1410183 (Refugee)

Case [2015] AATA 3675

1410183 (Refugee) [2015] AATA 3675 (10 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1410183

COUNTRY OF REFERENCE:                  China

MEMBER:Belinda Mericourt

DATE:10 November 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 10 November 2015 at 2:09pm

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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

  2. The applicants, who claim to be citizens of China, applied for the visas [in] November 2013 and the delegate refused to grant the visas [in] May 2014.

  3. The applicants appeared before the Tribunal on 29 October 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

    BACKGROUND

  4. The primary applicant, hereafter referred to as the applicant husband, was born in Fuzhou city, Fujian province in China in [date]. He entered Australia on a false passport [in] January 1998.  He lodged his first claim from protection using his true identity [in] March 1998.  His application was refused by the Department [in] May 1998 and affirmed by the Refugee Review Tribunal (RRT) (differently constituted) on 20 January 1999.  He remained in Australia as an unlawful non-citizen until [April] 2006 when he was granted a bridging visa. From April 2006 to 2008 the applicant made unsuccessful challenges in the Federal Magistrates Court and Full Federal Court and unsuccessful requests for Ministerial Intervention.  His last bridging visa ceased [in] September 2008 and he remained in Australia as an unlawful non-citizen. He lodged the current application for protection under the provisions for complementary protection [in] November 2013.

  5. The applicant’s spouse, hereafter referred to as the applicant wife, was born in Guangdong, China in [date]. She entered Australia [in] May 2002 on a transit visa.  She lodged an application for protection [two days later] which was refused by the Department [in] July 2002. This decision was affirmed by the RRT (differently constituted) on 10 July 2003. Her bridging visa ceased [in] September 2003 and she remained in Australia as an unlawful non-citizen.  She is included in the applicant husband’s application as a member of his family unit.

  6. There are two child applicants born in Australia of the relationship between the applicant husband and wife - two [children] born [in] 2010 and [in] 2013.  The applicant children have not previously made applications for protection.  They are included in the applicant husband’s application as members of his family unit.

  7. Section 48A imposes a bar on a non-citizen making a further application for a…

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AGLC
1410183 (Refugee) [2015] AATA 3675
Case
[2015] AATA 3675
Decision Date

CaseChat Overview and Summary

The applicants, a Chinese couple with two Australian-born children, were before the Tribunal to determine whether they qualified for protection visas under the complementary protection provisions of the Migration Act. The husband had previously entered Australia illegally in 1998 and lodged his first protection visa application in March 1998, which was rejected, as was a subsequent review by the RRT. The wife entered Australia in 2002 and lodged a protection visa application that was also rejected by the RRT. Both applicants had remained in Australia unlawfully until lodging their current application in November 2013. The Tribunal had to decide whether the applicants had a real risk of significant harm if returned to China, and if the children had a well-founded fear of persecution under the Refugee Convention.

The legal issues centred on the interpretation and application of the complementary protection provisions in section 36(2)(aa) of the Migration Act, and the Refugee Convention criteria in section 36(2)(a). The Tribunal noted that it could not consider the Refugee Convention criteria because the applicants had previously made unsuccessful protection visa applications. The Tribunal had to determine if there were substantial grounds for believing that the applicants would suffer significant harm if returned to China, and whether the children had a well-founded fear of persecution. The Tribunal also had to consider the applicants' credibility and the admissibility and weight of the evidence presented.

The Tribunal found that the applicants had not satisfied the statutory requirements for protection visas. The Tribunal found that the husband and wife's claims were not credible, and that there were no substantial grounds for believing that they would suffer significant harm if returned to China. The Tribunal also found that the children did not have a well-founded fear of persecution. The Tribunal noted that the applicants had not provided sufficient evidence to establish their claims, and that the decision-maker was not required to accept uncritically all allegations made by the applicants. The Tribunal concluded that the applicants did not meet the criteria for protection visas.

The Tribunal did not grant the applicants protection visas. The Tribunal found that the applicants had not satisfied the statutory requirements for protection visas, and that there were no substantial grounds for believing that they would suffer significant harm if returned to China. The Tribunal also found that the children did not have a well-founded fear of persecution. The Tribunal concluded that the applicants did not meet the criteria for protection visas and dismissed their application.

Orders

Orders of the court

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Background

Background to the litigation

The applicants appeared before the Tribunal on 29 October 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. BACKGROUND The primary applicant, hereafter referred to as the applicant husband, was born in Fuzhou city, Fujian province in China in [date]. He entered Australia on a false passport [in] January 1998. He lodged his first claim from protection using his true identity [in] March 1998. His application was refused by the Department [in] May 1998 and affirmed by the Refugee Review Tribunal (RRT) (differently constituted) on 20 January 1999. He remained in Australia as an unlawful non-citizen until [April] 2006 when he was granted a bridging visa. From April 2006 to 2008 the applicant made unsuccessful challenges in the Federal Magistrates Court and Full Federal Court and unsuccessful requests for Ministerial Intervention. His last bridging visa ceased [in] September 2008 and he remained in Australia as an unlawful non-citizen. He lodged the current application for protection under the provisions for complementary protection [in] November 2013. The applicant’s spouse, hereafter referred to as the applicant wife, was born in Guangdong, China in [date]. She entered Australia [in] May 2002 on a transit visa. She lodged an application for protection [two days later] which was refused by the Department [in] July 2002. This decision was affirmed by the RRT (differently constituted) on 10 July 2003. Her bridging visa ceased [in] September 2003 and she remained in Australia as an unlawful non-citizen. She is included in the applicant husband’s application as a member of his family unit. There are two child applicants born in Australia of the relationship between the applicant husband and wife - two [children] born [in] 2010 and [in] 2013. The applicant children have not previously made applications for protection. They are included in the applicant husband’s application as members of his family unit. 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 noncitizen has made an application for a protection visa which has been refused. The Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 has held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa. On the evidence before it, the Tribunal finds that the applicant’s first protection visa application was refused [in] October 2009 because the applicant did not satisfy the Refugee Convention criteria. Applying the reasoning in SZGIZ v MIAC (2013) 212 FCR 235, the Tribunal finds it does not have power to consider the Refugee Convention criterion in s.36(2)(a) and has proceeded on the basis that it can only consider the first named applicant’s claims under the complementary protection provisions in s.36(2)(aa) of the Migration Act.

Evidence

Evidence Before The Court

The relevant law is discussed in Appendix 1 below.CONSIDERATION OF CLAIMS AND EVIDENCE Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of the applicant’s claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.Requirement that the decision-maker be ‘satisfied’ 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 an 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. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.) The issues in this case whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant husband and members of his family unit being removed from Australia to China, there is a real risk that they will suffer significant harm and whether the applicant children have a well-founded fear of persecution for one of the five Convention reasons. (see Appendix 1 – relevant law). The Tribunal has before it the Department’s file relating to the applicant, which includes a certified copy of the applicant’s PRC passport issued [in] 2014 in Sydney, his application for a protection visa, his written statement of claims, the audio recording of his interview by the delegate [in] May 2014 and a copy of the delegate’s decision record. The Tribunal also has before it the applicant husband’s first protection application file which includes his application for a protection visa, his written statement of claims, a copy of the delegate’s decision record dated [in] May 1998, a copy of the Tribunal’s decision record dated 20 January 1999, a copy of the applicant wife’s first protection application file which includes her application for a protection visa, her written statement of claims, a copy of the delegate’s decision record dated [in] July 2002, and a copy of the Tribunal’s decision record dated 20 July 2003. The Tribunal has also referred to relevant country information as cited in this decision.Claims in the previous protection visa applicationsApplicant husband

Decision

Reasons for decision

Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of the applicant’s claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.Requirement that the decision-maker be ‘satisfied’ 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 an 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. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.) The issues in this case whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant husband and members of his family unit being removed from Australia to China, there is a real risk that they will suffer significant harm and whether the applicant children have a well-founded fear of persecution for one of the five Convention reasons. (see Appendix 1 – relevant law). The Tribunal has before it the Department’s file relating to the applicant, which includes a certified copy of the applicant’s PRC passport issued [in] 2014 in Sydney, his application for a protection visa, his written statement of claims, the audio recording of his interview by the delegate [in] May 2014 and a copy of the delegate’s decision record. The Tribunal also has before it the applicant husband’s first protection application file which includes his application for a protection visa, his written statement of claims, a copy of the delegate’s decision record dated [in] May 1998, a copy of the Tribunal’s decision record dated 20 January 1999, a copy of the applicant wife’s first protection application file which includes her application for a protection visa, her written statement of claims, a copy of the delegate’s decision record dated [in] July 2002, and a copy of the Tribunal’s decision record dated 20 July 2003. The Tribunal has also referred to relevant country information as cited in this decision.Claims in the previous protection visa applicationsApplicant husband

Ratio Decidendi

Legal Principle Established

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