1413117 (Refugee)

[2015] AATA 3162

1413117 (Refugee) [2015] AATA 3162 (14 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1413117

COUNTRY OF REFERENCE:                  China

MEMBER:Melissa McAdam

DATE:14 July 2015

PLACE OF DECISION:  Sydney

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

Statement made on 14 July 2015 at 11:22am

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 who claims to be a citizen of China, applied for the visa [in] January 2013 and the delegate refused to grant the visa [in] July 2014.

   RELEVANT LAW

3. 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.

4. 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).

5. 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.

6. 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’).

7. 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.

   SUMMARY OF CLAIMS AND EVIDENCE

   Migration History

8. The applicant arrived in Australia in February 2002 on a South Korean passport in a different name. She applied for a Protection visa [in] March 2002 claiming to be a South Korean national. The application was refused [in] June 2002. She applied for a review of the decision to the Tribunal. On 25 March 2003 the Tribunal (differently constituted, Refugee Review Tribunal File Number N02/43350) affirmed the decision.

   Current Protection visa application

9. The applicant applied again to the Department of Immigration for a Protection visa [in] January 2013, claiming to be a citizen of China. Following the Full Federal Court judgment in SZGIZ v MIAC[1]  the applicant was considered not prevented by s.48A of the Act from lodging another Protection visa application, on the basis of the Complementary Protection criterion.

   [1] [2013] 212 FCR 315.

10. The following is a summary of the claims and information provided by the applicant in her current Protection visa application:

    a.The applicant was born on [date] in Hun Chun, Jin Lin [Jilin], in China. She lived in [her home town] in Hun Chun.

    b.The applicant submitted a Chinese Identity document in her name.

    c.She is ethnic Korean and Christian. She had approximately [number] years of school education in China. She is married. She has an adult daughter in China. Her mother and [sibling] are also in China.

    d.She left China to escape discrimination as a Korean Chinese.

    e.If she returns to China she will be marginalised and ostracised and experience grave socio-economic depravation.

    Departmental Interview, [April] 2014

11. The following is a summary of the claims and information provided by the applicant in her Departmental Interview:

    a.The applicant’s ex-husband beat her in China so she fears returning. She also fears she will not get work because she is ethnic Korean. She borrowed money to come to Australia and if she returns will have problems because she cannot repay the moneylenders. If the Chinese authorities know she has applied for a Protection visa in Australia they will chase her and not let go. They will prosecute the applicant. She will get a harsher penalty because she is ethnic Korean.

    b.She did not mention some of these claims to her Agent when they prepared her Protection visa application because she forgot to give him full details. She was scared to write about them in the form as she may be beaten by her husband in China. She has wounds from an attack by him with scissors.

    c.Her full name is [name]. She used another name when she came to Australia on a false passport. She was too fearful of her ex-husband to use her real name.

    d.The applicant is separated from her husband. She has one daughter. The daughter has little contact with her father. The applicant’s mother took care of the applicant’s daughter when the applicant left China. The applicant does not send money to her daughter or to anyone in China.

    e.She did not report her husband to the police because he did not let her. She saw a doctor three times. She went to court to get a divorce but they told her she needs her husband’s consent to divorce. The applicant’s husband tells the applicant if she tries to get a divorce he will go after the applicant’s mother.

    f.Wherever she may be in China her husband will chase her. He sent someone to find the applicant in Australia but the applicant ran away.  She is not sure if someone came.  She moved to a different place. She did not contact the police.

    g.The applicant speaks Korean and a little Chinese. She went to a state school in Jilin. She also went to vocational school in China. Her education was in Korean so it was difficult to get a job. She did not get a chance to be employed because she is ethnic Korean. The applicant lived in an area of China where ethnic Chinese were the majority.

    h.The applicant’s husband works as [an occupation] in China. Her daughter works as [occupation] at a [workplace].

    i.She does not know what her first lawyer put in her first Protection visa application form. She just gave him money. She did not tell the truth then because she did not understand the system in Australia.

    Delegate’s Decision

12. The Delegate did not find the applicant truthful in relation to her new claims. The Delegate took into account the applicant’s nervousness and assessed her claims against the Refugee Convention and Complementary Protection criterion. The Delegate was not satisfied she would face persecution or significant harm on return to China.

    Information to the Tribunal

13. The applicant submitted a certified copy of her Chinese passport issued to her in her name by the Chinese Consulate in Sydney [in] 2006.

14. On 19 May 2015 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 7 July 2015. The applicant was advised that if she did not attend the hearing and a postponement was not granted, the Tribunal may make a decision without further notice.

15. The applicant did not appear before the Tribunal on 7 July 2015 at the time and place of the scheduled hearing. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The applicant submitted her Chinese ID document and current passport. On the basis of these documents and the applicant’s current evidence the Tribunal is satisfied the applicant is a citizen of China. The Tribunal assesses the applicant’s claims against China as her country of nationality and receiving country.

17. 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.

    Credibility

18. 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.  It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.  Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts.  A decision‑maker is not required to make the applicant's case for him or her.  Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169‑70).

19. There are substantial gaps in the information provided by the applicant regarding her past circumstances in China and the bases for her fears of returning there.

20. If the applicant had attended the scheduled hearing the Tribunal would have discussed in detail with her the discrimination she claimed to have experienced as an ethnic Korean in China. The Tribunal would have asked the applicant how this affected her in practice including in relation to her education and employment history in China. The Tribunal would have asked the applicant about the situation for other ethnic Koreans in her community. The Tribunal would have sought clarification about the ethnic background of the applicant’s husband and, if ethnic Korean, how he obtained employment in China notwithstanding the claimed discrimination. The Tribunal would also have asked about the applicant’s daughter’s employment experiences in China. The Tribunal also would have sought information from the applicant in relation to any specific experiences or claims of government, societal or community discrimination. The Tribunal also would have asked the applicant about the ethnic background of her parents and their situation in China.

21. If the applicant had attended the hearing the Tribunal would have asked the applicant for details about the violence and harm she claimed to have experienced from her husband. The Tribunal would have explored with the applicant why she was claiming violence by him, and whether or not she had attempted to leave him, divorce him, or get protection from him in China. The Tribunal would have discussed with the applicant whether or not her husband would still retain an interest in the applicant given she has lived outside China and had little or no contact with her husband since 2002. The Tribunal would also have asked the applicant about relocation possibilities within China.

22. If the applicant had attended the hearing the Tribunal would have discussed with the applicant why she obtained a Chinese passport from the Chinese Consulate in Sydney in 2006 and whether or not this indicated a willingness at the time to return to China or to avail herself of the protection of China.

23. If the applicant had attended the hearing the Tribunal would have asked her why she omitted telling her representative many of her claims for protection, in the preparation of her current Protection visa application. The Tribunal would have discussed with her concerns the omissions raise about the genuineness of newly claimed fears. The Tribunal would also have discussed with the applicant if she still maintained all or any of the claims she had put forward over the course of her current Protection visa application.

24. If the applicant had attended the hearing the Tribunal would have asked her for specific details about her claimed problems with ‘moneylenders’ in China. The Tribunal would have asked about the amount borrowed, the nature of her contact with the moneylenders, and whether or not there had been any subsequent contact or threats. The Tribunal would have explored with the applicant why she claimed to fear moneylenders in China.

25. If the applicant had attended the hearing the Tribunal would have discussed with her how the Chinese government would be aware she had applied for protection in Australia and why they would have any adverse interest in her for doing so.

26. In sum if the applicant had attended the hearing the Tribunal would have had the opportunity to discuss her claims with her in more detail and test their veracity. The Tribunal would have sought further information in relation to the matters raised above. The Tribunal would have questioned the applicant further about her and her family’s experiences in China. The Tribunal would have used the opportunity of the hearing to discuss these issues with the applicant and give her the opportunity to explain what she fears would happen if she returns to China now, or in the reasonably foreseeable future, and the reasons why it would happen. It was not possible to do so as the applicant did not attend the offered hearing. 

27. The applicant failed to attend the Tribunal hearing so there is very limited information before the Tribunal about the specific detail and genuineness of the applicant’s current protection claims.  In the present case, the Tribunal observes that the applicant’s claims lack detail in significant aspects. There is very little information before the Tribunal to support the applicant’s claim that her husband was violent to her in China and that there is a real risk he would be again if she returns to China.  There is little information or explanation about the discrimination she claimed to face and fear in China. There is no information about her family’s current circumstances in China. There is very little information to support the applicant’s claim she owes money to moneylenders who would harm her on return to China. There is very little information to support the applicant’s claim the Chinese government would be, or would become, aware of her Protection visa application in Australia and harm her for this.

28. The Tribunal has insufficient evidence to be satisfied that the events and circumstances raised by the applicant are factual, and the Tribunal does not accept her claims. On the evidence before it the Tribunal does not accept that the applicant’s husband was violent to her in China. The Tribunal is not satisfied there is a real risk the applicant’s husband would harm her on return to China. On the evidence before it the Tribunal does not accept that the applicant owes money to moneylenders in China. The Tribunal is not satisfied there is a real risk the applicant would be harmed by moneylenders in China.  On the evidence before it the Tribunal does not accept that the applicant was discriminated against in China as an ethnic Korean. The Tribunal is not satisfied there is a real risk the applicant would be discriminated against or harmed in China as an ethnic Korean. On the evidence before it the Tribunal does not accept that the Chinese government are or would become aware that the applicant has applied for a Protection visa in Australia. The Tribunal is not satisfied there is a real risk the applicant would be harmed in China for applying for a Protection visa in Australia.

29. Given the lack of information before it the Tribunal does not accept the applicant has experienced any harm in China.  The Tribunal is not satisfied there is any reason or basis to believe she will experience harm if returned to China.

30. The Tribunal has considered all the applicant’s protection visa claims and is not satisfied on the available evidence that there is a real chance or real risk she would face serious or significant harm in China.

    CONCLUDING PARAGRAPHS

31. For the reasons given above, the Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk she will suffer significant harm. 

32. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations.

33. 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.

34. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

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

    Melissa McAdam
    Member