1409195 (Refugee) - [2016] AATA 3236

1409195 (Refugee) [2016] AATA 3236 (22 January 2016)
.
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1409195
COUNTRY OF REFERENCE:                  China
MEMBER:Christine Cody
DATE:22 January 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 22 January 2016 at 3:08pm

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
BACKGROUND[1]
[1] The background in paragraphs 1-4 is sourced from the application form as well as the applicant’s statement.

The applicant is a national of People’s Republic of China (“China”) who seeks to be granted a Protection visa under s.65 of the Migration Act 1958 (the Act). After being informed that the Tribunal had insufficient evidence before it to make a favourable decision, he was invited to attend a hearing on 21 January 2016 before the Tribunal to give evidence and present arguments. He is represented by a registered migration agent in relation to the review. He declined to attend the hearing, without providing any reasons. The following background is relevant.
He first arrived in Australia [in] October 2005 as a visitor, using a false passport in the name of [Alias A]. He remained in the community unlawfully until [November] 2005, when he applied to the Department of Immigration for his first protection visa, seeking recognition as a refugee ([file number])[2]. He claimed he feared persecution as a result of his involvement and participation in Yiguan Dao, which he said has been branded as counter-revolutionary evil cult since the Communist Party took over China in 1949.
[2] DF37, application form.
His application was refused by the delegate [in] December 2005 and the applicant applied for review with the Refugee Review Tribunal (“the first Tribunal”), which was differently constituted. The first Tribunal affirmed the delegate’s decision on 11 April 2006. He applied to the Federal Magistrate’s Court [in] June 2006 but this application was not successful. He appealed to the Full Federal Court in March 2007. [In] March 2007, the Full Federal Court remitted the case to the Refugee Review Tribunal (“the second Tribunal”), differently constituted, for reconsideration. After two hearings before the second Tribunal, the second Tribunal also decided not to grant the applicant a protection visa. This decision was handed down on 16 August 2007. The applicant did not lodge any further appeals.
The applicant became unlawfully present in Australia in mid-September 2007. He again remained in the community unlawfully, from mid-September 2007 until he was picked up by a Departmental Compliance Officer in July 2013 and detained.
Section 48A imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1409195 (Refugee)

Details

AGLC: 1409195 (Refugee) [2016] AATA 3236
Case: [2016] AATA 3236
Decision Date: 22 January 2016

CaseChat Overview and Summary

The applicant, a citizen of China, applied for a Protection visa under the Migration Act 1958 (Cth). The Tribunal was tasked with determining whether the applicant qualified for a Protection visa under section 36(2)(aa) of the Act, which pertains to complementary protection. The decision under review was the delegate's refusal to grant the applicant a Protection visa, a decision the Tribunal upheld. The key legal issue was whether the applicant satisfied the complementary protection criterion in s.36(2)(aa) of the Act. The Tribunal found that the applicant did not meet the criteria for complementary protection.

The Tribunal's reasoning involved several considerations. First, the Tribunal examined the applicant's identity and country of citizenship, noting that while the applicant claimed to be a different Chinese citizen, he did not provide sufficient evidence to substantiate this claim. The Tribunal accepted, for the purposes of these proceedings, that the applicant was indeed a Chinese citizen. Second, the Tribunal assessed the credibility of the applicant's claims, finding that they were not sufficiently substantiated by evidence. The Tribunal concluded that the applicant's claims did not meet the threshold for complementary protection as defined by the Act.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Protection visa. The Tribunal found that the applicant did not satisfy the complementary protection criterion in s.36(2)(aa) of the Act. The Tribunal's decision was based on the applicant's failure to provide credible evidence to support his claims and his inability to meet the statutory requirements for complementary protection.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Accordingly, the applicant does not satisfy the criterion in s.36(2) for a protection visa.DECISION The Tribunal affirms the decision not to grant the applicant a Protection visa.Christine CodyMember 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.Refugee criterion 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). 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. 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. There are four key elements to the Convention definition. First, an applicant must be outside his or her country. 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. 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.

Ratio Decidendi

Legal Principle Established

The Tribunal has referred to the evidence and information before it when relevant, below.CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS AND REASONSThe Effect of SZGIZ and its relevance to this review Further to paragraph 5 above, the Tribunal’s understanding of the reasoning in SZGIZ is that it does not have power to consider the Refugee Convention criterion in s.36(2)(a), and thus should proceed on the basis that it can only consider the applicant’s claims under the Complementary Protection provisions in s.36(2)(aa) of the Act. The Tribunal notes the decision of the Federal Circuit Court in SZVCH v MIBP [2015] FCCA 2950 which indicates that in a case such as this case, where a valid application has been made to the Department, and the Department has considered claims under both the Refugee Convention in s.36(2)(a) and the Complementary Protection provisions in s.36(2)(aa) of the Act, the Tribunal should also consider claims under both. After the decision in SZVCH, there had been another decision of the Federal Circuit Court in SZQTJ v MIBP [2015] FCCA 3226. This case found that the correct approach is to consider only claims in relation to the complementary protection criterion in s.36(2)(aa) (where the applicant had previously been refused a visa on the basis of the refugee criterion in s.36(2)(a)). The court found that, the approach in SZVCH is inconsistent with the clear words of s.48A and with SZGIZ, which makes clear that a second application can only be made relying on a different criterion. The decision in SZVCH cannot be reconciled with the binding authority of the Full Court and is wrong. The Federal Court in AMA15 v MIBP [2015] FCA 1424 upheld the Tribunal’s understanding that only claims in relation to the complementary protection criterion in s.36(2)(aa) should be considered, where the applicant had previously been refused a visa on the basis of the refugee criterion in s.36(2)(a). The Tribunal notes that the applicant’s written claims refer to terminology relevant to both the refugee and complementary protection criteria. No submission was received in light of the decision of AMA15 v MIBP [2015] FCA 1424. In light of the Federal Court authority, it is the Tribunal’s view that the applicant’s claims only in relation to s.36(2)(aa) should be considered. However, the Tribunal understands that SZVCH is now listed for hearing at the Federal Court in May 2016. In that case the argument is being pursued that the Tribunal should consider claims under all criteria once a second protection visa application has been lodged. Given the current circumstances, the Tribunal has made alternative findings below on the basis of the refugee criterion in s.36(2)(a). The relevant law, in addition to that discussed in the body of this decision, is set out in Annexure A (that Annexure also contains the law relating to the Refugee Convention criterion in s.36(2)(a)).Receiving country The Tribunal notes the applicant’s claims that he entered Australia using the passport of one Chinese citizen, but he claims to be a different Chinese citizen. The applicant did not attend before the Tribunal to answer questions about his identity or his country of citizenship or any other factors relevant to determining his receiving country (or his identity). The Tribunal notes that the Department was prepared to accept that the applicant was a citizen of China. For the purposes only of these proceedings, the Tribunal is prepared to accept that the applicant is a citizen of China, and that China is the receiving country for the assessment of his complementary protection claims.CredibilityConcerns about the applicant’s claims