1417065 (Refugee)

[2016] AATA 3065

1417065 (Refugee) [2016] AATA 3065 (15 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1417065

COUNTRY OF REFERENCE:                  China

MEMBER:Linda Holub

DATE:15 January 2016

PLACE OF DECISION:  Sydney

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

Statement made on 15 January 2016 at 4:15pm

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 arrived in Australia [in] September 2011 on a TU570 subclass student visa which was valid until [date] March 2013.  He lodged an application for Protection [in] March 2014.  The delegate refused to grant the visa [in] September 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:

6. 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.

7. 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’).

8. 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

9. The Tribunal has before it the Department’s file relating to the applicant’s Protection visa application and the Tribunal’s file relating to the review application.  The Tribunal has also given consideration to the delegate’s decision record provided by the applicant to the Tribunal.

10. The applicant’s written claims are contained on the written forms of his Protection visa application.  He claims he:

    a.left China because he led a demonstration in China in front of the municipal government building in his hometown protesting against forced abortion following the forced abortion of his wife’s second pregnancy.

    b.is a member of the Hui ethnic group in China and was allowed to have two children in total but in [month and year] when his wife was pregnant with his second child, five officers from the Family Planning Office came to his home and forced his wife into a van after it became known that she was pregnant for a second time.  His wife was taken to a local hospital and she was injected with an abortion medication which resulted in the termination of her pregnancy against their will.  His wife suffered depression as a result of this.

    c.was at work at the time of the incident but when he found out what had happened he was very angry.  He went to the local Family Planning Office demanding an explanation and punishment of those responsible for the forced abortion. He had previously been told that they are not allowed to have a second child because the Hui ethnic group population is too large already. He told them that the state government’s policy allowed it and refused to follow the direction for his wife to have an abortion.

    d.after he returned from the Family Planning Office he discussed what happened with his neighbours who were also Hui.  They too were angered by the government action and he asked them to protest against this treatment of the Hui ethnic group.  [In] April 2011 about [number] people from his village went to the district government to demand action by the government against the perpetrators.  The government officials did not want to talk to them but the group of demonstrators stayed there for around five hours.

    e.the police followed a local government direction and wanted to detain him for his role in the demonstration.

    f.sought compensation and an apology for the forced abortion of his wife.  [In] May 2011 he again went with his fellow villagers to the [government] building and held a demonstration in order to get the government’s attention to resolve the matter justly.  Again they sat in front of the building for five hours.  Then about 20 police officers came and used batons to disperse them.  He was beaten by a police officer with a baton, which resulted in the heavy bruising of his arm.  After this they were dispersed.

    g.the police then held an investigation into who organised and led the demonstration.  They told the villagers they would arrest and detain the leader of the demonstration.  He became worried that he would be arrested so he planned to leave China.  He obtained a visa to travel in September 2011 and left China to escape persecution.

    h.fears that the police will arrest him and mistreat him if he goes back to China.

    i.the government and police in China will not protect him because they are the very people who persecute him.

11. The delegate’s decision record dated [in] September 2014 indicates that the applicant was invited to an interview to be held [in] September 2014 which he did not attend.  The delegate subsequently proceeded to make a decision on the claims based on the applicant’s written claims submitted by the applicant in his visa application.

12. The delegate refused to grant a Protection visa to the applicant on the basis that the applicant’s claims could not be properly assessed under Article 1A of the Refugees Convention based on the information provided.  The delegate outlined a number of areas where he would have liked to have had the opportunity to gather further information in respect of the applicant’s claims.  Without that opportunity, the delegate described the claims as scant and lacking in substance and veracity.  Therefore, the delegate was not satisfied the applicant was of any adverse interest to the Chinese authorities for a Convention-related reason, prior to, or at the time of his departure from China.  He was also unable to be satisfied that there is any evidence to indicate he would be of any interest to the authorities, for a Convention-related reason in the reasonably foreseeable future if he were to return to China.

13. The applicant then applied for a merits review of that decision by the Tribunal [in] October 2014.

14. By letter dated 14 December 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 15 January 2015.  The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice.  On 12 January 2015, the Tribunal received a response from the applicant through his representative indicating that he would not be attending the hearing.  The Tribunal called the applicant’s representative and confirmed that the applicant was agreeable to the Tribunal making its decision on his written claims.

    FINDINGS AND REASONS

Nationality

1. On the basis of the applicant’s passport ([number])[1]issued by the People’s Republic of China, provided to the Department of Immigration and Border Protection, the Tribunal finds that the applicant is a citizen of China.  There is nothing in the evidence before the Tribunal to suggest that the applicant has a right to reside in any country other than China. 

   [1] DIBP file, folio 2

2. The Tribunal finds that the claims should be assessed against China for the purposes of the Convention in s.36(2)(a) as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa). Similarly, the Tribunal is satisfied that the applicant does not have a right to enter and reside in another country for the purposes of s.36(3).

3. The issue in this case is whether the applicant has a well-founded fear of being persecuted in China for reasons of his race, religion, nationality, political opinion or membership of a particular social group and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his 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.

5. The mere fact that an applicant claims to harm for a particular reason does not establish either the genuineness of the asserted harm or that it is ‘well-founded’ or that it is for the reason/s claimed. Further, the Tribunal is not required to accept uncritically any and all the allegations made by an applicant (Randhawa v MIEA (1994) 52 FCR 437, p.451). The applicant did not provide sufficient detail in his specific claims to satisfy the Tribunal that he had suffered serious or significant harm. Had the applicant appeared before the Tribunal, the Tribunal could have asked him to elaborate on his claims on how he had been treated.

6. There were a number of matters on which the applicant did not submit sufficiently detailed information and although the Tribunal informed him that that it did not have sufficient information he chose for the question to be decided on that available information without providing additional written or oral information, including:

   a.about the reasons for the delay in applying for protection.  The applicant arrived in Australia [in] September 2011 but did not lodge his Protection visa application until [date] March 2014.  This length of delay is significant if he genuinely feared harm from authorities in China.

   b.about the circumstances surrounding the demonstration that he claims to have led.

   c.about his membership of the Hui ethnic group in China.

   d.about the state government’s policy in Henan Province that members of the Hui ethnic group were allowed to have two children.

   e.about his wife pregnancy in [month and year] at the age of [age] some [number] years after the birth of his first [child] in [year].

   f.his wife’s depression resulting from the claimed forced abortion.

   g.whether the police followed a local government direction and actually detained him for his role in the demonstration.

   h.further details regarding his claim that [in] May 2011 he went for a second time with his fellow villagers to the [government] building and held a demonstration and that police officers came and used batons to disperse them and that he was beaten by a police officer resulting in the heavy bruising of his arm.

   i.about his claims that the police held an investigation into who organised and led the demonstration and that he would consequently be arrested and detained.

   j.why he fears that the police will arrest him and mistreat him if he goes back to China.

7. The applicant’s written statement provided insufficient detail and consequently the Tribunal was not able to be satisfied about the authenticity and accuracy of the claims set out in paragraph 10.

Does the applicant have a well-founded fear of persecution?

1. The applicant’s written statement provided insufficient detail and given the Tribunal was not able to explore the claims made by the applicant in the manner required to satisfy itself as outlined previously, the Tribunal was consequently not able to be satisfied that the applicant has a well-founded fear of persecution or that he will be persecuted for reasons of his religion, nationality, membership of a particular social group or political opinion if he returns to China. 

Are there 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 he will suffer significant harm?

1. Given the lack of detail relating to the applicant’s claims as noted earlier, 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 he will be subject to significant harm in China

   CONCLUSIONS

2. For the reasons set out above, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore he does not satisfy the criterion set out in s.36(2)(a) of the Act.

3. The Tribunal also considered the alternative criterion in s.36(2)(aa).For the reasons set out above, the Tribunal is also not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

   DECISION

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

   Linda Holub
   Member