1415746 (Refugee)

[2015] AATA 3161

1415746 (Refugee) [2015] AATA 3161 (20 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1415746

COUNTRY OF REFERENCE:                  China

MEMBER:Rachel Homan

DATE:20 July 2015

PLACE OF DECISION:  Sydney

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

Statement made on 20 July 2015 at 2:58pm

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 the Tribunal accepts is a citizen of China, applied for the visa [in] January 2014 and the delegate refused to grant the visa [in] August 2014. The applicant sought review of that decision on 19 September 2014.

3. On 23 June 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 20 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. No response was received. The Tribunal also sent SMS reminders of the scheduled hearing to the applicant on 13 July 2015 and 17 July 2015. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. The applicant has not contacted the Tribunal to explain her absence. 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.

4. 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 her being removed from Australia to China, there is a real risk that she will suffer significant harm.

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

   RELEVANT LAW

6. 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

7. 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).

8. 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.

9. 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.

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

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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

17. 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’).

18. ‘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.

19. 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

20. 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. Amongst other things, the Tribunal has taken into account the DFAT Country Report on the People’s Republic of China, dated 3 March 2015, in the present case.

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. The applicant is a [age]-year-old female born in [Hunan] Province, China. In her visa application form, the applicant stated that she belonged to [an] ethnic minority and was Buddhist. The applicant stated that she had completed [number] years of education and was self-employed in a [business] up until June 2012. The applicant had resided at the same residential address for the last 10 years. The applicant provided details of her husband and [age]-year-old son, who remained in China, as well as her parents and [siblings]. The applicant indicated that she completed the visa application form with the assistance of a registered migration agent.

22. Submitted with the visa application was a photocopy of the applicant’s passport, issued [in] 2010, which shows that she entered Australia [in] October 2013. The passport also contains a [third country] visa and entry/exit stamps, for travel between [December] 2012 and [January] 2013.

23. The applicant’s claims for protection were set out in a typed statement in the Mandarin and English languages. According to her statement, the applicant fell in love with Western culture and democracies after her arrival in Australia. Her ideas are very different from the Chinese Communist Party and if she were to return to China with these Western thoughts it is likely that she would act or speak inconsistently with what is required by the Party. The applicant believed that the police would come to talk to her and put pressure on her.

24. The applicant stated that her family opened a small [business] in 2008. The business was very successful but some rogues in the town began to make trouble and ask for a protection fee. Initially, the applicant’s family paid the protection fee, but the rogues’ demands increased. Sometimes the rogues would [come to the business] but refuse to [pay]. The [business]’s staff were beaten up when they tried to ask for payment. After a long period of harassment, the family went to the police to report the incidents. The police told the applicant and her husband to go home and wait until further notice. In the meantime, the harassment got worse. The gangsters broke everything and warned that if they ever went to the police again they would smash the [business]. The family kept the [business] for a few more years until 2012 when, due to a downturn in the economy and the local government’s disregard of security issues, the business was closed down.

25. The primary decision record, which was submitted to the Tribunal with the review application, indicates that the applicant was invited to an interview [in] August 2014 but failed to attend.

26. No additional evidence was submitted with the review application and, as indicated above, the applicant failed to attend the hearing to which she was invited by Tribunal. In the absence of an opportunity to question the applicant further, the Tribunal is not satisfied that the applicant genuinely holds the thoughts that she describes in her written statement, or that she would act or speak inconsistently with what is required by the Chinese Communist Party. For this reason, the Tribunal is not satisfied that the applicant faces a real chance or risk of serious or significant harm as a consequence of any actual or imputed political opinion. The Tribunal is also not satisfied that the claims regarding the applicant’s family’s [business] are true. In the absence of an opportunity to question the applicant further, the Tribunal is not satisfied that there would be any real chance or risk of serious or significant harm to the applicant now or in the foreseeable future as a consequence of these past events, even if they did occur.

27. The Tribunal is not satisfied that the applicant has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. 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).

28. 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). The Tribunal is not satisfied that 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 that she will suffer significant harm. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

29. 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

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

    Rachel Homan
    Member