1511942 (Refugee) - [2017] AATA 2198

1511942 (Refugee) [2017] AATA 2198 (24 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1511942
COUNTRY OF REFERENCE:                  China
MEMBER:Meena Sripathy
DATE:24 October 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 24 October 2017 at 4:56pm
CATCHWORDS
Refugee – Protection visa – China – Imputed association with Falun Gong – Household registration cancelled – Compensation for forced demolition – Credibility concerns

LEGISLATION
Migration Act 1958, ss 5(1), 36, 48, 65, 499
Migration Regulations 1994 Schedule 2

CASES
AMA15 v MIBP [2015] FCA 1424
MIMA v Rajalingam (1993) FCR 220
Selvadurai v MIEA& Anor (1994) 34 ALD 347
SZGIZ v MIAC (2013) 212 FCR 235
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

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).
The applicant who claims to be a citizen of China arrived in Australia [in] December 2002 as the holder of a [temporary] visa and on a passport issued to him by the government of the People’s Republic of China (China). He made an application for a Protection visa [in] January 2003 that was refused by a delegate of the Minister for Immigration [in] February 2003, and on review by the Refugee Review Tribunal on 3 December 2003.
Following the introduction of the ‘Complementary Protection’ criteria into the Migration Act in March 2012, and the subsequent decision of the Full Court of the Federal Court in SZGIZ v MIAC (2013) 212 FCR 235, the applicant was eligible to have his claims assessed against the Complementary Protection criterion, and on that basis, he lodged a further application for a Protection visa [in] October 2013. That application was refused by a delegate of the Minister for Immigration [in] August 2015 and is the subject of the present review.
Validity of the application and the Tribunal’s jurisdiction
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. However, in SZGIZ v MIAC, the Full Federal Court held that the operation of s.48A, as it stood at the time of this visa application, 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 criterion for the grant of a Protection visa. Applying the reasoning in SZGIZ v MIAC[1], the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1511942 (Refugee)

Details

AGLC: 1511942 (Refugee) [2017] AATA 2198
Case: [2017] AATA 2198
Decision Date: 24 October 2017

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant from Tianjin Province, China, who sought a protection visa. The applicant claimed to fear persecution upon return to China due to an imputed association with Falun Gong, and also feared mistreatment and denial of compensation for the forced demolition of his home. The Tribunal was required to assess the credibility of the applicant's claims, particularly in light of significant inconsistencies with his previous protection visa application.

The central legal issues before the Tribunal were whether the applicant had a well-founded fear of persecution based on his imputed association with Falun Gong, and whether he would face mistreatment or denial of compensation for his home demolition. The Tribunal had to determine if the applicant's current claims were credible, especially given his prior assertion of being a Falun Gong practitioner, his subsequent denial of any involvement, and his conflicting statements regarding his family's situation and the demolition compensation.

The Tribunal found significant credibility concerns with the applicant's claims. It noted that in his previous application, the applicant stated he had been a Falun Gong practitioner since 1999, had his home raided, and lost his job due to his practice. He also claimed his wife had been summoned by police multiple times. However, in his current application and interview, he denied being a Falun Gong practitioner, stating the authorities were interested in him only because of a friend's association with the group. He also claimed to have lost contact with his family and was unsure if his mother, the official owner of the demolished unit, had received compensation. The Tribunal considered the audio recording of the applicant's interview and found his explanations for the discrepancies unconvincing. The Tribunal concluded that the applicant had not established a well-founded fear of persecution.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCEEvidence to the Department The applicant is [an age] year old man from Tianjin Province, China. He speaks, reads and writes Mandarin. He is married and has his wife, son and mother in China. He provided one residential address in Hongqiao District Tianjin City to the time he came to Australia. He completed primary and high school in Tianjin. He states his occupation as [an occupation] but provides no details of past employment. In his reasons for leaving China he states ‘to escape the persecution sustained’. He states he has been interrogated in relation to Falun Gong. He fears being interrogated again and detained and harmed by the authorities. He also fears persecution when he claims his right to compensation for unfair demolition of his home unit by the authorities. He is in fear of being mistreated as he cannot afford to buy a unit after he authorities pushed his building down. In response to why he thinks this will happen to him he says the matter regarding Falun Gong is still open if he continues to associate with Falun Gong he will be investigated. He said it is apparent the authorities will deny his compensation claim and if he pursues his rights he will be harmed and mistreated. Department interview The applicant was interviewed by a delegate of the Minister [in] September 2014. The Tribunal has listened to the audio recording of this interview. At the interview the applicant reiterated his claims as set out in the application. He clarified that he has never been a Falun Gong practitioner and doesn’t even like it. He indicated the authorities are interested in him because of his close association with a [friend] who is a Falun Gong practitioner. He did not indicate any past interrogation, just that the authorities were looking for him. He also referred to a new claim, not previously mentioned, that he believes his hukou was cancelled 2-3 years after he left China and he would not have legal status if he returned. The applicant confirmed that the claims made in his previous protection visa application, referring to Falun Gong practice by his wife, was not true. He said he is not a Falun Gong practitioner. When he came to Australia he briefly looked into it but he did not continue. With regard to the compensation claims, he confirmed his mother is the official owner of the unit. His mother is with his wife and son but he has lost contact with all of them for many years now. He does not know if his mother received compensation for the unit, but was told before he lost contact with them that the authorities would not pay any compensation until they got hold of him.Previous protection visa application The applicant’s claims in his earlier protection visa application were significantly different to his current claims. In a statement submitted with that application he claimed to have been a Falun Gong practitioner since 1999, along with his wife. He claimed that the police raided his home in 2000 and warned him not to continue to practice Falun Gong, and in 2000 he lost his job because of this. He claimed that he managed to get another job after this and continued to practice Falun Gong at home secretly. He travelled to Australia at the end of 2002, and before he returned a local official came to the house and warned his wife they would take action against him. His wife informed him of this when he returned and so he immediately returned to Australia without arranging anything for his wife and son. His wife had been summoned to the police station three times since he left and he doesn’t even know the details of what has happened to them.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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