1500243 (Refugee)

[2016] AATA 4880

1500243 (Refugee) [2016] AATA 4880 (27 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1500243

COUNTRY OF REFERENCE:                  China

MEMBER:Christine Cody

DATE:27 April 2016

PLACE OF DECISION:  Sydney

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

Statement made on 27 April 2016 at 1:55pm

CATCHWORDS
Refugee – Protection visa – China – Federal Court remittal – Applicant failed to respond to Tribunal’s hearing invitation – Social discrimination – Demolition of his house – Threats made to wife – Credibility – No imminent danger – Delay in leaving China – No real risk of harm – Delay in applying for protection

LEGISLATION
Migration Act 1958, ss 5AAA, 36, 65, 424A
Migration Regulations 1994 Schedule 2

CASES
BZADA v MIC and RRT [2013] FCA
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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 he is a refugee or entitled to protection under Australia’s complementary protection provisions. He applied for the visa on [date] March 2014 and the delegate of the Minister for Immigration refused to grant the visa on [date] December 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 he 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 RELATING TO THE APPLICANT

2. The applicant provided to the Department his 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 Haian, Jiangsu Province and is [age]. He speaks, reads and writes in Chinese. He was married on [date] September 1999 in Haian. His wife and child (a daughter, born in [year]) remain in China, as do his parents.

   ·     He had 9 years of education until [year]. Prior to coming to Australia, he was [an occupation], having worked for three years in a [workplace] (1994-1997) and he was then self-employed from 1997 until he came to Australia in March 2013. He lived at the same address in China in his village, from 2004 until he travelled to Australia.

   ·     He left China legally, travelling to Australia as a visitor on [date] December 2013, using his passport which had been issued on [date] 2013.

   ·     His visitor visa was issued on [date] November 2013.

   ·     He is not in contact with his family members.

   ·     The applicant was forced to leave his country because his house was forcibly removed and when he objected to this, he and his family received unfair treatment and persecution. He knew a friend who could do him a favour and apply for a visa to Australia. At the time he felt the imminent danger so he applied for the visa to Australia. He arrived in Australia on [date] December 2013, escaping from the danger. Since his arrival in Australia, threats were made to his wife that if he returned he would be harmed. He had no choice but to stay in Australia. He met someone from his hometown who told him he could apply for protection, which he did. He asked a student to assist him in the translation.

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

3. The applicant attended an interview with the delegate: the recording is in the Departmental file. Claims and evidence made at interview are referred to, where relevant, below. The delegate did not accept that the applicant’s claims for protection were credible.

   The Tribunal

4. The applicant lodged an application for review to the Tribunal. He did not provide any further documents or submissions to the Tribunal.

5. On 24 March 2016 the Tribunal wrote to the applicant 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 12 April 2016. The Tribunal notes that in the Hearing Invitation, the applicant was advised that the hearing was his opportunity to give oral evidence and present arguments. If he did not attend the hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear before it, or it may dismiss the 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 he sought to rely by 5 April 2016. The applicant did not provide any evidence or information to the Tribunal, nor did he attend the hearing on 12 April 2016. The applicant did not contact the Tribunal to explain his non-attendance at the hearing, nor did he provide any further documents, evidence or submissions.

6. On 13 April 2016 the Tribunal wrote to the applicant advising that it had postponed the hearing until 26 April 2016. It also issued an invitation to attend an interview on 26 April 2016, at which interview he would have an opportunity to comment on or respond to information provided to him pursuant to section 424A of the Act by way of letter dated 13 April 2016. The applicant was reminded that if he did not attend the hearing, a decision may be made on his application without taking any further action to allow or enable him to appear before the Tribunal. The applicant did not attend the interview (scheduled for 9 AM) nor the hearing (scheduled for 9:30 AM). He did not contact the Tribunal to explain his non-attendance at the hearing or interview, nor did he provide any further documents, evidence or submissions.

7. The applicant had provided to the Tribunal a telephone number, and reminders were sent to the applicant before the hearings and interview by way of text. The delivery of these messages failed. The applicant did not provide the Tribunal an updated contact telephone number. The Tribunal notes that both Hearing Invitations, and the Invitation to attend an Interview to comment on or respond to information pursuant to section 424A of the Act, were sent to the address for correspondence notified by the applicant on his Application for Review form. The applicant has failed to respond to the Tribunal’s numerous invitations. This matter has been determined on the evidence available to the Tribunal.

   FINDINGS AND REASONS

   Country of reference

8. According to the application form and the photocopy of the passport identification page, 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 his refugee claims, and the receiving country for the purposes of his complementary protection claims, is China.

   Concerns about the applicant’s claims

9. The applicant claims to fear harm if he returns to China. 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.

10. 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.

11. 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).

12. 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.

13. 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 he returns to China in the reasonably foreseeable future, and whether he faces a real risk of significant harm in China. He did not attend either of the two Tribunal hearings at which he might have had the opportunity to provide necessary details of his claims, noting that he had been advised that the Tribunal had insufficient information before it to make a favorable decision on his behalf. Nor did he attend the Interview to comment on or respond to Information pursuant to section 424A of the Act.

14. In these circumstances, a number of relevant questions about his claims remain unanswered.

    Information about problems in China

15. As set out the delegate’s decision record, he gave evidence to the delegate that he received no notice about the intended demolition of his house. He then stated that he did receive some notice. He also said he was not able to remember the date that his house was demolished, except that it occurred two years ago in 2012. The Tribunal’s concerns about this information were put to the applicant pursuant to s.424A of the Act, however he did not provide any comment on or respond about the conflicting evidence he gave to the delegate about whether or not he received notice about the intended demolition of his house. Nor did he explain why he could not recall the date that his house was demolished, in light of his claims that he lodged petitions with the authorities about the demolition of his house. The Tribunal considers that this undermines his claims.

    Information about problems in China

16. As set out the delegate’s decision record, he gave evidence to the delegate that he was beaten on one occasion, he was threatened with death by an individual in a public place on another occasion, and he received physical threats from a gang and thugs. He did not remember the date that he was beaten. Further, in accordance with the tape recording of the interview, he told the delegate at interview that he did not know that this information would be helpful to support his claim, and he didn’t tell his story in detail at the time of first lodging his application.

17. As put to the applicant pursuant to s.424AA of the Act, his claims of past harm at interview were inconsistent with the claims in his statement (namely that he had received two threatening phone calls, and that the gate of his parents’ house was smashed). The applicant did not provide any comment on or respond to the inconsistencies concerning past harm suffered as a result of his claimed conflict with the authorities due to his objections to the demolition of his house/ the taking of his land. Nor did he provide any comment on or respond to the Tribunal’s concern that if he had been beaten, he would have mentioned this in his statement, and that he would have remembered (at least an approximate) date that he was beaten, when asked by the delegate. The Tribunal considers that this undermines his claims.

    Information about the applicant’s situation in China

18. According to Departmental records, when the applicant applied for a visitor visa to come to Australia he claimed (and provided documentation to support these claims) that he lived in Nanjing, his wife [and] his child was [name deleted] born [date], and he had been [another occupation] for the last three years and nine months. However, as put to the applicant pursuant to s.424A of the Act, this was inconsistent with his claims in his protection visa application that he resided in Libao Town, Jiangsu Province, his wife was [of a different name], his child was [of a different name] born [on a different date], and he had worked as a self-employed [occupation] for the last 16 years. The applicant did not provide any comment on or respond to this inconsistent information given to the Australian authorities concerning his background and life in China. The Tribunal considers that this undermines his claims.

    Information about delay in leaving China

19. According to Departmental records, the applicant’s visitor visa was granted on [date] November 2013 and he arrived in Australia on [date] December 2013. As put to the applicant pursuant to s.424A of the Act, the records indicate that he delayed in leaving China for about five weeks after his visitor visa was granted, which is inconsistent with the claim made in his statement that he was forced to leave China due to unfair treatment and persecution; because his house was forcibly removed; at the time he felt the imminent danger so he applied for the visa to Australia, to where he travelled in order to escape from the danger. The applicant did not provide any comment on or respond to this information. The Tribunal considers that this undermines his claims.

    Information about the compensation money

20. As set out the delegate’s decision record, the applicant gave evidence to the delegate that his family had taken the compensation money offered for the house before he left for Australia in December 2013, and part of the money was used for his travel. He then gave different evidence later, stating that his wife had accepted the compensation money in February 2014 (namely after the applicant had arrived in Australia). This information was put to the applicant pursuant to s.424A of the Act, however he did not provide any comment on or respond to this conflicting evidence about when the compensation money was received and how he funded his trip to Australia. The Tribunal considers that this undermines his claims.

    Information about his financial situation

21. According to Departmental records, when the applicant applied for a visitor visa to come to Australia, he had [amount] RMB in his bank account. This however was inconsistent with his explanation to the delegate at interview that he delayed coming to Australia because he had to wait for money. This information was put to the applicant pursuant to s.424A of the Act, however he did not provide any comment on or respond to this information. The Tribunal considers that this undermines his claims.

22. 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(s) if he had attended; on the evidence before it, the Tribunal is not satisfied that the DFAT report (or the PAM Guidelines) change its findings below.

23. On the evidence before it, the Tribunal is not satisfied in relation to the applicant’s assertions about his background (details of his wife, child/children or occupations), that his house was demolished, land taken, that he made petitions or took any other action against the government or any authorities, that he received compensation money, that he was threatened, beaten, harmed, that his parents’ gate was smashed, that anyone has shown any adverse interest in him in China or since he left China, that anyone seeks to harm him, nor that he left China for reasons of persecution or harm or danger.

24. In the absence of further details and evidence, the Tribunal is not satisfied that the claims made by the applicant are credible concerning his background, past harm or future harm feared, and other than those matters accepted above, the Tribunal rejects all the various claims made and finds that he does not have a well-founded fear of Convention-related persecution for any of the reasons put forward by him.

25. 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          

26. 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 he faces a real risk of significant harm in China if returned there.

27. 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 he 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).

28. 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

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

    Christine Cody
    Member

    
    

    ANNEXURE A - RELEVANT LAW

30. 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

1. 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).

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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

9. 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’).

10. ‘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

11. 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.