1503097 (Refugee)

[2016] AATA 4487

1503097 (Refugee) [2016] AATA 4487 (27 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1503097

COUNTRY OF REFERENCE:                  China

MEMBER:Irene O'Connell

DATE:27 September 2016

PLACE OF DECISION:  Sydney

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

Statement made on 27 September 2016 at 11:33am

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

INTRODUCTION

1. This is a review of a second application for a protection visa. The second application was validly lodged [in] November 2013 in accordance with the Full Federal Court decision SZGIZ v MIAC (2013) 212 FCR 235. The delegate of the Minister for Immigration refused the grant of this application under s.65 of the Migration Act 1958 (the Act) [in] February 2015.

2. The applicant, who is a citizen of China, first applied for a protection visa [in] December 2010 after arriving in Australia on a [temporary] visa [in] October 2010.  

3. A delegate of the Minister for Immigration refused to grant the applicant a Protection visa [in] April 2011 and the applicant appealed this decision to the Refugee Review Tribunal. The Tribunal affirmed the decision of the delegate on 28 July 2011.   

4. The applicant sought judicial review of the Tribunal’s decision [in] August 2011. The decision of the Tribunal was upheld by the Federal Magistrates Court [in] April 2012. The applicant’s further application to the Full Federal Court was dismissed [in] August 2012. The applicant then lodged an application to the High Court which was dismissed [in] December 2012.

5. As the applicant has previously been refused a protection visa on the basis of the refugee criteria this review is confined to a consideration of the applicant’s claims in relation to the complementary protection criteria set out in s.36(2)(aa). This approach accords with the Federal Court in AMA15 v MIBP [2015] FCA 1424.

   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 that is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criteria (s.36(2)(a)) or on other ‘complementary protection’ grounds (s36(2)(aa)), or is a member of the same family unit as such a person and that person holds a protection visa of the same class (s36(2)(c)). The complementary protection criteria set out in s.36(2)(aa) came into effect on 24 March 2012.

7. Ordinarily Section 48A imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused.

8. After the introduction of complementary protection criteria the Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 held at [38] that the operation of s.48A, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criteria for the grant of a protection visa. A protection visa application determined prior to the introduction of the complementary protection criterion did not prevent the making of a further protection visa application on the basis of complementary protection claims.

   Complementary protection criterion

9. Under s.36(2)(aa), a person may qualify 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.

11. 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.

    CLAIMS AND EVIDENCE 

12. In her (second) protection visa application the applicant lists her date of birth as [date] and place of residence Fuqing in Fujian Province. She lists her religion as Christian and her occupation as [occupation 1]. She lists [number] years of education.

13. She claims that she will be harmed by neighbours on her return to China as her family are in dispute with them over [land]. She also claims to fear harm from money lenders because she has not repaid money which she borrowed from them. She believes that these persons have connections to the Chinese authorities and the authorities will also mistreat her.

14. The applicant was interviewed by the delegate. As set out in the delegate’s decision record the applicant indicated to the delegate that, in addition to the claims set out in her second application, she stood by her claims made in her first application, that is, that she faced harm from the Chinese authorities by reason of her religion. The delegate was not satisfied as to the genuineness of any of the applicant’s claims.

15. The applicant did not make written submission to the Tribunal but provided a copy of the decision record of the delegate.

16. She appeared before the Tribunal at a hearing on 11 August 2016 conducted with the assistance of a Mandarin interpreter. At the hearing the applicant was not forthcoming. She provided only brief responses to questions asked, and did not elaborate in a meaningful way on her claims.

17. After explaining to the applicant that the review of her application was confined to the complementary protection criteria, the applicant was asked what significant harm she feared on returning to China. The applicant responded that she was worried she would be arrested and kept inside.

18. When asked to elaborate, the applicant stated that she had attended an underground church in China and was detained when the police raided the gathering. When further details were sought, the applicant stated that she could not remember, as it all happened a long time ago before she came to Australia, so she could not elaborate further.

19. When asked why she thought that she would be arrested on her return to China in the future given that the claimed events occurred some time ago, the applicant stated that her parents are still harassed.

20. The Tribunal asked the applicant about the church which she claimed to have participated in and the activities she was engaged in. The applicant stated that “they sang songs, read poems and danced and celebrated”. When it was put to the applicant that this description did not really identify activities of a church but could be activities of a party or wedding, the applicant responded that they sang songs about Jesus and that, once in a while, there were baptisms in which people were splashed with water.

21. When asked why she attended church the applicant stated that her parents had and she had followed them. When asked about her beliefs, the applicant stated that she believed God will bring us happiness and peace and assist us.  When asked about church attendance in Australia she stated that she attends a church in [Suburb 1].  

22. The applicant was asked whether there were other reasons she feared harm on return to China. The applicant stated that she had a baby and as she is not married she would face a fine on her return to China.  The applicant was not forthcoming about her financial circumstances or relationship with the child’s father. She stated that she relies on Centrelink payments for support. She stated that if she returned to China she would not be able to pay a fine that she thought would be imposed on her by reason of the fact that she had a child and was not married.  

    FINDINGS AND REASONS

23. On the basis of the applicant’s passport the Tribunal finds that the applicant is a citizen of China and China is the receiving country.

24. The applicant claims to fear harm on return to China for several different reasons. These are that; the authorities of China may arrest her because of her prior involvement in an underground Church; persons from whom she has borrowed money but failed to repay the loan may seek to harm her and; neighbours with whom her family have a land dispute may seek to harm her. In addition, she has had a baby while in Australia and believes she will be subject to a financial penalty on her return to China, which she claims to be unable to afford.

25. With respect to her claim to fear harm because of her involvement in an underground church, the applicant did not provide basic or meaningful detail about her claimed involvement in a Christian church, underground or otherwise, in the past, or currently. Her responses, at the hearing, about her religious activities and the church she claimed to have had involvement with, were of such a level of generality and vagueness that the Tribunal does not accept that the applicant has had involvement in a religion either in China or in Australia in a manner that would give rise to a risk that the Chinese authorities would seek to detain her on this basis.

26. At the hearing, when asked about other grounds for which she feared harm on return to China, the applicant did not refer to her claim, made at the primary level, that neighbours may seek to harm her by reason of a land dispute. Nor did the applicant make any reference to concerns about harm from persons to whom she claims to owe money. As the applicant did not raise these claims at the hearing before the Tribunal, the Tribunal does not accept that there exists a real risk of significant harm to the applicant from either neighbours or money lenders on her return to China. The Tribunal considers that, if a real risk did exist, the applicant would have raised these claims at the hearing, the very forum for the applicant to make out her case to the Tribunal.  

27. The Tribunal notes, and accepts, that the applicant has given birth to a child in Australia by an Australian citizen.  The Tribunal does not accept the applicant’s claim that she would face financial hardship on return to China, as she would be required to pay a fine with respect to that child, which she cannot afford. The applicant merely asserted this at the hearing but did not provide any detail about the monetary amount which she believes she would be required to pay, or the basis on which she believed she would be required to pay a fine. She was vague and evasive when asked about her financial circumstances but merely asserted she could not afford any fine that might be imposed on her. As such, the Tribunal is not satisfied that the applicant faces financial hardship, amounting to significant harm, if she returned to China with her child.   

28. For all the reasons set out above, the Tribunal does not accept 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.

29. The Tribunal is not satisfied that the applicant is a person with respect to whom Australia has protection obligations under s.36(2)(aa).

    DECISION

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

    Irene O'Connell
    Deputy Division Head