1503432 (Refugee)

[2016] AATA 3818

1503432 (Refugee) [2016] AATA 3818 (3 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1503432

COUNTRY OF REFERENCE:                  China

MEMBER:Tony Caravella

DATE:3 May 2016

PLACE OF DECISION:  Perth

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

Statement made on 03 May 2016 at 2:04pm

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).

   Background and protection claims

2. The applicant who claims to be a citizen of China, applied for the visa [in] January 2014 and the delegate refused to grant the visa [in] February 2015.

3. In a written statement which accompanied her written application for a protection visa, the applicant claimed she was born in [year] in [his home town in] Chongqing City, People’s Republic of China (PRC).  She claims that after graduating from high school she worked with [a company] which broke up in [year], resulting in her losing her job.  She married and had a [child] but then divorced from her husband in 2009.  She claims she raises her [child] on her own, as her ex-husband does not pay child support.

4. She declares her income was not enough to support her [child] so in June 2013 a classmate introduced her to a woman called [Ms A] who talked to her about network sales. She claims after talking to [Ms A] for three hours, she realised this might involve multilevel marketing (MLM) which she knew to be illegal.

5. The applicant claims that the woman called [Ms A] would not let her leave her apartment and they took away the applicant’s phone and kept her detained for a number of days. She claims that during that time people came and taught her.  She declares she had no chance to escape so on the fifth day she promised to join the organisation.  She said she also had to pay an upfront franchise fee and those associated with the MLM took [an amount] Yuan from her bank account after forcing her to reveal her password.

6. The applicant declares she was eventually able to have her telephone given back and in September 2013 she got a chance to call the police.  She declares that half an hour after she called the police, someone knocked on her door, and two police came in and took her to the police station to investigate the matter.  She declares that when she arrived at the police station she saw a MLM “manager “there who accused her of taking money from the company.  She claims she was then beaten and lost consciousness waking up with her [limbs] “dislocated”, and her “legs couldn’t lift”.  She claimed she was detained for 24 hours and then released but also subsequently threatened by the “manager”.

7. She claims her family knew of her situation and wanted her to escape.  She claimed she had to escape from China because if she stayed there she would make trouble for her family and [child].  She claims with the help of the family, she obtained a passport and visa and came to Australia.

8. The applicant claims that since coming to Australia, her mother told her the deputy mayor often sent people to harass her family and they live in fear.  She claims her mother asked her not to return to China. 

   The delegate’s decision

9. The delegate’s decision record summarises the applicant’s claims for protection, and concludes that the applicant does not meet the criteria either under s.36(2)(a) of s.36(2)(aa) of the Act.  The delegate found, amongst other things, that the applicant was issued with a PRC passport [in] 2013 to replace her old passport.  The delegate found the applicant absconded from a tour group before boarding a flight to Perth and lodging the protection visa application. The delegate found the applicant’s answers to questions put to her regarding the timing of her joining and departing the MLM company to be internally inconsistent. The delegate’s decision record refers to the delegate putting to the applicant that in her PV application she claimed that after she left the MLM company she had called the police and had been taken to the police station and beaten. However, in her PV interview, she claimed that she was visited at home by thugs from the MLM company. The delegate considered the applicant’s response to this inconsistency did not satisfactorily answer the delegate’s concerns. The delegate also found other inconsistencies, including having stated that she was beaten but then subsequently claiming that she was not physically harmed.  The delegate also found the applicant did not provide responses to questions with a level of detail or spontaneity that may have satisfied the delegate that the applicant was recalling evidence within her personal experience.  The delegate also found that when the applicant was asked to clarify the major inconsistencies in her claims, she became vague and evasive and had difficulty answering questions as to why her oral testimony deviated from the content of her written claims.

10. The delegate concluded that having regard to the applicant’s immigration history, and the inconsistencies in the claims, it is more probable that the applicant applied for a protection visa in order to prolong her stay in Australia rather than for the reason of having a well founded fear of returning to the PRC.  The delegate concluded that the applicant was not a witness of truth and the applicant’s claims were not accepted as genuine or credible.

    Application for review

11. On 10 March 2015, the applicant applied to the Refugee Review Tribunal for a review of the delegate’s decision.  A copy of the delegate’s decision record accompanied the application for review. 

12. The Tribunals Amalgamation Act (Cth) 2015 took effect on 1 July 2015.  Transitional provisions of that Act had the effect that an application for review to the Refugee Review Tribunal (now abolished) is taken to be an application to the Administrative Appeals Tribunal. 

13. No further information, submission, or evidence has been provided to this Tribunal in support of the applicant’s claims as at the time of this decision.

14. On 23 February 2016, having considered the material before it, the Tribunal considered it was unable to make a favourable decision on this information alone.  Accordingly, on the same day, the Tribunal sent a written invitation to the applicant to appear before it to give evidence and present arguments relating to the issues arising in her case.  The hearing invitation stated the hearing was scheduled for 22 April 2016 at 12.30pm.  Detail as to the place where the hearing was to occur was included in the hearing invitation, as was information stating that if the applicant did not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear, or it may dismiss the application.

15. On 21 April 2016, the Tribunal received an email from a [Ms B] advising the applicant “is uncomfortable to attend the hearing tomorrow” a copy of a medical certificate was included stating the applicant “has a medical condition and will be unfit for work from 21/04/2016 to 23/04/2016”.

16. In response to the above request and medical certificate, the Tribunal emailed the applicant on 21 April 2016 informing her that the presiding member had considered the request and was not satisfied that she was unable to participate in the hearing even if she was unfit for work.  The Tribunal therefore requested the applicant provide medical evidence to satisfy it that she was unfit to participate in the hearing. 

17. On 22 April 2016 further email was received from [Ms B], together with a further medical certificate.  That medical certificate stated the applicant was currently suffering from a [specified medical condition] and states she would not be able to [details deleted]. The letter from the doctor also states she “is unable to attend her meeting with the immigration Department today.”

18. In light of this further medical evidence, the Tribunal agreed to postpone the hearing, and on 22 April 2016, it issued a further hearing invitation to the applicant stating that a rescheduled hearing was now listed for 3 May 2016 and 9:30 AM.  The hearing invitation repeated information including the address of where the hearing was to occur, and stated that if the applicant was not able to attend the hearing she should advise the Tribunal as soon as possible.  The letter repeated information that had been previously provided to the applicant, including that if she did not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or unable to appear before the Tribunal.  The hearing invitation also stated the Tribunal may alternatively dismiss the application without any further consideration of the application or the information before the Tribunal.

19. The applicant failed to appear before the Tribunal at the rescheduled hearing.  There has been no further request for a postponement or any explanation as to why the applicant failed to appear at the hearing.

20. Sections 426A of the Act provides that if an applicant has been invited under s. 425 to attend a hearing and does not appear on the day on which, or at the time and place at which, she or he is scheduled to appear, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.   Alternatively the Tribunal may dismiss the application without any further consideration of the application of information before the Tribunal.

21. The power to make a decision on the review or to dismiss proceedings for non-appearance arises if the hearing invitation complied with the relevant statutory requirements. The Tribunal has checked that the invitation was given to the applicant by one of the methods in s.441A and that the prescribed period of notice of the relevant day, time and place of the scheduled hearing has been given.  The Tribunal finds upon reviewing the hearing invitations, and in particular the most recent one, that it complies with these requirements.  The Tribunal also finds that a warning as to the effect of s.426A(1A) also appears in the invitation to hearing.  Having regard to the statutory provisions, and to the detail on the hearing invitation, the Tribunal is satisfied that it complies with the statutory requirements and the power to proceed under s.426A is engaged.

22. The Tribunal considered the circumstances in this case and notes that the applicant provided a medical certificate on 22 April 2016 indicating that the applicant was suffering a [specified medical condition] and that her doctor had commenced here on stronger [medication].  The Tribunal notes the medical certificate state the applicant [details deleted].  The Tribunal therefore postponed the hearing until 3 April 2016.  The applicant has not provided any evidence that she continues to be unwell or that she is unable to participate in a hearing for which she has been given an invitation in accordance with the statutory requirements.  The Tribunal considers the applicant has been on notice of the delegate’s concerns and indeed disbeliefs over her claims since the date of the delegate’s decision.  She has also been on notice since 23 February 2016, that is the date of the Tribunal’s first hearing invitation, of the Tribunal’s assessment of being unable to make a favourable decision based on the information before it.  Having regard to all of the evidence and circumstances in this case, the Tribunal finds there is no reasonable ground on which to further postpone the review in this case.  Having regard to all of the evidence and circumstances in this case, the Tribunal finds this is a case where it should proceed to make a decision on the review without taking any further action to allow or enable the applicant to appear before it

    RELEVANT LAW

23. 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.

    Refugee criterion

24. 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).

25. 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.

26. 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.

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

28. 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.

29. 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.

30. 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.

31. 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.

32. 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.

33. 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

34. 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’).

35. ‘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.

36. 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

37. 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

38. The issue in this case is whether the applicant satisfies the requirements prescribed in s.36(2)(a) or s.36(2)(aa) of the Act for the grant of a protection visa. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of reference and third country protection

39. Having regard to the relevant documentary evidence held on the Department’s file which includes a copy of a passport issued in the applicant’s name by the PRC, the Tribunal finds the applicant is a national of the PRC.  It therefore finds the PRC is the country of reference for the purposes of s.36(2)(a) of the Act, and the ‘receiving country’ for the purposes of s.36(2)(aa) of the Act. 

1. There is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside, whether permanently or temporarily, in any other country than PRC.  The applicant is thereby not prevented from qualifying for protection in Australia by the operation of s.36(3) of the Act.

   Credibility issues

2. The Tribunal accepts 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. It remains for the applicant to satisfy the Tribunal that he or she satisfies all of the required statutory elements. 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 Tribunal 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.)

3. In determining whether an applicant is entitled to protection in Australia, the Tribunal must first make findings of fact on the applicant’s claims.  This may involve an assessment of the applicant’s credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.  

4. The Tribunal is not required to accept uncritically any or all allegations made by an applicant.  In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established.  Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547). On the other hand, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true (See MIMA v Rajalingam (1999) 93 FCR 220).

5. As the applicant has failed to appear before the Tribunal, the Tribunal has been unable to assess whether she is a credible witness or a witness of truth.  Furthermore, the Tribunal has several concerns about the reliability of the applicant’s evidence as submitted to the delegate.  It finds the applicant’s evidence is that she was briefed on the MLM by [Ms A] in June 2013, but claims only to have contacted the police in September 2013 despite not being detained for three months.  The applicant, as the delegate correctly identified, failed to account or explain for this three-month gap.  The Tribunal also finds the applicant’s claims that she was mistreated by police, or thugs, is vague and inconsistent, once again as correctly identified by the delegate.  These inconsistencies, in the absence of any plausible or credible explanation from the applicant, lead the Tribunal to the view that the applicant’s claims are not reliable or credible.  

   Assessment of claims

6. The applicant’s claims for protection revolve around her claimed involvement in some vaguely described form of multilevel marketing (MLM) activity which she claims to be illegal in China.  She described in her written application for protection, and to the delegate, how she was introduced to a woman called [Ms A] would not let her leave her apartment until she agreed to somehow become involved with the MLM activities.  She claims she had to pay money, was kept against her will, but was subsequently released and was able to report to the police who she claims subsequently mistreated her.  The Tribunal carefully considered all of her written claims, and the evidence she presented to the delegate and finds it is vague and generalised and without the necessary level of detail to enable the Tribunal to be satisfied that the events and circumstances referred to occurred or exist, respectively, as claimed.  Based on the evidence before the Tribunal, and having regard to the inconsistencies identified by the delegate, and which have also been identified by the Tribunal, it is not satisfied that she was forced to become involved in illegal MLM activities in PRC, or forced to pay up front franchise fees, or detained against her will.  Nor does is accept, based on the vague an ambiguous evidence before it, that the applicant was detained and mistreated by the police, or in the alternative and depending on which version of the facts one considers, mistreated by thugs.  Nor does the Tribunal accept that there is a “manager” or anyone else who has threatened the applicant either through the police, or independently for that matter, or who represents a real chance of serious harm to the applicant is she returns to PRC now or in the reasonably foreseeable future. 

7. On the evidence before the Tribunal, it does not accept that her family wanted her to escape as it does not accept she faced any risk of serious harm if she remained in PRC.  The Tribunal also considered the applicant’s claim that she has a child and that he ex-husband does not pay child support.  While the Tribunal cannot positively dismiss such a claim based on the evidence before it, it rejects the proposition that failure by her ex-husband to pay child support would give rise to a real chance of serious harm for the applicant or for her child now or in the reasonably foreseeable future.  Having regard to all of the evidence, and to the foregoing findings, the Tribunal does not accept that if she had remained in PRC she would have made trouble for her family and for her [child].  Nor, based on the evidence before it, does the Tribunal accept the since coming to Australia the deputy mayor often sent people to harass her family or that her family live in fear.   

8. Having considered all of the evidence before it, and having considered all of the applicant’s claims, for the reasons set out in the preceding paragraphs, the Tribunal finds the applicant does not face a real chance of serious harm of a kind contemplated in s.91R of the Act is she returns to PRC now or in the reasonably foreseeable future.  It is therefore not necessary for the Tribunal to consider questions of state protection or relocation in a case such as this.  The applicant therefore does not have a well founded fear of persecution and fails to meet s.36(2)(a) of the Act. 

9. As the Tribunal has found the applicant is not a person in respect of whom Australia has protection obligations under the 1951 Refugees Convention and in accordance with s.36(2)(a) of the Act, she may nonetheless meet the criterion for a Protection visa in subsection 36(2)(aa) of the Migration Act. That subsection provides that the Minister, or this Tribunal upon review, must be satisfied that Australia has protection obligations to a noncitizen in Australia because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, PRC in this case, there is a real risk that the non-citizen (the applicant) will suffer ‘significant harm’.

10. Subsection 36(2A) of the Migration Act defines significant harm as:

    (a) the non-citizen will be arbitrarily deprived of his or her life; or
    (b) the death penalty will be carried out on the non-citizen; or
    (c) the non-citizen will be subjected to torture; or
    (d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
    (e) the non-citizen will be subjected to degrading treatment or punishment.

11. Subsection 36(2)(aa) of the Act provides that the relevant risk threshold in assessing complementary protection is that there are ‘substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant’s] removal, there is a real risk that [the applicant] will suffer significant harm if returned to the receiving country.’ In MIAC v SZQRB [2013] FCAFC 33 (20 March 2013), Lander and Gordon JJ, stated (in part): In our opinion, the [real risk] test is as for s.36(2)(a) [of the Act] … is there a real chance that SZQRB will suffer significant harm… were he to return to [the receiving country]. [246]

12. The applicant has made no additional or separate credible claims under the complementary protection regime or the law.  The Tribunal considered the applicant’s claims as set out above in the light of the complementary protection provisions in s.36(2)(aa) and in light of the the definitional provision in s.35(2A) of the Act.  For the same reasons as set out above, the Tribunal rejects the applicant’s claims in the context of the complementary protection provisions of the Act.  Having regard to all of the evidence, and to the Tribunal’s assessment of the applicant’s claims, it is not satisfied that as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, PRC in this case, there is a real risk that she will suffer ‘significant harm’.  She therefore fails to meet s.36(2)(aa) of the Act.

13. 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).

14. 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).

15. 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

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

    Tony Caravella
    Member