1412948 (Refugee) [2016] AATA 3649 (23 March 2016)

Last Updated: 28 April 2016

1412948 (Refugee) [2016] AATA 3649 (23 March 2016)

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 1412948

COUNTRY OF REFERENCE: China

MEMBER: Meena Sripathy

DATE: 23 March 2016

PLACE OF DECISION: Sydney

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

Statement made on 23 March 2016 at 12:59pm

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 to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
2. The applicant, a citizen of China, arrived in Australia [in] December 2010 as the holder of a Student visa valid until [April] 2011. After this date he remained in Australia as an unlawful non-citizen until [October] 2013, when he lodged the present application. The delegate refused to grant the visa [in] June 2014.
3. The issues in this review are whether the applicant has a well-founded fear of persecution in China for one or more of the five reasons set out in the Refugees Convention; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to China, there is a real risk that he will suffer significant harm.
4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

Application

5. Information provided in the application indicates the applicant is a [age] year old man from Henan province in China. He speaks, reads and writes Mandarin. He is married and has [children], who all reside in China. He also has his parents and one [sibling] in China. He provided information about having completed [number] years of schooling up to [deleted] school level. He gave his occupation as [occupation]. He provided one residential address in [City 1], Henan Province in China from 2003 to December 2010.
6. In response to questions about his reasons for leaving China, past experiences and fears of harm the applicant provided the following information. He was born to a farmer’s family in [year]. He married his wife according to custom in 1997, and together they had [children]. Because he and his wife were too young to have their marriage registered, they did not do so and therefore the children were born outside of the family planning policies. They did not apply for household registration for their children because they were afraid of being forced to pay a huge social compensation fee. When their [child] reached school age, they had to apply for [his/her] household registration and were forced to pay RMB [amount] in total. He had to borrow money to pay the fee.
7. In 2006, the applicant went to work at a [shop] together with a friend from his village, [Mr A], to make more money to repay his debts. In 2009, he and his friend borrowed money and bought the shop and its property when the owner retired. In January 2010, [Mr B], the son of a government official in [a district in] [City 1] approached them saying he was going to open a [business].centre. He forced them to sell the [shop]’s property at a price much lower than the market price. [Mr A] and himself refused to sell and [Mr B] brought men to threaten and harass them frequently. They reported to the local police station to seek protection, but they did nothing for them. [Mr B] led people to the shop and they smashed [products] and other [properties]. In the end [Mr A] and the applicant and their employees were driven out of their [shop]. After that [Mr B] gave them some money as payment for the purchase of the [shop] and warned them if anyone dared to enter the shop they would be punished.
8. After this, from February to April 2010, [Mr A] and the applicant approached various government agencies including the PSB, procuratorate and court urging for the protection of their basic human rights. They came to know that [Mr B] ran several [business] centres in [City 1] and also in the capital city of the province. He had wide contacts with officials through his [business] centres and bribery. He had particularly good connections with the police.
9. [In] May 2010 the applicant and [Mr A] went to Beijing to appeal with the central government. They were unexpectedly arrested by plain clothes police at the train station. They were sent to a remote place far from the centre of [City 1], which they later understood to be a ‘black jail’. He was detailed there from [May] 2010 to [August] 2010. During this period he had to do [work] for more than 10 hours a day, and was tortured by the police or other detainees. [Mr A] was tortured to death by the police in July 2010.
10. The applicant’s wife did not know where he was detained until he was released. She looked for him everywhere and approached the police for help but to no avail. In the end she contacted [Mr B] and implored him to let the applicant off and paid him a lot of money. The applicant was finally released [in] August 2010. Before his release he was forced to sign a confession that he was actively involved in activities of damaging social security. He was also made to sign a statement as a witness that [Mr A] died of illness. The applicant was warned he would be severely punished if he exposed anything about the black jail.
11. The applicant could not live normally after that. The police came to his home for investigation or forced him to report to them. He was also harassed by [Mr B] and his men, who threatened him not to seek any appeals again. The applicant decided then to go overseas. He sold the [house] to pay to obtain a passport and then a visa for Australia.
12. Since leaving China the police as well as [Mr B] have not stopped harassing and threatening his wife and children. They warn his wife to keep him in silence overseas or they will send her to jail. That is why the applicant did not apply for a protection visa for a long time.

Department interview

13. The applicant was interviewed by a delegate of the Department [in] June 2014, and a detailed summary of evidence provided during the interview is included in the delegate’s decision statement, a copy of which was provided to the Tribunal with the review application. The Tribunal has also listened to an audio recording of the interview.

Tribunal hearing

14. The applicant appeared before the Tribunal on 12 October 2015 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr C]. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by his registered migration agent. A summary of relevant evidence received at the hearing follows.
15. The applicant’s family comprises his parents, wife and [children]. They all live together in his father’s home, where the applicant has lived all of his life. The children are all registered and attend local schools, boarding during the week and returning home on weekends. The applicant’s father works as a farmer and his wife helps out on the family land. The applicant also has a [sibling] who is married and lives with [the] family in another village. The applicant does not own any other property in China. His father had some land left to [him], but this was sold to fund the applicant’s travel to Australia.
16. The applicant attended school to the first year of middle school. He left school in [year] because of financial difficulties and worked with his father on the family land until 2006. In 2006 the applicant went to work in a [business] with a friend from his village, [Mr A] in [a] District about 5 kilometres from his home. In September 2009 he and his friend purchased the business when the owner retired. They paid RMB [amount] for it together. The applicant contributed RMB [amount]. This money came from his savings and also he borrowed it from several relatives, including [amount] from one uncle, [amount] from his wife’s [relatives], [amount] from [one] aunt and [amount] from [another] aunt. At the time of purchasing the business he had an ownership certificate and receipt for the payment of this money.
17. The Tribunal asked the applicant if he has these documents to evidence his ownership of the business. He said that he does not because the man who took his business took all of the documents as well.
18. In January 2010, [Mr B], who is the son of a local official by the name of [name], came to the applicant’s shop together with several other people from the urban administration team, wearing official uniforms. He showed a piece of paper which appeared to contain an official stamp and declared that he had Government approval to develop the premises into a [facility]. The applicant told the Tribunal he now believes that this document was not genuine and he did not look at it closely. [Mr B] demanded to see his ownership certificate and asked how much money he had paid for the business. At this time he had his business licence and taxation registration displayed on the premises as required by law. He went home and brought the ownership certificate and told [Mr B] that he and [Mr A] had paid RMB [amount] for the business. [Mr B] told them that he would offer them only RMB [amount] for the business. The applicant and [Mr A] did not agree to accept this offer. [Mr B] them took the ownership certificate together with the business licence and taxation registration documents and has not returned any of these documents since.
19. The Tribunal asked the applicant if this was the first time he had seen [Mr B]. He said he was well known in the area to be a rascal and a person who took advantage of his father’s position. When asked if he had ever approached the previous owner about buying his business he said he had not.
20. The Tribunal put to the applicant that given this, it seems strange that he would present his ownership certificate to [Mr B] when he asked for it. He said that when he asked to see it, he was accompanied by official people and the applicant believed he had no choice but to obey. When he took the documents the applicant said he chased after them but they got away. He called the police and made a compliant straight away. The police came and told him they will investigate but they never did anything further.
21. The following morning [Mr B] arranged for some [gangsters] to come to the shop. They demanded an order of [products] in 2 days. When the applicant protested that it was an impossible demand, the gangsters told them that if they cannot comply they should get out of the business. They pushed and beat them. The applicant stated that he had bruises all over his body. After this every day, people in vehicles came and blocked his shop and disrupted their business. This lasted about one week. Each time the applicant called the police. They said they would come and investigate but hey never took any action.
22. Around the middle of January in the afternoon, [Mr B] together with [number] people (thugs) came and threatened the applicant not to continue to call the police. The thugs smashed up the property in his shop. The applicant’s arm was injured on this day. When they left [Mr B] left an amount of RMB [amount] as payment for the business. He told the applicant to take this money and go away.
23. The applicant refused to move out of the shop despite this action. Several days later [Mr B] came again with other people. This time they drove them out of the shop and changed the locks. The applicant and [Mr A] took the money that he had left. No other paperwork was exchanged to transfer the ownership of the business. He just drove them out by force and left the money he offered.
24. After that the applicant approached various departments to make complaints about what had happened. He went to the district office. He did not make his complaint in writing because it was a well known fact in the area what [Mr B] had done to his shop. He told them at the District Office that he had complained to the police many times. They gave him the same response over and over again. They told him that [Mr B] gave him money, so he had purchased the property and there is therefore no recourse for him.
25. The Tribunal put to the applicant that it appeared from his story that [Mr B] was acting as a private citizen seeking to further his own development, rather than this being a government appropriation of land. The applicant agreed that he was acting as a private citizen but that because of his family relationship, the applicant believed his father the government official was behind it. The applicant claims that [Mr B] used his father’s power and influence to do what he did. He believes the document he showed on the first day was a fake document he obtained due to his father’s influence.
26. The applicant claimed that he also tried to go to the court and prosecutor’s office to complain but to no avail. The Tribunal asked if he has any evidence of taking these steps. He said he does not. He has no documents to show he commenced any action.
27. The Tribunal put to the applicant that given he was describing a business transaction, and numerous avenues he claims to have explored to seek redress, it would be reasonable to expect that there would be some documentation to support these claims. The Tribunal may not accept his claims as truthful in these circumstances in the absence of any documentation in support. In response the applicant said that the Chinese government is like this. He referred to news he read a few days ago reporting about a government appropriation of land in Shandong Province. The people did not want to move so the government sent in people who poured gas on the land and set it on fire. He submitted that this supports his claims because it shows that the government is capable of such evil.
28. The applicant told the Tribunal he approached all the government department he could in these two months. On one occasion, a staff member of the court told him that he should not try and report against [Mr B] because his father is influential.
29. The Tribunal asked the applicant, if this was his experience, why he tried to take the matter to Beijing. He said that he thought as they were not getting anywhere in the local area they would try to take their complaint higher, to Beijing. When asked by the Tribunal what he hoped to achieve by taking the matter to Beijing, he said that he wanted to get back what he had paid for the business. He spent all of his savings on this business and felt it was very unfair that he only offered RMB [amount] when they spent RMB [amount]. The Tribunal put to the applicant that it seemed his complaint was against a private person, albeit one with some political or official influence, whereas the official petition system, as the Tribunal understands the independent information, is for complaints against official actions. In response the applicant reiterated that he had tried to report his case to many local departments but no one would deal with it because they said [Mr B] had purchased the business from him. That is the reason they thought his father was in fact behind it. So for that reason they thought they would try and take the compliant to Beijing. He said they were taking the complaint against [Mr B]’s father to Beijing.
30. On the way to Beijing, they were intercepted by railway police, while waiting at the station for the train. The police officers asked the, for their tickets and ID. They were told to come with the officers and taken to a small room. There they were asked if they were going to Beijing to lodge a complaint. The applicant stated that he and [Mr A] had prepared a package of documents to support their complaint. When the Tribunal asked what documents were in this package, he said it included receipts for the purchase of raw materials, receipts for selling of goods. These were the documents they had to prove their ownership of the business. The officers searched their bags and saw this material. They pinned them down and kicked them, then handcuffed them, covered their eyes and took them away in a van.
31. They were taken away to a place about [number] kilometres [south] where they were kept for [number] months. They were made to [work] from morning to night. They were questioned every week about why they wanted to petition against the government. They were interrogated and beaten. The applicant states he was pressured to sign a confession that he was guilty of disrupting the social order. His friend, [Mr A] was tortured to death in that black jail. After this the applicant was so afraid, he agreed to sign the confession to being a social order disruptor. His wife, by this time was pleading with [Mr B] because they assumed he was behind this detention. She paid him RMB [amount] and the applicant was released in August 2010.
32. The Tribunal put to the applicant that it had some difficulty understanding why he would be detained in a black jail if the response to date was that he had no recourse to make a complaint because it was a private dispute. In response the applicant repeated again his claim that they had spent all their savings on the shop and he was only offering RMB [amount]. He stated that the officials were paid to take him away.
33. After his release, the applicant said he was close to a breakdown. He was very shocked by his friend’s death. He said the police continued to harass and threaten him after his release. When asked why they would do that, he said he believed it was to check if he intended to complain. They also forced him to say his friend died of illness rather than that he was tortured to death. The applicant confirmed that he had no documents about the period in which he was detained. They prepared documents and he was just made to sign them, but he has no copies.
34. The applicant confirmed that he was never charged with anything after his detention. He said he was put on a blacklist as a ‘social order disrupter’. After this he decided to leave China because he could no longer stay as he was too frightened.
35. The Tribunal asked the applicant how he obtained his passport, issued [in] 2010. He said he found an agent and the agent arranged for the processing of all the documents. The Tribunal put to the applicant independent information from DFAT which indicates that applicants for a passport are required to apply in person at the PSB in the area where their hukou is registered. If he believes he was on a blacklist and a person of interest to the authorities how would he be issued a passport. In response the applicant said the agent paid off some people to get him the passport. He said in China anything can be done if one is willing to pay money. When asked how much he paid to get his passport and arrange to come to Australia, he said it was around RMB[amount]. The Tribunal asked the applicant why and how he was able to pay RMB[amount] to leave China if his original grievance was about insufficient money he received for his business. It put to him that this does not appear to make sense that he would spend that kind of money if he is claiming to be aggrieved about losing money on his business. In response the applicant said the money for him to leave China came from the sale of his [property]. He had to leave because of his fear after his friend’s death by torture. He was afraid he would meet the same fate.
36. When asked why he believed this may happen to him he said because he was already on a blacklist. He is even more fearful after his friend in Australia’s experience when he went to China recently. In March he asked his friend to take to his parents [products]. While there in China, after visiting his parents, this friend was threatened by the police in relation to the applicant. This shows that the police are monitoring him.
37. The Tribunal asked the applicant why, after 5 years, would the police or authorities be interested in him. He believed that they are afraid that he would tell people about what happened to him, even though he has escaped from it all. His friend was tortured to death. When they were at the black jail, they were made to work in the heat of the day, and then it rained heavily and still they did not allow them to stop or even drink water. His friend caught a fever, but they refused to give him medical attention. The next day they made them go out [again]. Ultimately he may have died from [details deleted]. He died because of maltreatment in the black jail.
38. The Tribunal asked the applicant if he intended to pursue his complaint about his business if he returned to China. In response he said that he may not be able to because they would get him before that. The Tribunal put to him would it not be futile to do so given his past attempts. He reiterated, he put all his savings into the business and his friend died as a result of it. That is why he cannot let the matter go.
39. The Tribunal asked the applicant if he had any difficulties exiting China. He said he did not. It put to him that independent information indicates that major airports in China have comprehensive security monitoring capabilities, and this would suggest that if he was of interest to the authorities he would not have been able to leave. In response the applicant stated that his agent took care of all of it for him. If you have money you can get anything done in China. He said a lot of wanted people are able to get passports and depart China.
40. When asked if he is in contact with his family in China, the applicant said he rarely contacts them because every time he calls they cry as the police harass and threaten them and the children are looked at differently in school.
41. The applicant had nothing further to add about why he cannot return to China.

Evidence from [Mr C]

42. The witness gave evidence that he came to Australia in 2007 because he liked it here. He obtained his permanent residency on the basis of a partner visa application in or around 2011. He met the applicant around Christmas time last year, in the queue for the cash register while shopping with his family. They started talking and came to realise they were from the same town in China. After that they occasionally saw each other. The witness saw the applicant around 2-3 times before March 2015 when he travelled back to China. The applicant asked him to take [product] to his parents. The witness visited the applicant’s parents, wife and children and gave them the [product]. After his visit, he returned to his home and was visited by local police. They questioned him about his visit to the applicant’s family. They told him that the applicant was a criminal and they were looking for him. They told him that the applicant was an enemy of the state and had said things against the government which were not true. They warned the witness not to contact the applicant’s family again or he will be in big trouble. The witness was very afraid after this as he had never before had contact with the police like this. He believes the police must be monitoring the applicant’s family and that is how they discovered that he had visited them.

Independent Information

Forcible land appropriation

43. The Tribunal has considered independent sources of information about issues relating to land expropriation and compensation in China and difficulties in pursuing complaints about such matters.
44. A 2012 Amnesty International report cites Chinese academic studies that indicate between 1991 and 2003, more than half a million families in Beijing were forced from their homes.^[1] The same studies indicate that between 1990 and 2010, local authorities expropriated over 16.5 million acres of land.^[2] A 2011 study by Landesa Rural Development Institute^[3] found that land had been expropriated from 43.1 per cent of all rural villages since the late 1990s.^[4] The same study indicated that since 2001 the number of cases of land expropriation has been steadily rising.
45. A number of sources indicate that land expropriation and other incidents involving citizens being forced from their homes remain an issue in China. The US Department of State reports that, during 2013, disputes over land expropriation in China ‘continued to trigger large-scale clashes between police and protesters’.^[5] According to Freedom House, ‘an estimated four million disputes resulting from land grabs and property demolition occur each year’, and ‘Residents who resist eviction, seek legal redress, or organize protests often face violence at the hands of local police or hired thugs’.^[6]

Xinfang (Petitions)

46. Citizens wishing to appeal government or court decisions on land repossession commonly present their grievances by petitioning the government through the xinfang system, which translates to Letters and Visits.^[7] The xinfang system enables citizens to lodge complaints in writing or in person to specialised complaints offices located in the many levels of the Chinese government.^[8]
47. Petitions are supposed to be reviewed and investigated, and a letter or written notice is meant to be produced for every case.^[9] In reality, only a small minority (as low as 0.2 per cent according to a 2004 study)^[10] of written complaints are acted on leading many citizens to visit complaint offices in person. If a citizen is dissatisfied with the response to their petition, they are free to continue petitions at the next level from township, county, provincial, and on to national levels.^[11] However, there are risks associated with continuing petitions to the national level – including arrest, detention and harassment.
48. The mistreatment of petitioners by the Chinese government is well-documented and commonplace, including reports of local and central government authorities monitoring, intercepting, arresting, beating and harassing petitioners who seek to protest against land repossession.^[12] According to the USCECC Annual Report 2012, ‘China’s Constitution and the 2005 People’s Republic of China National Regulations on Letters and Visits provide that Chinese citizens have the right to petition without retribution’.^[13] However, the US Department of State 2013 Country Reports on Human Rights Practices – China states that ‘Although banned by regulations, retaliation against petitioners [by government officials] reportedly continued’ in 2013.^[14] A key problem with the xinfang system is that the central government partially assesses local government performance on the number of petitions that are resolved at the local level.^[15] Freedom House reports that since local officials receive career and salary sanctions when petitioners leave their jurisdictions and complain to higher authorities, ‘they have significant incentives to suppress citizen petitioning’ at higher levels.^[16]
49. A number of sources report that local government authorities use forcible psychiatric detentions and ‘black gaols’ – extra-legal detention facilities established by local and provincial officials – to detain, imprison, and punish petitioners who bring their appeals to Beijing.^[17]
50. The 2015 DFAT Country Report for China provides the following information regarding protesters and petitioners:

3.20 It is estimated there are between 150,000 and 180,000 popular protests every year; 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. According to Duihua, detentions took place in 25 per cent of mass protests documented in 2013.

3.21 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. DFAT is aware of reports describing aggressive, and sometimes violent, action by private security contractors hired by property developers to manage protesters.

3.22 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.^[18]

Exit and Entry Procedures

51. DFAT’s Report on China states,

5.16 Chinese law provides for foreign travel, emigration, and repatriation. A number of agencies within the Ministry of Public Security hold responsibility for monitoring entry and exit procedures at Chinese airports, including the Public Security Bureau, the Entry and Exit Authority, and the Frontiers Inspection Bureau. China’s major airports have a centralised system with name matching alert capabilities. Security monitoring capabilities at major airports are comprehensive.

52. With regard to procedures to obtain passports, the DFAT Report states,

5.22 According to the Passport Law of the People’s Republic of China (2006), ordinary passport applicants are required to apply in person to the Entry-Exit Control Department of the Ministry of Public Security or their designated bureaus where hukou is registered. Applicants must provide their resident identification card, resident household registration book, recent photos and other materials related to the reasons for their application. Approved applications are generally issued within 15 to 30 days. If a passport application is refused, reasons for the refusal must be provided in writing and the applicant is to be informed of their right to apply for administrative reconsideration or to file an administrative lawsuit. Costs of passport processing vary according to location but are generally considered affordable.

....

5.24 Authorities can refuse to issue passports for people who are believed “will undermine national security or cause major losses to the interests of the State”. ....

FINDINGS AND REASONS

53. A summary of the relevant law is set out at Attachment A.

Nationality

54. On the basis of his evidence to the Tribunal and his Chinese passport, the Tribunal accepts the applicant is a national of China and considers China is the country of nationality for the purposes of assessing his refugee claims and the receiving country for the purpose of assessing his claims against the complementary protection criteria.

Consideration of applicant’s claims

55. When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of credibility of the applicant. When doing so the Tribunal is mindful of the difficulties faced by refugee applicants, including issues relating to use of interpreters, nervousness and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims.
56. The Tribunal is mindful that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true. (See MIMA v Rajalingam (1993) FCR 220) However the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. (see Selvadurai v MIEA& Anor [1994] FCA 1105; (1994) 34 ALD 347 at 348).
57. The Tribunal has considered all of the evidence before it, including his written claims and oral evidence to the delegate and Tribunal.
58. The applicant has advanced the following claims in this application: the applicant and his friend’s [business] was unfairly and forcibly acquired by a developer who was the son of a government official. He was harassed and assaulted by gangsters hired by the developer in the process of being pressured to sell. He attempted to complain about the matter to police and seek protection, but they took no action. The applicant tried to make complaints to various government departments and to the courts. He tried to take the complaint higher, to Beijing, but was intercepted on the way by railway police and he and his friend were taken away to a ‘black jail’ and held for [number] months, and were interrogated and beaten there. The applicant’s friend died as a result of the tortuous treatment in the jail. The applicant was released in August 2010 after his wife paid the developer a significant sum of money. The police often came to his home and forced him to report. The developer and his gangsters continued to harass him to make sure he would not continue any appeals. Because of this the applicant decided to leave China because he was too afraid to stay. The applicant claims to fear harm if he returns to China because these people do not want him to restart his complaints. He believes he is on a blacklist as a social order disrupter. He cannot let this matter go because he put all his savings in top the business and his friend died. The applicant claims his fears are even greater since his friend from Australia was questioned about him by police when he returned to China recently, indicating that the police continue to be interested and monitoring him.

Claims regarding forced acquisition of his business

59. The applicant claims to have been the co-owner of a [business] from 2006 which was forcibly acquired from him by [Mr B], a property developer who is the son of a government official. The Tribunal has doubts about the truthfulness and credibility of the applicant’s claims about the ownership of a business and its forcible acquisition from him. No supporting documentary evidence is before the Tribunal to support that he owned this business in the first place. He told the Tribunal he had an ownership certificate, business licence and taxation registration documents relating to the business but that he gave all of these to [Mr B] when he asked for them in January 2010. The Tribunal has concerns about the plausibility and credibility of his account of the acquisition of his business by [Mr B]. He told the Tribunal [Mr B] was well known in the area to be a rascal and a person who took advantage of his father’s position, and yet he claims he handed all these documents to him when he asked for it, and before he had offered him any sum of money for the business. The Tribunal has considered his explanation that he believed he had no choice but to obey his demands because [Mr B] was accompanied by official people when he visited, and that he chased after them when he took away the documents and complained to the police, but the Tribunal finds this explanation also difficult to believe. It notes he has provided no other evidence of his complaint to the police, nor has he provided any other documentation to support his claimed ownership of the business. Given the applicant’s claim that he had operated his business since 2006, it would expect that he would have some other documentation available to corroborate his claimed ownership. It observes that the information about his past employment in his student visa application also does not corroborate his claims. As referred to in the delegate’s statement of reasons, provided to the Tribunal by the applicant with his review application, he claimed in his student visa application that he worked at [a] Company as [occupation] for the previous 2 years and 6 months. While the Tribunal notes the applicant told the delegate at the interview that the information in his student visa application was not true, if it were to accept this, his admission of providing false information in his student visa application also does not reflect favourably on his credibility in the present matter.
60. As a consequence of its concerns about the credibility of the applicant’s claimed ownership of the [business], it also has concerns about the claimed forcible acquisition of the business by [Mr B]. Again the applicant has provided no documentary evidence in support of the sale of his business. It notes his evidence that [Mr B] brought thugs to intimidate, threaten and beat him and his business partner, and that they eventually forcibly removed them from the shop after leaving a sum of RMB 100,000 as payment. While the applicant referred to his attempts to involve the police, he has no evidence of any complaints lodged, or statements provided.
61. Even if the Tribunal were to give the applicant the benefit of its considerable doubts as to the credibility of his claimed ownership and subsequent forced sale of the [business], on the basis that it is possible that he owned a business and this business was acquired from him by [Mr B] for a price that he considered unfair; the Tribunal does not accept his consequential claims relating to actions he has taken to protest and complain about this matter.

Claims of complaint actions and detention in a black jail

62. The applicant claimed that he approached various departments to make complaints about what had happened with [Mr B]. His oral evidence about the steps he had taken was vague, general and lacking in convincing detail. He referred to having taken the matter to Court. However there is no documentary evidence to support this claim. The applicant in his oral evidence confirmed that he has no documents. His only explanation for this was that this is how the Chinese government works.
63. On the evidence before it the Tribunal does not accept that the applicant took any steps to complain about the actions of [Mr B]. It does not accept that he tried to take the complaint to Beijing. Having regard to independent information referred to above about the Xinfang, or petitions, system of making complaints against official actions, the Tribunal does not accept the applicant’s grievance against [Mr B] was of this nature. On his own evidence, he said he was told there was no recourse for him to make a government complaint because he had accepted money for the purchase of a property. On his own evidence, the Tribunal finds [Mr B] was acting as a private individual when he acquired the applicant’s business. Other than the applicant’s bald assertion, there is no evidence before the Tribunal to support his claim that [Mr B]’s father or any government official was involved in the transaction or that the applicant had any basis to make an official complaint about this matter, and the Tribunal does not accept that the applicant made any such complaint to any department, office or court.
64. As a consequence of these findings, the Tribunal also rejects all of the applicant’s remaining claims. It does not accept that he tried to take a complaint against [Mr B]’s father to Beijing. It does not accept that he and [Mr A] were intercepted by railway police officers or anyone at the train station and taken to a black jail and held there for [number] months as claimed. As put to the applicant at the hearing, the Tribunal finds it implausible that the applicant and [Mr A] would be taken and held at a black jail for [number] months in relation to a private dispute that could not be the subject of an official complaint. It does not accept that [Mr A] was tortured to death at this place as claimed. It does not accept that his wife paid money to [Mr B] to arrange for the applicant’s release. The Tribunal also does not accept that the police harassed him at any time.
65. The Tribunal observes that the applicant obtained his passport [in] 2010. Information provided in DFAT’s Country Report on China, referred to above, indicates that passport applicants must apply in person at the Ministry of Public Security in the place of registration of their hukou. The fact that the applicant was successful in obtaining his passport and exiting the country without incident suggests he is not of adverse interest to anyone in China. There is no other evidence to support the applicant’s claim that he is on any blacklist in China or that there is any interest in him for any reason.
66. The Tribunal has considered the applicant’s claim that his friend in Australia, [Mr C], who visited his family in China was visited by police and was told that they were looking for the applicant. In light of the adverse credibility findings above relating to the applicant’s claims regarding his past experiences in China, the Tribunal does not accept this claim, despite the ostensibly corroborating evidence of the incident provided by [Mr C]. Having regard to [Mr C]’s evidence of the circumstances in which they met, being in a queue in a shop, and the extent of their acquaintance, being on 2 or 3 occasions, the Tribunal does not accept as credible or plausible that [Mr C] would travel to visit the applicant’s parents, wife and children, to deliver [products] as a gift from the applicant. It does not accept that the police subsequently visited him and warned him that the applicant was a criminal and they were looking for him. This lacks credibility and is inconsistent with the fact that the applicant was able to obtain his passport and exit the country without incident.

Fear of future harm

67. The applicant claims to fear harm in China from police and the authorities because of his attempts to complain about the forced acquisition of his business for an unfair price and his past experiences in a black jail and the death there of his friend. Having rejected his claims relating to his complaint actions and his detention in a black jail or any such place, as well as his claim relating to his friend’s death, the Tribunal is not satisfied that there is a real chance he will suffer serious harm in the reasonably foreseeable future from police, authorities or anybody else, for any reason.
68. Having given the applicant the benefit of the doubt about whether he owned a [business] in the past which was forcibly acquired from him for an unfair price, the Tribunal has also considered whether he would face harm in future on the basis of taking any action about the sale of his business upon his return. As it has rejected his claims that he took any complaint or legal action at that time against [Mr B], and in light of the passage of time that has passed since then, the Tribunal does not accept that the applicant would take any further action about his business upon his return, and for this reason the Tribunal is not satisfied that there is a real chance he will suffer serious harm in the reasonably foreseeable future for this reason.
69. 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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
70. 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). For the same reasons given above, given the rejection of the applicant’s claims relating to actions taken to make complaints and his detention and mistreatment in a black jail, the Tribunal finds there are no substantial grounds for believing there is a real risk he will suffer significant harm for any reason. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
71. 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

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

Meena Sripathy
Member

RELEVANT LAW

73. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

Refugee criterion

74. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
75. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

76. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
77. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
78. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
79. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
80. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
81. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
82. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
83. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

Complementary protection criterion

84. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
85. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
86. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

Section 499 Ministerial Direction

87. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take 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 any country information assessment 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.

---

^[1] Amnesty International 2012, Standing Their Ground, ASA 17/001/2012, October, p.5 < http://www.amnestyusa.org/sites/default/files/standing_their_ground_asa_17_001_2012_web__email.pdf
> Accessed 5 August 2015 <CIS24185>
^[2] Amnesty International 2012, Standing Their Ground, ASA 17/001/2012, October, p.5 < http://www.amnestyusa.org/sites/default/files/standing_their_ground_asa_17_001_2012_web__email.pdf
> Accessed 5 August 2015 <CIS24185>
^[3] Landesa Rural Development Institute is a US-based non-government organisation founded in 1966. It aims to secure land rights for the world’s poorest families.
^[4] Landesa Rural Development Institute 2012, Insecure Land Rights: the Single Greatest Challenge Facing China’s Sustainable Development and Continued Stability, 26 April, Section 3 <http://www.landesa.org/wp-content/uploads/Landesa_China_Survey_Report_2011.pdf> Accessed 5 August 2015 <CIS961F9401917>
^[5] US Department of State 2014, 2013 Country Reports on Human Rights Practices – China, 27 February, Section 2b <http://www.state.gov/j/drl/rls/hrrpt/2013/eap/220186.htm> Accessed 5 August 2015 <CIS27374>
^[6] Freedom House, Freedom in the World 2014 - China, 23 January 2014, available at: http://www.refworld.org/docid/52e778563.html [accessed 5 August 2015] <CX321620>
^[7] Michelson, E 2008, ‘Justice from Above or Justice from Below? Popular Strategies for Resolving Grievances in Rural China’, The China Quarterly, vol.193, March, University of Indiana, p.8 <http://www.indiana.edu/~emsoc/Publications/Michelson_Justice(endnotes).pdf> Accessed 3 October 2014 <CIS956B8881407>
^[8] Göbel, C & Ong, LH 2012, ‘Social Unrest in China’, Europe China Research and Academic Network, October <http://www.euecran.eu/Long%20Papers/ECRAN%20Social%20Unrest%20in%20China_%20Christian%20Gobel%20and%20Lynette%20H.%20Ong.pdf> Accessed 3 December 2012 <CIS24588>
^[9] Human Rights Watch 2005, ‘We Could Disappear At Any Time’: Retaliation and Abuses Against Chinese Petitioners, vol.17, no.11(C), December, p.18 <http://www.hrw.org/reports/2005/china1205/china1205web.pdf> Accessed 16 December 2005 <CIS14691>
^[10] Minzner, C 2009, China’s Citizen Complaint System: Prospects for Accountability, Statement prepared for the Congressional-Executive Commission on China, 4 December <http://www.cecc.gov/sites/chinacommission.house.gov/files/documents/roundtables/2009/CECC%20Roundtable%20Testimony%20-%20Carl%20Minzner%20-%2012.4.09.pdf> Accessed 3 October 2014 <CIS9BE2467658>
^[11] Human Rights Watch 2005, ‘We Could Disappear At Any Time’: Retaliation and Abuses Against Chinese Petitioners, vol.17, no.11(C), December, pp.3-4 <http://www.hrw.org/reports/2005/china1205/china1205web.pdf> Accessed 16 December 2005 <CIS14691>
^[12] US Department of State 2014, 2013 Country Reports on Human Rights Practices – China, 27 February, Executive Summary and Sections 1c, 1d and 2b <http://www.state.gov/j/drl/rls/hrrpt/2013/eap/220186.htm> Accessed 7 March 2014 <CIS27374>; Human Rights Watch 2005, ‘We Could Disappear At Any Time’: Retaliation and Abuses Against Chinese Petitioners, vol.17, no.11(C), December, p.43 <http://www.hrw.org/reports/2005/china1205/china1205web.pdf> Accessed 16 December 2005 <CIS14691>
^[13] US Congressional-Executive Commission on China 2012, Annual Report 2012, 10 October, p.143 <http://www.gpo.gov/fdsys/pkg/CHRG-112shrg76190/pdf/CHRG-112shrg76190.pdf> Accessed 24 October 2012 <CIS24282>
^[14] US Department of State 2014, 2013 Country Reports on Human Rights Practices – China, 27 February, Section 2b <http://www.state.gov/j/drl/rls/hrrpt/2013/eap/220186.htm> Accessed 7 March 2014 <CIS27374>
^[15] US Department of State 2012, 2011 Country Reports on Human Rights Practices – China, 24 May, Section 2b <http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?dynamic_load_id=186268#wrapper> Accessed 16 September 2014 <CIS30044>; Jia, C 2011, ‘Power of petition sows seeds of hope’, China Daily, 7 April <http://www.chinadaily.com.cn/2011-04/07/content_12282300.htm> Accessed 7 October 2014 <CXCB3E63420407>
^[16] Minzner, C 2011, Countries at the Crossroads 2011 – China, 10 November, Freedom House <http://www.unhcr.org/refworld/docid/4ecba65032.html> Accessed 28 November 2011 <CX277317>
^[17] US Department of State 2014, 2013 Country Reports on Human Rights Practices – China, 27 February, Section 1c <http://www.state.gov/j/drl/rls/hrrpt/2013/eap/220186.htm> Accessed 7 March 2014 <CIS27374>; Human Rights Watch 2009, An Alleyway in Hell: China’s Abusive Black Gaols, 12 November, p.7 12 November <http://www.hrw.org/en/reports/2009/11/12/alleyway-hell-0> Accessed 16 November 2009 <CIS18021>; Minzner, C 2011, Countries at the Crossroads 2011 – China, 10 November, Freedom House <http://www.unhcr.org/refworld/docid/4ecba65032.html> Accessed 28 November 2011 <CX277317>
^[18] DFAT Country Report relating to the People’s Republic of China 3 March 2015