1510154 (Refugee)

[2016] AATA 4744

1510154 (Refugee) [2016] AATA 4744 (23 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1510154

COUNTRY OF REFERENCE:                  China

MEMBER:Antoinette Younes

DATE:23 November 2016

PLACE OF DECISION:  Sydney

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

Statement made on 23 November 2016 at 3:26pm

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] March 2014 and the delegate refused to grant the visa [in] July 2015.

3. The applicant was represented in relation to the review by his registered migration agent.

   RELEVANT LAW

4. 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.

5. 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).

6. 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’).

7. 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.

   CLAIMS AND EVIDENCE

8. In the application for a protection visa, the applicant claimed that:

   a.His father left China in December 2013 and his mother left [Country 1] in January 2014. He came to Australia in February 2014 to see his mother.

   b.He fears returning to China because his parents have been involved in “economic crimes”.  They borrowed money from banks and local [criminal] loan companies. The local banks and the local loan companies are working together.  His parents and close family relatives were intimidated when they were in China. He might be killed if he were to return to China.

   c.The [criminal community] is very strong in his local area. The local government and the [criminals] work together and he fears that his family including himself would be harmed in case of their return to China.

   d.His mother discovered on the Internet that there is a court case listed [in] March 2014 at 9am and court documents would be provided [in] March 2014 on their receipt.

9. In a translated statement provided in support of the visa application, the applicant reiterated the above claims and noted that his parents were involved in a case relating to an economic argument in December 2013 and his family “suffered the life threatened”.  He referred to his father leaving China to [another country] in December 2013 and his mother coming to [Australia] in January 2014 as well as his [siblings] who also came to Australia.  He stated that the relationship between his parents is problematic and that his [relatives] in China have been threatened by the local [criminals] who said that they would try to find them.

10. In support of the application for review, the applicant provided a copy of the delegate’s decision record in which it is noted that he applicant was interviewed [in] November 2014 and that his mother, [Ms A], had requested to speak on his behalf. [Ms A] confirmed that she frequently travelled to [Country 1] and also visited [other countries]. She also confirmed that her [other] children were born in [Country 1] and are citizens of [Country 1].  [Ms A] stated that she initially brought the applicant to Australia for tourism purposes. When asked why the applicant was seeking a protection in Australia, she stated that they had a life threatening issue in China as well as family and social issues. She indicated that her husband was chosen to undertake a [project] by government officials, the bank and other small shareholders in China. She stated that the project started in 2012 and without government consent, later changed to a [different] project but her husband was unhappy about the change, although he continued to work with the project.  [Ms A] stated that in 2012, the new Chinese government initiated strict controls on [these] [projects]. She said that she and her husband no longer communicated and that she only knows a little bit about the matter.

    HEARING INVITATIONS

11. On 5 October 2016, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but 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 scheduled at 10.30am on 16 November 2016. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on the case without further notice.  The Tribunal advised the applicant that the application may also be dismissed. On 10 October 2016, the applicant’s representative advised the Tribunal that the applicant will be attending the scheduled hearing on 16 November 2016. At about 9:30am of the 16 November 2016, the applicant’s mother contacted the Tribunal to advise that the applicant is sick and he would not be attending the hearing. She requested an adjournment of the hearing. At about 10:30pm of 16 November 2016, the Tribunal received a medical certificate in support of the request for the adjournment. The medical certificate indicated that the applicant would be “unfit to continue his usual occupation” from 16 November 2016 until 18 November 2016.

12. On 17 November 2016, the Tribunal wrote to the applicant advising, amongst other things, that “Although the medical certificate provided on 17 November 2016 does not specify the nature of your illness and does not refer to your inability to attend a hearing, the Tribunal has decided to give you the benefit of the doubt and to reschedule the hearing. Please note that any further requests for adjournment on the basis of illness, needs to be supported by medical evidence explaining the reasons for your inability to attend the hearing.”  The Tribunal invited the applicant to attend a hearing listed at 10am on 22 November 2016. On 18 November 2016, the applicant’s representative advised the Tribunal that the applicant would be attending the hearing scheduled on 22 November 2016. However, at about 9am on 22 November 2016, the applicant’s mother contacted the Tribunal to indicate that her son would not be attending the scheduled hearing and when asked for the reasons, she stated that her son does not wish to come to the hearing. At about 9:20am of 22 November 2016, the applicant’s representative contacted the Tribunal to confirm the applicant’s non-attendance at the scheduled hearing. The representative referred to an alleged advice that the applicant had sought advice from other representatives about judicial appeal of the Tribunal’s decision. The Tribunal has not used the representative’s comments relating to any such advice in an adverse manner to the applicant.

13. In these circumstances, the Tribunal has decided to make its decision on the review without taking any further action.

    FINDINGS & REASONS

14. On the basis of the available information, the Tribunal finds that the applicant is a national of China. The applicant made no claim to be a national of any other country. The Tribunal finds that the claims should be assessed against China for the purpose of s.36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa).

15. Whilst the applicant has provided some details about his claims, there are other relevant details which the applicant has not provided, for example, the applicant refers to his parents being involved in “economic crimes…. Economic argument“ but there are other significant details about the claim which the applicant has not provided.  For example, it is unclear what is meant by the claim of economic crimes, when and how those claimed crimes occurred, who was involved in those claimed crimes. The applicant has claimed that his parents and close relatives had been intimidated in China but he provides no details about how and when that occurred. The applicant refers to a court case claimed to have been listed [in] March 2014 but no other details have been provided about that case, nor has he provided the claimed document in support. The applicant claims that the family has suffered threats but he provides no details about when and how those threats are claimed to have occurred.

16. The Tribunal invited the applicant to attend a hearing and advised him that it could not make a favourable decision on the basis of the available information. The applicant has advised the Tribunal that he does not wish to attend the hearing, despite previously informing the Tribunal that he did wish to attend. The Tribunal has not had the opportunity to discuss with the applicant the claims that he has made in the application for a protection visa. Had the applicant attended a hearing, the Tribunal would have asked him for more details about his claims.  For example, the Tribunal would have asked the applicant about the claimed “economic crimes…. Economic argument“.  The Tribunal would have asked the applicant questions about the alleged threats.  The Tribunal would have asked the applicant for details about the development project. The Tribunal would have tested the evidence and had an opportunity to ask all questions considered relevant.

17. Without further details and the opportunity to explore with the applicant his claims in the course of the hearing, and in consideration of the evidence as a whole, the Tribunal is not satisfied that the applicant’s parents have been involved in any “economic crimes” or economic argument, or that his parents borrowed money from banks and local [criminal] loan companies, or that there were any family or social issues, or that the applicant’s father was chosen to undertake a [project], or that any such project was changed to a [different] project, or that the applicant’s father was unhappy about the change but continued to work, or that the banks and the loan companies are working together, or that the local government and the [criminal community]  work together, or that his parents or close family relatives have ever been intimidated as claimed, or that there was a court case listed [in] March 2014 at any time, or that the local [criminals] would try to find them, or that any member of the family has “suffered the life threatened”, or that the relationship between his parents is problematic or that they do not communicate, or that the applicant fears returning to for any of the claimed reasons, or that he fears that he would be killed in case of his return to China, or that he fears that he and/or his family would be harmed for any of the claimed reasons.  In essence, and for the stated reasons, the Tribunal does not accept that the applicant or any member of his family has ever suffered any of the claimed harm. For the same reasons, the Tribunal finds that there is not a real chance or a real risk of serious or significant harm occurring to the applicant if he were to return to China.

18. For those reasons, the Tribunal finds that the applicant does not have a well-founded fear of persecution.  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 s.36(2)(a).

19. 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).  For the reasons given above, the Tribunal finds that there are no 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 for any reason.  Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

20. 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

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

    Antoinette Younes

    
    Senior Member