1412624 (Refugee)

[2015] AATA 3148

1412624 (Refugee) [2015] AATA 3148 (8 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1412624

COUNTRY OF REFERENCE:                  China

MEMBER:Josephine Kelly

DATE:8 July 2015

PLACE OF DECISION:  Sydney

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

Statement made on 08 July 2015 at 2:08pm

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

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 claims to be a citizen of China.  He applied for the visa [in] October 2013 and the delegate refused to grant the visa [in] June 2014. The applicant provided a copy of the delegate’s decision record to the Tribunal.

3. The applicant appeared before the Tribunal on 7 July 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant was represented in relation to the review by his registered migration agent who did not attend the Tribunal hearing.

   SUMMARY OF THE LAW

5. 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.

6. 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).

7. 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.

8. 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’).

9. 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

   The issues in this case

10. The issues in this case are:

    ·Whether the Tribunal is limited to considering the applicant’s claims against the complementary protection criterion only;

    ·Whether the Tribunal accepts that the applicant’s protection claims are credible.

    For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.  

    Background

11. The following findings are made on the information provided in support of the application, including the decision record of the delegate which the applicant provided to the Tribunal and are uncontentious.

12. The applicant arrived in Australia [in] February 2008.  He held a Chinese [passport] issued [in] 2007 and which expires in [2017], and an Australian tourist visa. He left China legally. He has not departed Australia. He presented the same passport at the Tribunal hearing.  The Tribunal finds that he is a citizen and national of China. 

13. He previously applied for protection [in] February 2008 which was refused by the Department [in] April 2008 and by this Tribunal on 31 July 2008.  The applicant did not attend the departmental interview but he did appear at the Tribunal hearing.

14. He lodged a second application for protection [in] October 2013. A migration agent assisted him with his application form. 

15. The applicant attended the departmental interview [in] June 2014. A recording of the interview is before the Tribunal.

    The applicant’s claims for protection

16. The applicant made the following claims in his visa application.

17. He was born on [date] in Jiangsu Province, China and is a citizen of that country by birth. He speaks, reads, and writes Mandarin. His religion is Falun Gong.

18. He had [number] years of education in China ending in [year] at a middle school. He claimed that before coming to see Australia he was self-employed.

19. He married in China in 1997. His parents, wife and[child], who was born in 1997, are in China.

20. In response to the question about where he had lived for six months or more in the last 10 years he provided one address to February 2008 [in] Jiangsu Province.

21. He claimed he left China to dodge creditors, gamblers, the police and government officials. He has been bashed up by creditors whom he had not paid.  Other gamblers chased him because they believed he cheated on them.

22. He fears being harmed by the creditors and other gamblers if he returns to China. He had provided a casino to the gamblers which he, with “the perpetrator”, had set up. Police and government officials will also harm him.

23. His ex-friend, who has connections with the police and Public Security Bureau (PSB) knows about his gambling hobby and invited him to set up a small casino, which is prohibited in China. His ex-friend told him that his police mates and government officials would turn a blind eye to the business as long as they shared the profits with them. He and his ex-friend borrowed a large amount of money from private moneylenders and assured the gamblers that the police would never come to the casino and it was safe to gamble there.

24. Months later, the police raided the premises, confiscating all the money and arresting the gamblers. Soon after, the police released all of them without laying charges. The applicant later found out that his friend had colluded with the police and pocketed the money taken in the raid. In order to shrink his liability to the gamblers, he accused the applicant of colluding with the police and as a result the gamblers lost money.

25. Thereafter the police have been looking for him as he has been operating an illegal casino. The creditors are looking for him for their money. The gamblers are looking for him for compensation and pay back.

    The departmental interview

26. During the departmental interview held [in] June 2014 the applicant elaborated upon his claims as follows:

    ·In approximately November/December 2007 he was detained for 24 hours by police for illegally running a casino but was released without charge.

    ·Police are currently looking for the applicant and approached his wife at their family home inquiring about him in November/December 2007 following his detention.

    ·The applicant hid at his parents’ and siblings’ houses in [Jiangsu] for two to three months before departing for Australia.

    ·The applicant owes 40,000 Chinese Yuan to loan sharks in China and fears they are still looking for him.

    ·He was hit and slapped in the face by loan sharks in January 2008 and was threatened that he would be hit harder if he did not pay back the money he owed.

    ·The last time loan sharks spoke to his wife in order to find him was in January/February 2008 and she told them he had gone overseas.

    Documents

27. No submissions or supporting documents were provided except a Star Casino member card.

    Consideration and findings

28. 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 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. Applying the reasoning in SZGIZ v MIAC (2013) 212 FCR 235, the Tribunal finds that 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 applicant’s claims under the Complementary Protection provisions in s.36(2)(aa) of the Act.

29. As set out in the delegate’s decision which was provided to the to the Tribunal, the applicant had claimed in his 2008 protection application that his sole reason for seeking protection was that he was a Fallon Gong practitioner. He was found not to be a witness of truth and not to be a genuine Fallon Gong practitioner. He unsuccessfully sought review of that decision in this Tribunal.

30. The Tribunal checked with the applicant during the hearing whether he was claiming protection on the ground of Fallon Gong in relation to this application.  He said that he did not make that claim.  The Tribunal does not consider that claim further.

31. The Tribunal explained to the applicant at the beginning of the hearing that he had been invited to a hearing because it was not satisfied on the material before it that he satisfied the complementary protection criterion and it had questions it wished to ask him.  It also said that after it had finished asking the questions it had, he could say anything else he wished to in support of his application.

32. When the Tribunal asked the applicant why he had claimed protection, he replied that he wanted to remain in Australia. The Tribunal noticed that he had a document in front of him and asked him to put it away. 

33. The Tribunal asked why he wished to remain in Australia. The applicant said that he has been here for many years and cannot return to China.  He thinks his child can come here to study.  He has no other reason.  He just wants his family to live a better life. 

34. The Tribunal asked why he left China in 2008.  The applicant said because nine out of ten people are gambling. He does gambling as well.  He borrowed money from the loan shark to gamble.  He gambles in Australia and has a card for Star Casino. In China gambling is illegal.

35. Because of the loan shark he cannot continue his social life among gamblers because he lost his credibility.  In Australia there is no money lending among gamblers.  When the Tribunal commented that it did not know that it accepted that statement, the applicant said that he does not borrow to gamble in Australia.  He uses his own money.

36. The Tribunal asked if there were any other reasons he left China. The applicant repeated that he wanted to live a better life.  He could not make much money when he was in China.

37. When the Tribunal asked the applicant what he thinks will happen if he returns to China, he said that he is afraid the loan sharks and gamblers will not leave him alone.

38. He told his wife to repay the loan shark.  He thinks she has.  She used the money he sent back from Australia.  When he came to Australia he owed 100,000 to 200,000 RMB.  200,000 RMB was ten years of savings in China. When the Tribunal asked how he could possibly get himself into so much debt, the applicant said with gambling there is no other choice.  In Australia it would take about a year to save 200,000 RMB, after deducting living expenses.

39. The Tribunal asked the applicant why he had the document with him that it had asked him to turn over. He said that he had just set out his experience on paper.  The Tribunal asked if he wanted to go through it.  He read it out.  It was essentially the same as his claims set out above but put them in the context of the change in Australian protection policy in March 2012 to include the complementary protection criterion because of Australia’s international obligations.  He claimed that he was beaten up by the loans sharks, traced by the gamblers and searched for by the police.

40. The Tribunal pointed out to the applicant that he had not mentioned establishing the casino when the Tribunal has asked him questions about why he was seeking protection and left China in 2008, the applicant said that  he had said that when interviewed by the department. 

41. The Tribunal explained that it had asked him to put the document away because it wanted him to answer its questions from his own recollection and that he did not provide the details about establishing the casino, the police raid and so on indicates it was not true. The applicant said that he thought the Tribunal would give him a time to state his claims.  He just thought we had been chatting.

42. The Tribunal asked the applicant why had not made the claims he had made in this application in his first protection application. The applicant said that gambling is his ugly past.  At the beginning his representative said that he does not need to go into much detail, as long as he has one claim.

43. After the Tribunal established that he had not attended a departmental interview in relation to his first protection application but had attended the Tribunal hearing, it commented that not mentioning his claims about the casino, the loan sharks, gamblers and the police in his first protection application and to the Tribunal member in 2008 indicated that he did not fear harm from those people.  The applicant said it was not strange that he had not mentioned them.  Gambling is illegal and his private matter in China.  It is an unspeakable pain.  In his first application he claimed Fallun Gong.  He cannot talk about other things.

44. The Tribunal asked the applicant if there was anything else he wanted to say.  He said that he likes Australia. 

45. The Tribunal checked with the applicant that he had said that his wife had repaid the loan shark and asked what problem he had going back to China.  The applicant said that he is so used to everything here.  The Tribunal commented that it did not seem that he would suffer significant harm if he went back.  The applicant said that he would suffer psychological harm.

46. The Tribunal does not accept the applicant’s claims for protection based on his establishing the casino as set out above.  That he did not make those claims in his first protection application or at the first Tribunal hearing, is inconsistent with his fearing harm from any of the loan sharks, gamblers or the police, as is his not mentioning them when questioned extensively by this Tribunal. The Tribunal does not accept that his explanations as set out above are satisfactory.  Further, on his evidence, his wife had repaid the loan to the loan shark in any event. 

47. Further, that he did not remember whether his debt to the loan shark was 100,000 or 200,000 RMB when he left China is inconsistent with its being true.  Those sums represented five and ten years’ savings respectively according the applicant, very substantial amounts.  Having to repay either sum would have been daunting and memorable.  The sums are also inconsistent with the 40,000 Yuan he stated at the departmental interview, as summarised in the delegate’s decision record provided to the Tribunal.

48. For those reasons, the Tribunal does not accept the applicant’s claims for protection arising from his claimed establishment of a casino or owing a loan shark 40,000 Yuan or 100,000 or 200,000 RMB are credible.

49. The Tribunal does not accept that returning to China to his wife and [child] after living in Australia for seven years will result in psychological harm.  The applicant made this claim for the first time at the Tribunal hearing in response to the Tribunal’s comment set out above and has provided no supporting medical evidence. 

50. The Tribunal does not accept that the applicant has suffered significant harm or a threat of significant harm in China as he has claimed and is not satisfied that there are 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 that he will suffer significant harm

51. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

52. 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

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

    Josephine Kelly
    Member