant no longer has a home and his wife and children have nowhere to go; and

   d)the Tribunal did not consider the applicant’s case, but instead relied on assumptions.

4. These grounds can be grouped into two categories. One is that the Tribunal did not consider the applicant’s claims, but instead acted on assumptions. The second is the Tribunal relied, or relied to an impermissible degree, on country information about Chinese law.

5. I do not agree the Tribunal did not consider the applicant’s claims. In its reasons for decision the Tribunal set out the claims the applicant made in his application for a Protection visa, and before the delegate. The Tribunal also set out the evidence the applicant gave and the Tribunal’s questions in response to which the applicant gave his evidence. The Tribunal’s reasons for decision show that the Tribunal explored with the applicant the claims he made, and brought to the applicant’s attention aspects of his evidence the Tribunal considered raised difficulties for the applicant. The Tribunal then considered the applicant’s claims by identifying those aspects of the applicant’s claims it accepted, and those aspects of the claims the Tribunal did not accept, giving reasons for each aspect of the applicant’s claim that the Tribunal did not accept.

6. I do not accept that the Tribunal did not consider the applicant’s evidence, or that it did not take into account the applicant’s individual circumstances, or that the Tribunal denied the applicant procedural fairness. I also do not accept that the Tribunal did not consider the applicant’s evidence about how the Chinese officials had acted. The Tribunal accepted the applicant may have experienced harassment and intimidation, but it did not accept the applicant’s other claims for mistreatment. I am satisfied the Tribunal considered the applicant’s claims, and that it was reasonably open to the Tribunal not to accept the applicant’s claims for the reasons it gave.

7. As to the second category of the grounds on which the applicant relies, it was reasonably open to the Tribunal to consider country information about the law of China concerning the private holding of property and its compulsory resumption by the government. That was relevant to the Tribunal’s assessment of the applicant’s claims that he feared harm because he petitioned against the resumption of his family’s farm. It was reasonably open to the Tribunal to consider the law of China to determine whether, for example, it was lawful for the applicant to petition against the compulsory resumption of his family’s farm because that would be a matter on which a decision-maker could reasonably rely for assessing the applicant’s claims that he faced risk because he petitioned the government. The Tribunal, however, did not only consider Chinese law; and it did not simply assume that the law was applied according to its terms. The Tribunal considered country information contained in a report from the Department of Foreign Affairs and Trade about the extent to which, and the matters about which, persons protest in China, and what occurs to protesters.[19]

   [19] CB117, [104]

8. I have been unable to identify in the Tribunal’s reasons for decision anything that supports or suggests the Tribunal informed the applicant that the Chinese government does not know the applicant has come to Australia. I do not propose, therefore, to say anything about this ground because there is no evidence the Tribunal made such statement to the applicant or, if it did, there is no evidence of the context in which the Tribunal may have made such statement.

Conclusion and disposition

1. The applicant has not succeeded on any of his grounds, and there is nothing on the material before me that suggests the Tribunal did not consider the applicant’s claims according to law. I propose, therefore, to order that the application be dismissed.

2. At the hearing I explained to the applicant that the order for costs that is usually made in litigation is that the unsuccessful party to pay the costs of the successful party. The applicant made no submission to the effect that I should not make the usual order as to costs. I see no reason why I should not order the applicant pay the Minister’s costs, and I propose to so order.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 26 May 2017