1503008 (Refugee)

[2016] AATA 4378

1503008 (Refugee) [2016] AATA 4378 (5 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1503008

COUNTRY OF REFERENCE:                  China

MEMBER:Linda Holub

DATE:5 September 2016

PLACE OF DECISION:  Sydney

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

Statement made on 05 September 2016 at 9:19am

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] May 2014 and the delegate refused to grant the visa [in] January 2015.

3. The applicant appeared before the Tribunal on 26 July 2016 to give evidence and present arguments. As outlined in more detail below, following a short adjournment of the hearing, the applicant did not return nor could he be found on or near Tribunal premises.  The Tribunal invited the applicant to the resumed hearing but the applicant did not respond nor did he attend.

RELEVANT LAW

Refugee criterion

1. 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.

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).

1. 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.

Complementary Protection

1. 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’).

Section 499 Ministerial Direction

1. 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

1. 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 them being removed from Australia to China, there is a real risk that they will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

2. The applicant’s written claims for protection are contained in the application forms submitted to the Department of Immigration and Border Protection [in] May 2014.  The applicant who was born on [date] in [his home village], Hebei Province, China claimed that: ^[1]

   [1] DIBP file folios 30-36.

   a.in 1998 he purchased a house in [name] Village.

   b.on [a date in] March 2007 he was advised by two staff members of the town government office that half of the area of his house would need to be demolished. They said he would be compensated with RMB [amount] per square metre immediately after the demolition. He agreed to this arrangement.

   c.at the end of March 2007 the demolition work began. It was completed two months later. He did not immediately receive compensation.  In mid-June 2007 he went to the town government office and spoke with a director by the name of [Mr A] and was told that his compensation had not yet been approved by the financial bureau and to go back and wait.  Two months later there was still no news so in August 2007 he went back to the office and saw the same person. [Mr A] was angry and told the applicant that he was being annoying and to get out. 

   d.[in] January 2008 together with his colleagues and boss from the [company] that employed him travelled to [another country] for one week (he obtained a passport in [2007]). When he returned he was looking forward to receiving his compensation. This did not occur but rather the boss continued to bully him.

   e.Another six months passed but he still did not receive compensation. Because they were becoming extremely frustrated he and his wife decided to appeal. [In] March 2008 he went to the county government and spoke with [a person] who was [a senior official] of the county. She was responsible for [a certain area]. She told him that this was a matter for the town council and he should go there to solve it. He wanted to continue to pursue the situation but two security men told him to leave.

   f.The next day he decided to go to lodge an appeal with the municipal government to. [In] March 2008 he took a quilt and food and went to the municipal government. The security men did not allow him in so he found a place outside the building and slept there at night. He brought a sign which read “[slogan]”.  A few days later an official told him the matter would be investigated.

   g.In late May 2008 he was driving to another province. His wife called him and told him that [Mr A] and four local bullies came to his house and said that because he appealed he was being criticised by the municipal government. On that day water and electricity to his home were stopped.  After that [Mr A] sent people to his house to make trouble every 3 to 5 days. [Mr A] told his wife that he would find the applicant and scrap him.

   h.His employer told him that [Mr A] had come to see him and asked the employer to dismiss the applicant. His employer responded saying the applicant had the longest service the best skills, extensive work experience and had never had an accident. However under pressure and with some degree of frustration his employer dismissed him at the end of June 2008. He was unable to return home so he had to leave for Guangzhou.  He later discovered that his boss is a local tyrant and locals and officials are afraid of him.

   i.For that reason he found an agent in Guangzhou to assist him obtain a visa to escape from China. [In] February 2009 he came to Australia.  He is afraid if he returns to China he will be persecuted and his life will be a risk.

10.  In making its decision, the Tribunal had before it the Department’s file relating to the applicant’s Protection visa application.  The Tribunal has given consideration to the Delegate’s Decision Record provided by the applicant to the Tribunal.[2]  It shows that the applicant was interviewed [in] January 2015.  The delegate “dismissed the credibility of the applicant’s claims in their entirety”.[3]

[2] AAT file, folios 9-21.

[3] AAT file, folio 12.

11.  On 2 March 2015, the applicant then applied for a merits review of that decision by the Tribunal.  The Tribunal wrote to the applicant on 23 May 2016 inviting him to attend a hearing on 27 June 2016.  Due to unforeseen circumstances the hearing was re-scheduled.

12.  The Tribunal again wrote to the applicant again on 23 June 2016 inviting him to attend a hearing on 26 July 2016.  The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.  During the hearing the Tribunal took a short adjournment.  The applicant did not return to the hearing room, nor could Tribunal staff locate the applicant on the Tribunal premises or in the surrounding vicinity.  Attempts were made to phone the applicant on the mobile phone number held by the Tribunal.  The Tribunal waited an additional thirty minutes but the applicant did not return.

13.  In case of some misunderstanding about the nature of the adjournment, the Tribunal wrote to the applicant inviting him to the resumption of the hearing on 24 August 2016.  The letter was sent to the same address that the original invitation has been sent to.  In relation to the first hearing the applicant had returned the Response to hearing invitation by hand to the Tribunal.  However, no response was received from the applicant to the invitation to the resumed hearing.  Two SMS reminders regarding the resumed hearing – one on 17 August and one on 23 August – were sent to the mobile number provided by the applicant.  The applicant did not attend the hearing nor did he make any contact with the Tribunal regarding his inability to attend.

14.  The Tribunal was satisfied the applicant was properly notified of the resumed hearing.

FINDINGS AND REASONS

Nationality

15.  On the basis of the applicant’s passport issued by the People’s Republic of China, the Tribunal finds that the applicant is a citizen of China.  There is nothing in the evidence before the Tribunal to suggest that they have a right to reside in any country other than China.

16.  The Tribunal finds that the claims should be assessed against China for the purposes of the Convention in s.36(2)(a) and 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).

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

17. 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).

18.  The applicant did not provide sufficient detail in his specific claims to satisfy the Tribunal that the events took place as he had claimed.  The Tribunal had some opportunity during the part of the hearing that did occur to explore some of the claims, however, the Tribunal had not concluded taking evidence from the applicant and much of the evidence provided by the applicant to the point of the adjournment required further clarification and elaboration.  The Tribunal has addressed these issues below.

19.  The Tribunal had a concern regarding the very lengthy delay between the time the applicant arrived in Australia [in] February 2009 and when he lodged his Protection visa application [in] May 2014.  The Tribunal explored this with the applicant and explained that courts have considered that even a three month delay in application can suggest the applicant does not have a well-founded fear of persecution. 

20.  The applicant explained the delay by saying that he when he first came to Australia he was walking on the street in Chinatown and saw a sign for a solicitor.  This person said he could prepare an application and the applicant paid him $[amount].  The Tribunal sighted a receipt dated [in] December 2009 with no name for $[amount] for cash.  The evidence presented did not satisfy the Tribunal that the applicant paid $[this amount] for the purpose of the preparation of a Protection visa application.  The applicant said he went back about one to two months later when he had not heard anything but was unable to find the solicitor.

21.  The Tribunal put it to the applicant that his explanation still indicated that he had waited some ten months after he arrived before applying. When asked why he had not applied earlier he said he did not know it was possible to apply for Protection when he first arrived in Australia.

22.  The Tribunal asked the applicant why after not being able to find the solicitor he remained illegal from the time his tourist visa expired [in] May 2009 until May 2014 when he applied for Protection.  He said gradually started to learn English and was then able to write his application himself.  The Tribunal told the applicant that it was not satisfied that this explained the five year delay in regularising his status in Australia.  The Tribunal considered that the applicant’s efforts to regularise his status did not demonstrate a well-founded fear of persecution.

23.  In the context of trying to understand the reasons for the delay in his application, the Tribunal attempted to clarify what the applicant did when he first arrived in Australia.  He gave evasive, confusing and conflicting responses.  He claimed he arrived in a tourist group and had no friends or acquaintances here.  He claimed he stayed with the group for three days and then just wandered around.  When asked where he stayed, he said he did not know.  The Tribunal put it to him it must have been a significant event to travel to Australia and leave a tour group.  After giving it some thought he said “to be honest, I don’t know where I was.”  The Tribunal asked him if he stayed in a hotel.  He responded that he went to [a tourist venue] with the group and then left.  The Tribunal again attempted to ascertain where he went, to which he responded that he wandered and wandered around and then a found a job.  The vagueness and contradictory nature of this discussion contributed to a significant concern regarding the applicant’s credibility.

24.  In relation to the applicant’s claims regarding the acquisition of his land and demolition of his house, the applicant gave evidence broadly consistent with his written claims but on questioning was unable to elaborate on details which reinforced concerns the Tribunal had regarding his applicant’s credibility.

25.  As outlined, the Tribunal did not have an opportunity to explore with the applicant why he fears he will be persecuted should he return to China and why he feels his life will be at risk.  Further, the applicant did not provide sufficient information with his claims.  Consequently, the Tribunal could not be satisfied that there a real chance or a real risk of serious or significant harm occurring to the applicant.

26.  Because the applicant did not return or attend the adjourned hearing the Tribunal was unable to explore some of the applicant’s unsubstantiated claims, including:

a.    His petitioning at various levels of government and his protest at the [named] municipal government in March 2008.

b.    The attendance of [Mr A] and four thugs at his home in May 2008, the termination of utilities to his time and the trouble caused every 3 to 5 days subsequently.

c.    His dismissal by his employer because of the pressure applied by [Mr A].

d.    Why he fears he will be persecuted and his life will be at risk.

27.  Given the Tribunal’s concerns relating to the applicant and the lack of detail provided in respect of other applicant’s claims, 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.

28.  In the light of his evidence overall which was vague and confusing the Tribunal is not satisfied the applicant has a has a well-founded fear of persecution.

CONCLUSION

29.  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).

30.  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 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.

Linda Holub
Member