1511935 (Refugee)

[2018] AATA 515

1511935 (Refugee) [2018] AATA 515 (28 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1511935

COUNTRY OF REFERENCE:                  China

MEMBER:Angela Cranston

DATE:28 February 2018

PLACE OF DECISION:  Sydney

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

Statement made on 28 February 2018 at 2:13pm

CATCHWORDS
Refugee – Protection visa – China – Protester against land confiscation – Claims vague and lack detail – No appearance at hearing

LEGISLATION
Migration Act 1958, ss 36(2)(a), (aa), (b), or (c), 65, 426A, 499
Migration Regulations 1994, Schedule 2

CASES
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. 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] September 2014 and the delegate refused to grant the visa [in] August 2015.  In his application, the applicant stated that in late 2011 the government wanted to build a new road in his village and his house was to be demolished. He also stated that one day, they united and protested and the police came and he ran away to avoid being arrested. He also stated that the police were looking for him and he was very scared to return home.

3. The delegate refused to grant the visa and the applicant applied for review.

4. On 9 January 2018 the Tribunal wrote to the applicant at his last notified address for correspondence advising him that it had considered all the material before it relating to his 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 on 28 February 2018 at 1.30pm. 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 applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear.

5. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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 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.

7. 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).

8. 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.

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. 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.

11. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

12. 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 all of the statutory elements are made out. 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.)In the absence of evidence to the contrary, the Tribunal accepts that the applicant is a Chinese national.

13. The applicant claims that he fears harm in China because the police were looking for him because in late 2011 the government wanted to build a new road in his village and his house was to be demolished and one day he protested and the police came and he ran away to avoid being arrested.

14. The applicant provided no documentary evidence in support of this claim.

15. The claims before the Tribunal are vague and lacking in detail in relation to when he allegedly protested and what has subsequently happened to the applicant. The applicant was invited to appear before the Tribunal but did not do so. As a consequence, the Tribunal has been unable to question the applicant further as to the veracity of his claims, leaving his claims unclarified and the Tribunal's questions unanswered. On the evidence before it, the Tribunal is not satisfied that the applicant has suffered persecution in the past, nor that he has a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or because of his membership of a particular social group if he returns to China in the foreseeable future.

16. 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).

17. 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). Given that the applicant's claims is vague and lacking in essential detail, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

18. 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

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

    Angela Cranston
    Member