1412626 (Refugee)

[2015] AATA 3397

1412626 (Refugee) [2015] AATA 3397 (20 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1412626

COUNTRY OF REFERENCE:                  China

MEMBER:Meena Sripathy

DATE:20 August 2015

PLACE OF DECISION:  Sydney

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

Statement made on 20 August 2015 at 10:20am

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 the Peoples’ Republic of China (China), applied for the visa [in] January 2014 and 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 male from [Liaoning] Province, China. His immediate family comprises only his parents, who reside in China.  He speaks, reads and writes Mandarin. He holds a Chinese passport, issued [in] 2009 and valid for ten years. He indicates he has completed [number] years of education, and provides details of primary and middle schools up to [year]. He provides no information of any other qualifications obtained and no information relating to employment history.

6. The applicant indicated that he left China to escape harm from thugs and property developers and persecution by the authorities. He stated that property developers were granted permission to demolish the building where he lived and erect a new building for commercial purposes.  His family was offered a replacement apartment with less living space and insufficient compensation and so they refused to sign the agreement with the developers. The developers, with the authorities’ support, arranged for thugs to intimidate and assault the applicant’s family until they consented to move out. The applicant claimed that they reported the assaults to police who took no action against them. They were forced to sign the agreement and move out as they faced constant and continuous assaults. The applicant claimed that even after moving out the thugs continued to assault him when they saw him. For his safety, his parents stopped him from claiming his rights from the authorities and property developers. The applicant claims he will claim his rights from the authorities and property developers if returned to China. He will stand up against the authorities and developers dirty tricks in inciting thugs to harm his family and himself. He believes the authorities collude with the property developers and will not protect him.

7. Other than a copy of his passport, the applicant provided no other documents to the Department in support of his application. 

   Department interview

8. 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. 

   Applicant’s student visa application

9. The Tribunal also has the Department file relating to the applicant’s Student visa application ([file number]) before it.  Relevant documents in this file include copies and translations of: the applicant’s Household Register; his and his parents identification cards; documents relating to his study at [a] University from [year] to [year], including an academic transcript and evidence of a Bachelor’s degree in [subject]; the applicant’s father’s financial documents including bank statement and letter from his employer; letter from the applicant’s employer regarding his employment between 2009 and 2011 at [employer].

   Tribunal hearing

10. The applicant appeared before the Tribunal on 5 August 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant’s registered migration agent did not attend the hearing.

11. The applicant told the Tribunal his application was prepared with the assistance of a registered migration agent.  He did not want to add or change any information provided in the application.  The Tribunal confirmed that his family unit comprised himself and his parents, who reside in China. He confirmed their current address, which they rent, and the Tribunal asked for an account of their previous addresses.  He explained that his parents had been at the current address for about two years.  Prior to that they lived in another property which they also rented, but he couldn’t remember the complete address. They moved into this property after they vacated their original house which was demolished. After they signed the agreement regarding the demolition of their house, the applicant’s parents were offered an apartment in exchange and moved out of the house.  They moved out in May 2010 but the new apartment was not completed until the end of 2010 or early 2011.  They lived in the exchanged apartment for only 1-2 months and then arranged for it to be sold.  The applicant and his parents lived in a rental apartment until he came to Australia and sometime after he came here they moved to their current address. The Tribunal put to the applicant that the address which appears on his and his parents identification cards, submitted with his student visa application, is different to the addresses he provided in his account to the Tribunal. He confirmed that this address is his [relative]’s property and he used it when he applied for his new identification card at the end of 2010.  He said he did this because at that time they were intending to sell the new apartment and he knew he would be renting and then was planning to go overseas so he used his [relative]’s permanent residential address on his document.  When the Tribunal noted that his parents also had this same address on their cards, the applicant had no further explanation for this.

12. The Tribunal asked the applicant about his education history.  He confirmed his primary school and middle school as stated on his application form.  He stated he attended [named] High School and nothing further after that.  He never attended university and has not completed any other qualifications.  After high school he stayed at home and worked in various casual jobs, as [two occupations] until he came to Australia. When the Tribunal put to him that his student visa application contained various information and documents relating to his university level studies and work history, the applicant stated that these documents were prepared by his then migration agent for the purposes of the student visa application and are false. 

13. He confirmed that he applied for a passport in 2009, because he was intending to travel overseas to work.  He was thinking of going to [another country] but he never did.  He applied for his passport in person, with his mother, and had no difficulties getting it.

14. He came to Australia on a student visa but only studied for one month or so.  He ceased studying because he needed to work to survive.  He has done various jobs since coming [here].  He is currently working in [a certain industry]. 

15. The Tribunal asked the applicant why he came to Australia.  He confirmed the claims made in the application and provided the following further elaboration.  All the properties in the district of his parent’s original house were to be demolished, but the conditions offered to the property owners were unfair and the residents were opposed.  He confirmed that the property was in his father’s name.  His father was given a notice of intention of the proposed development in around April 2010.  The development was a government project but the property developer issuing the notice was a private company.  They made an oral offer to his father for exchange of his house for an apartment, but the apartment offered was smaller and inferior to their original property. When the Tribunal asked the applicant about the size of the two properties, he stated the original house was two rooms and approximately 50 square metres.  The apartment offered was also two rooms but around 40 square metres.  After the oral offer was made, the applicant’s father was not happy to agree to it and they tried to argue about it.  They were not successful in their attempts to negotiate. The negotiations were between his father, the property developers and the Residential Committee, which included local government officials. The developers became angry because the residents’  refusal caused a delay in the project.  So they hired some thugs to force the residents to sign.  The thugs came to them on three occasions and harassed and intimidated the residents.  He described that there were 20-30 thugs and on one occasion they came with iron and wooden bars and began hitting the residents. The applicant was hit on his back and shoulder.  He suffered minor injuries and did not go to hospital, but he visited a doctor and was prescribed medication. They beat up other people also, and one person was hospitalised for two days. The applicant’s parents were not harmed in this attack.  The thugs also cut the electricity and water from time to time.  The Tribunal asked the applicant if he had any photos of his or anyone’s injuries. He said there were photos taken, but not by him, and the police kept them. He said the police were called and took them to the station to make statements but they did nothing further.  The developers and people from the Residential Committee came every day to the residents’ houses to intimidate and harass them into signing the agreement.  The applicant said he was not always present at home but neighbours would tell him what they said.  Eventually his father signed the agreement, in about May 2010, and they moved out about one week later.  They moved into a rental property as the apartment provided in exchange was not completed until the end of 2010 or early 2011. The new apartment was in his father’s name.  They sold this property soon after the applicant came to Australia in 2012, and the applicant’s parents continue to live in a rental property.

16. The Tribunal asked the applicant if he or his parents experienced any harm after his father signed the agreement and moved out of the house.  He said sometimes the thugs verbally abused him and on one occasion they beat him up.  When asked to elaborate on this, the applicant said he could not remember when this was.  He said he came across them in the street and argued with them, telling them what they did was unfair and they beat him up.  He ran to the police and they took a statement from him but he heard nothing further.  The applicant confirmed that his parents did not have any further problems other than occasional verbal abuse by the thugs. They have not had any problems since the applicant has been in Australia.

17. The Tribunal asked the applicant about his claim, made in his application, about continuing to claim his rights.  He said that he would like to pursue his rights if he returned to China.  He believes that although the property was sold, his family was not properly compensated and he wants to talk to the government about this.  The Tribunal asked if he took any such action when he was in China.  He said he went with a group of residents to try to visit the mayor of the city government but they were not able to see him.  They went as a group and had banners.  There were security guards present and they did not allow the group to enter.  They returned home after this.  He said he only did this once. His parents were not involved. They have not tried to complain about this matter since he has been in Australia. 

18. The Tribunal asked the applicant what he is afraid of if he returned to China now.  He said that he would like to continue to appeal to the provincial government about this matter because he wants to assert his individual rights.  He said he didn’t know about human rights before but since being in Australia he has learned about this and he wants to assert his rights.  He is afraid the government will harm him or get thugs to stop him because they do not want their progress to be delayed.  The Tribunal asked the applicant why he would want to do this now.  He said he wants to assert his rights. 

19. The Tribunal asked the applicant why he came to Australia in 2012. He said the migration agent suggested it to him and told him he had places for applicants to come to Australia.  He wanted to escape the thugs from the underground society.  The Tribunal asked if he was escaping harm, why did he wait until January 2014 to lodge this application.  He said he did not know about protection visas when he first came. He later found out through friends and then got advice to lodge the application.

20. The Tribunal asked the applicant who he fears harm from.  He said he fears the government would arrange for thugs to harm him. When asked why they would do that, he said they would do it if he appeals to them about the demolitions.  When asked whether he believed the government would harm him if he did not appeal, he said they would not because he wouldn’t be slowing down their progress. 

21. When asked if there was any other reason he could not return to China the applicant said he has been living here for two years now and he would like to stay. 

22. At the conclusion of the hearing the Tribunal reiterated concerns and issues arising from the evidence as discussed in the course of the hearing.  It discussed the issue of his credibility, given the false documents he acknowledged he had provided about his education and employment history in his student visa application, and lack of documentary evidence to support his claims about the forced demolition of his parents’ property, attacks by thugs and complaint actions taken.  In his response, the applicant told the Tribunal that his parents are unaware he has made this application and so he does not know how he can ask his father for the documents.   He reiterated that the false documents about his education and work for his student visa application were arranged by his then migration agent.

23. The Tribunal also discussed the issue of whether the applicant’s fears of harm from thugs has the required nexus to one of the five Convention reasons.  It explained that if the fear of harm from thugs was criminal in nature and/or for economic reasons it may not fall within one of the Convention grounds. The Tribunal also raised the issue of whether there is a real chance or real risk of harm to the applicant given the time that has passed, and the fact that the applicant’s parents’ home has been demolished and they accepted and now sold the apartment offered in exchange.  In his response the applicant reiterated that if he returned to China he wants to assert his right to complain about the inadequate compensation to his parents and fears the government will arrange for thugs to beat him because he will be slowing down their progress.

24. The Tribunal allowed the applicant one week after the hearing to provide any further documents or submissions in support of his application. 

25. To date the applicant has provided no further documents or information.

    Independent Information

26. 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.

27. 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.

    [1] Amnesty International 2012, Standing Their Ground, ASA 17/001/2012, October, p.5 < Amnesty International 2012, Standing Their Ground, ASA 17/001/2012, October, p.5 < 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 < Accessed 5 August 2015 <CIS961F9401917>

28. 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]

    [5] US Department of State 2014, 2013 Country Reports on Human Rights Practices – China, 27 February, Section 2b < Accessed 5 August 2015 <CIS27374>

    [6] Freedom House, Freedom in the World 2014 - China, 23 January 2014, available at: [accessed 5 August 2015] <CX321620>

29. Although payment of compensation is required by law and under the constitution, a Landesa Rural Development Institute survey found that 22.5 per cent of farmers received no compensation for their expropriated land.  In 12.7 per cent (of all seizures) no offer of compensation was made while in 9.8 per cent of cases, compensation was promised but not paid. 

    FINDINGS AND REASONS

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

    Nationality

31. On the basis of his evidence to the Tribunal, his Chinese passport, and the delegate’s decision record which indicates that the Department did identify any issue with, and accepted, the applicant’s identity and nationality, the Tribunal accepts the applicant is a national of China and considers China is the country of nationality and the receiving country for the purpose of assessing his claims against the refugee and complementary protection criteria respectively.

    Consideration of applicant’s claims

32. 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. 

1. 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) 34 ALD 347 at 348).

2. The Tribunal has considered the applicant’s claims and the evidence described above and makes the following findings. 

3. The applicant has claimed that his parents were forced into agreeing to the demolition of their home by property developers after the developers arranged for thugs to intimidate, harass and attack them. He referred in his oral evidence to various documents relating to these transactions.  For example, he said his parents received a notice of a proposed development April 2010 and that they signed an agreement to consent to the demolition in exchange for an apartment in May 2010, following the claimed harassment and intimidation by thugs arranged by the developers. He said the apartment they were given in exchange was transferred to the applicant’s father in or around the end of 2010.  However, he did not provide any of these documents at the time of making his application, and has not submitted anything at any time since then.  By way of explanation, the applicant told the Tribunal that he didn’t understand the significance or importance of providing documentary evidence when he made the application. He confirmed that he had not made any attempt since then to try to get these documents from his father. The Tribunal notes, and pointed out to him at hearing, that the significance of documentary evidence in his case was discussed at the delegate’s interview in June 2014, and mentioned in the delegate’s reasons for decision.  At the time of the hearing, more than one year had passed since then and yet he had still not taken any steps to locate the documents. By way of explanation, he told the Tribunal at the hearing that his parents were not aware he had made this application and so he found it difficult to explain to his father why he needed them.  It notes that despite a further opportunity to provide material following the hearing, he has not provided anything else. 

4. The applicant therefore relies on his oral evidence alone to support his claims. The Tribunal has reservations about this for the following reasons. He acknowledged in his evidence to the Tribunal that he provided false information and documents in his student visa application about his education and employment history. He was granted, and came to Australia on a student visa on the basis of this information and he acknowledged that he did not study beyond the first month after arrival.  The Tribunal considers his actions providing false information and ceasing study are flagrant violations of migration law and his visa conditions.

5. Though he claims he left China because he fears harm, the Tribunal observes that he didn’t make this application for protection for almost one and half years after his arrival. It does not accept as convincing his explanation for the delay in making the application - that he did not know about protection visas until later. The Tribunal considers the applicant’s delay in making his protection visa application is not consistent with his claimed fear of harm and, together with the fact that the applicant was prepared to provide false information to obtain a visa in the past, reflects poorly on his credibility. 

6. The Tribunal acknowledges that land expropriation and incidents involving citizens being forced from their homes occurs in China, as referred to in the independent information referred to above.  On this basis, it accepts it is plausible that there may have been a development project involving the applicant’s parents’ village and perhaps even their property. The Tribunal has considered the explanation the applicant gave at the end of the hearing for why he has been unable to obtain documentary evidence from his father to support his claims about this matter.  Ultimately, notwithstanding it’s reservations about his credibility, the Tribunal will proceed on the basis that it is possible that his parents’ home was the subject of a property development and that they were offered an apartment in exchange.

7. The applicant has also claimed that when his parents opposed the development and refused to sign the agreement to demolish their property the developers arranged for thugs to intimidate and harass them.  He claims he and other residents were attacked by these thugs.  Again, his only evidence in support of this claim is his oral testimony.  In respect of this claim the Tribunal considers his oral account of the attack is vague and lacking in convincing detail.  He was unable to recall the date, or give any reasonable detail of the timing of the attack. His description of who was involved and what they did was general and superficial.  He claims that he only suffered minor injuries and did not attend hospital, but then he told the Tribunal he visited the doctor and was prescribed medication. He referred to other people also being beaten up and one person being hospitalised for two days. He provided no other evidence in support of his claims, such as hospital records relating to the resident who was hospitalised or the medical prescription he obtained. Given the Tribunal’s concerns about the applicant’s credibility, and the vague and general nature of his oral testimony of this incident, the Tribunal does not accept that the applicant and/or other residents were attacked by thugs to force his parents and residents to sign the agreement as claimed.

8. Therefore while the Tribunal accepts that the applicant’s parents’ house was the subject of a development project and his father accepted an apartment in exchange for demolition of his house, it does not, however, accept the applicant and residents were attacked by thugs arranged by the property developers to force them to agree to the compensation and demolition. The Tribunal accepts that the house was demolished and the applicant’s family accepted an apartment in exchange, which they subsequently sold. It accepts that the proceeds of the sale was used to fund the applicant’s travel to Australia. 

9. Given the time that has passed since the applicant’s parents’ property was demolished and the fact that the family has since disposed of the asset which was offered by way of compensation, the Tribunal is not satisfied that there is a real chance the applicant will face serious harm, or a real risk he will suffer significant harm arising from this incident in future.  

10. This would be the conclusion even if the Tribunal proceeded on the basis that the applicant’s claim he was attacked by the thugs might possibly be true, as the property development in this case has taken place and the Tribunal is not satisfied that the applicant’s family is at risk of harm for this reason in the reasonably foreseeable future.

11. The Tribunal has considered the applicant’s claim that the thugs verbally abused him and beat him up after his father signed the agreement and they moved out of the house.  When asked to elaborate, he explained that he had an argument with them about the unfairness of what they did to his family and they beat him up.  The Tribunal finds the applicant’s explanation implausible and not convincing and it does not accept that this incident took place as claimed. It finds it difficult to accept that the applicant would seek to engage these thugs, as he has called them, in an argument as he described if they had intimidated and harassed the community as he claims.  Even if it were to accept an assault did occur, the Tribunal cannot be satisfied that it wasn’t provoked by the applicant and/or that it was an unrelated criminal act inflicted upon the applicant by disaffected persons. Therefore the Tribunal is not satisfied, on the available evidence, that the applicant is at risk of harm from these thugs in the reasonably foreseeable future.

12. The applicant has also claimed that he fears harm because he has tried to in the past, and would continue to if returned in future, complain to the government about the inadequate compensation offered to his family for the demolition of their home.

13. The applicant claimed that while in China he tried to complain about this matter to the mayor’s office in the local city government but he wasn’t allowed in.  In his evidence to the Tribunal he further elaborated on this claim stating that a number of residents in his area who were opposed to the development sough to bring the matter to the mayor’s attention.  He said he joined the group and they had banners.  However the security guards did not allow them to enter and they went home after this. He could not remember when this event occurred.  He said he did this on one occasion.  His father was not involved and has not been involved in any further actions of this nature. 

14. Again, the Tribunal acknowledges that serious issues relating to land expropriation and seeking compensation exist in China, as referred to in the independent information referred to above.  Given this information, it accepts that it is plausible and possible that residents in the applicant’s village may have been opposed to development projects and may have sought to raise this issue with the city government.  By the applicant’s own evidence however, no harm was suffered by any of the residents or the applicant in the context of this action in the past. His own evidence was that he did not take any other action to complain about development projects or inadequate compensation prior to leaving China. He said his parents have also never taken any such action before or since he has been here. 

15. The applicant told the Tribunal if he returns to China he intends to pursue his right to complain and that he fears harm from the government or thugs who may arrange to stop or discourage him from doing so.  The Tribunal does not accept as plausible or credible that the applicant will complain about these matters upon his return.  It observes that he did not take any further steps, other than the one time referred to above, to complain while he was in China in the two years since the development project affecting his family.  His parents have not taken any steps to complain before he left or since then. He did not suffer any harm when he previously attempted to meet with the mayor. The Tribunal also takes into consideration that the applicant’s father accepted the apartment offered by way of compensation for the demolition of his house and has already sold this property and used the proceeds of sale and has not himself taken any other steps to pursue more compensation. He told the Tribunal at the hearing that his parents have no knowledge of this protection visa application and he did not know how he could ask them for relevant documentation. The Tribunal infers from this that the applicant’s parents do not want him to take any future action on their behalf in this matter.  In these circumstances it is difficult to see how the applicant, who is not the registered owner of the original property, has cause to pursue any complaint regarding the compensation on his father’s behalf and the Tribunal does not accept that he will do so.   

16. The Tribunal has also considered the applicant’s claim that his resolve to pursue the claim has been strengthened by knowledge of human rights he has gained while in Australia.  The Tribunal is not satisfied that this knowledge of human rights has renewed his resolve or given him any greater cause to pursue the complaint, and it does not accept that he will do so for this reason. 

17. The applicant acknowledged that if he did not take action to complain to the government about these matters there is no other reason he fears harm in China. 

18. Given that the Tribunal does not accept the applicant will take any action to complain about matters relating to the demolition or compensation the Tribunal is not satisfied there is a real chance he will face persecution for a Convention reason in the reasonably foreseeable future. 

19. 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).

20. 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, the Tribunal is also not satisfied that there are substantial grounds for believing there is a real risk he will suffer significant harm if removed from Australia to China and the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

21. 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

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

    Meena Sripathy
    Member

    
    

    RELEVANT LAW

23. 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

24. 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).

25. 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.

26. 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.

27. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

28. 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.

29. 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.

30. 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.

31. 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.

32. 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.

33. 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

34. 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’).

35. ‘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.

36. 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

1. 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.

   
   

> Accessed 5 August 2015 <CIS24185>

> Accessed 5 August  2015 <CIS24185>