1420337 (Refugee)

[2016] AATA 3777

1420337 (Refugee) [2016] AATA 3777 (29 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1420337

COUNTRY OF REFERENCE:                  China

MEMBER:Christine Cody

DATE:29 April 2016

PLACE OF DECISION:  Sydney

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

Statement made on 29 April 2016 at 9:46am

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. The applicant claims to be a citizen of the People’s Republic of China (China) who seeks to be granted a Protection visa under s.65 of the Migration Act 1958 (the Act) on the grounds that she is a refugee or entitled to protection under Australia’s complementary protection provisions. She applied for the visa [in] April 2014 and the delegate of the Minister for Immigration refused to grant the visa [in] November 2014. This is an application for review of that decision, and the relevant law is set out in Annexure A. For the reasons set out below, the Tribunal does not accept that the applicant has a well-founded fear of persecution for a Convention reason, nor 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 has accordingly affirmed the decision of the delegate to refuse to grant the applicant a Protection visa.

   CLAIMS AND EVIDENCE

2. The applicant provided to the Department her protection visa application forms and a statement. According to those documents, the relevant background and claims are as follows:

   ·     The applicant was born in [year] in Luzhou, Sichuan Province and is aged [age]. She speaks, reads and writes in Chinese and English. She was married in June 2008 in Chengdu. Her husband and child (a [gender], [name], born [date]), remain in China, as do her parents. She is in contact with her husband.

   ·     The applicant and her husband wanted a second child, a [gender].

   ·     [In] September 2013 she discovered she was pregnant. [In] November 2013 she was forcibly taken by the District Family Planning Officers to do a pregnancy screening examination at the [name] Hospital. It was discovered she was pregnant and she was forced to have an abortion. She became devastated and traumatised. She was forced to have an IUD, and worried that this might make it impossible for her to have another child.

   ·     The applicant left China legally [in] March 2014, travelling to Australia as a visitor [in] March 2014, using her passport which had been issued [in] 2010. This was not the first time she had travelled overseas; she had made the following international visits prior to travelling to Australia:

   o   [Country]: August 2011

   o   [Country]: May 2012

   o   [Country 1]: November 2011 to January 2012

   o   [Country 1]: June 2012 to December 2012

   o   [Country]: November 2012

   o   [Country]: December 2012

   o   [Country 2]: February 2013

   o   [Country]: September 2013

   The interview with the delegate, and the delegate’s decision

3. The applicant was invited to attend an interview with the delegate [in] November 2014 to discuss her claims for protection, however she did not attend. She did not provide any explanation for this to the delegate[1].

   [1] As set out in the delegate's decision record provided to the Tribunal by the applicant.

4. The delegate noted that there was no requirement to accept uncritically any and all allegations made by an applicant. The delegate noted that without the benefit of interviewing the applicant to discuss her claims and verify details of her personal circumstances, and in the absence of any detail regarding her written claims, it was  not possible to accept that her claims are credible. The delegate suggested that if the applicant genuinely feared persecution in her country, she would have attended the interview.

5. The delegate’s decision record set out a number of matters raised from the written claims that it would have intended to discuss with her during the interview, including:

   ·Why was she seeking protection in Australia;

   ·What happened to her when she was in China;

   ·Discuss her travels to other countries;

   ·Who will harm her if she returns to her country;

   ·Why would they harm her;

   ·What does she fear would happen to her she was to return to China;

   ·Why did she not provide any documents/ information to substantiate that she would be harmed on her return to China.

   The Tribunal

6. The applicant lodged an application for review to the Tribunal. She provided a copy of the delegate’s decision record, but no other documents or submissions to the Tribunal.

7. On 17 March 2016 the Tribunal wrote to the applicant at her nominated address for correspondence, advising that it had considered all the material before it relating to the application, but that 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 27 April 2016. The Tribunal notes that in the Hearing Invitation, the applicant was advised that the hearing was her opportunity to give oral evidence and present arguments. If she did not attend the hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable her to appear before it, or it may dismiss her application without further consideration of the application or the information before the Tribunal. The applicant was also invited to provide to the Tribunal any information, evidence or documents upon which she sought to rely by 20 April 2016.

8. The applicant was sent two reminders of the hearing date by text message on 19 April 2016 and 26 April 2016 to the mobile phone number she had provided to the Tribunal.

9. The applicant did not attend the hearing on 27 April 2016. The applicant did not contact the Tribunal to explain her non-attendance at the hearing, nor did she provide any further documents, evidence or submissions.

10. This matter has been determined on the evidence available to the Tribunal.

    FINDINGS AND REASONS

    Country of reference

11. According to the application form and the photocopy of the passport provided to the Department, the applicant is a Chinese citizen. The Tribunal accepts that the applicant is a national of China, and that the appropriate country of reference for the assessment of her refugee claims, and the receiving country for the purposes of her complementary protection claims, is China.

    Concerns about the applicant’s claims

12. The Tribunal notes that 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. Similarly that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.

13. Pursuant to s.5AAA of the Act it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.

14. 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).

15. In the circumstances where an applicant does not attend a hearing to which he is invited, the Tribunal also notes the decision of the Federal Court in BZADA v MIC and RRT [2013] FCA 1062, where Rangiah J held at [21]:

    As his Honour correctly found, the Tribunal was unable to reach the requisite level of satisfaction to grant the applicant a visa given his failure to attend the hearing and the Tribunal’s inability to test and examine his claims in evidence. The relevant statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the criteria for the grant of a protection visa depends not on a particular matter being established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.

16. The Tribunal has considered on the evidence before it whether there is a real chance that the applicant will be persecuted within the meaning of the Convention if she returns to China in the reasonably foreseeable future, and whether she faces a real risk of significant harm in China. She did not attend the delegate’s interview. The Tribunal notes that although the applicant lodged an application for review with the Tribunal, and provided a copy of the delegate’s decision record to the Tribunal (which referred to her failure to attend the interview), she did not provide any explanation to the Tribunal as to why she had failed to attend the interview with the delegate. Further, despite being invited to attend a hearing and being forwarded two reminders by text message, she did not attend the Tribunal hearing at which she would have had the opportunity to provide necessary details of her claims, noting that she had been advised that the Tribunal had insufficient information before it to make a favorable decision on her behalf.

17. In these circumstances, a number of relevant questions about her claims remain unanswered.

18. The Tribunal notes that although the delegate indicated in the decision record that insufficient information was provided by the applicant to support her claims, and the delegate specifically described areas where information was lacking, the applicant, while providing a copy of the decision record to the Tribunal, did not provide any responses to the delegate’s questions. The Tribunal considers that a number of those questions are of significant interest, including what exactly she fears would happen to her if she returns to China, who will harm her and why will they harm her.

19. The Tribunal was concerned that the applicant was apparently aware that she was not to have a second child (noting her reluctance to attend with the family planning official), however after becoming pregnant with her desired second child, she appears to have remained living in her home, where she could be located. The Tribunal notes that the applicant seems to have had sufficient funds to take at least 10 overseas holidays between August 2011 and December 2013 (including for periods of up to 6 months). In the circumstances, the Tribunal did not understand why she did not use her funds and resources to avoid detection in her home area when she was pregnant with her second child, for example by relocating elsewhere in China.

20. Further, the Tribunal was concerned that she did not list all of her visas/ travel on her application form; in fact she did not list any travel after the claimed forced abortion in November 2013. However, according to the stamps on her passport, she had obtained visas and/or travelled as a visitor to [Country 2] ([in] December 2013) and [Country 1] ([in] December 2013). This caused the Tribunal some concern, noting that she had listed in her application form her eight previous trips; yet she did not explain her omission to mention her international holidays after the claimed forced abortion. While the Tribunal accepts that she could have gone on holidays while traumatised, she has not explained why she chose to continue her previous pattern of going on international holidays, instead of focusing on her claimed long-term plan to escape from China in order to have a second child.

21. Further, the Tribunal notes that on both occasions after the claimed forced abortion she returned from both [Country 2] and [Country 1] to China, the country where she claims to have experienced significant trauma and harm. She has not explained whether she travelled to those countries with her husband and child, nor why she did not attempt to remain out of China on those occasions, to pursue her dream of having a second child.

22. Further, she has not explained why she delayed in leaving China until [date] March 2014, noting that her visa had been granted [in] February 2014[2].

    [2] As set out in the delegate's decision record, provided to the Tribunal by the applicant.

23. Finally, the applicant claims in her statement that because she and her husband have siblings, government policies do not allow them to have a second child. This assertion however is contradicted by her protection visa application forms, where the only relatives she lists are her parents. Despite provision being made in the document specifically for her to insert details of her siblings, she has not done so. This indicates that she does not have siblings. If this is the case, the latest DFAT report (referred to further below) indicates that, after November 2013, as a person from Sichuan province, she would be able to have a second child:

    3.45 Nation-wide family planning policies have been implemented in China since the late 1970s. China's Population and Family Planning Law came into force on 1 September 2002. The State encourages late marriage and childbearing and generally promotes one child per couple, although exceptions to the "one child" policy have been permitted in situations where: both spouses are only children; the first child has a disability; both spouses are members of ethnic minorities; or, for rural residents, the first born child is a girl. In November 2013, the Chinese government announced an adjustment to the family planning policy to allow couples to have a second child if either parent is an only child. At the time of writing, Hainan, Shandong, Heilongjiang, Fujian, Jilin, Jiangsu, Guangdong, Hubei, Gansu, Sichuan, Shanghai, Beijing, Tianjin, Anhui and Zhejiang had amended their regulations to reflect the change.

24. Further, if she and her husband did have siblings, she has not explained how their parents managed to achieve this, and the consequences for their parents, in light of the “one child policy”.

25. In the absence of further details and evidence, the Tribunal is not satisfied that the claims made by the applicant are credible, concerning her background, past harm or future harm feared. In accordance with Ministerial Direction No. 56, the Tribunal has also taken into account the country information assessments prepared by DFAT expressly for protection status determination purposes, DFAT Country Information Report China, 3 March 2015 (the DFAT report), and DFAT Thematic Report, Unregistered religious organisations and other groups in the People’s Republic of China, 3 March 2015 (the DFAT Thematic report). The Tribunal would have discussed any possibly relevant sections with the applicant at the hearing if she had attended; on the evidence before it, the Tribunal is not satisfied that the DFAT reports (or the PAM Guidelines) change its findings.

26. On the evidence before it, the Tribunal is not satisfied in relation to the applicant’s assertions about her background or her family, that she was pregnant with her second child, that she was forced to undergo an abortion, that she was forcibly inserted with an IUD, that she left China because of past harm, or in fear of any future harm or claimed inability to have a second child.  The Tribunal is not satisfied that anyone has sought to harm the applicant in the past, nor that anyone seeks to harm her in the reasonably foreseeable future, nor that she left China for reasons of persecution or harm or danger or because she wanted to have further children.

27. Other than those matters accepted above, the Tribunal rejects all the various claims made and finds that the applicant does not have a well-founded fear of Convention-related persecution for any of the reasons put forward by her.

28. 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 criteria set out in s.36(2)(a).

    Complementary protection criteria in relation to the applicant          

29. 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). As discussed above there remain many questions unanswered in relation to the applicant's claims. Insufficient detail has been provided for the Tribunal to be satisfied that the claims are credible. The Tribunal is not satisfied that the applicant has suffered harm in the past, nor is it satisfied on the evidence before it that she faces a real risk of significant harm in China if returned there.

30. On the evidence presently before it, 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 a receiving country, in this case China, there is a real risk that she will suffer significant harm for the purposes of s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

31. 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

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

    Christine Cody
    Member

    
    

    ANNEXURE A - RELEVANT LAW

33. 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.

    Refugee criterion

34. 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).

35. 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.

1. 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.

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

3. 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.

4. 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.

5. 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.

6. 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

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. ‘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. 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

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.