1514054 (Refugee)

[2018] AATA 121

1514054 (Refugee) [2018] AATA 121 (16 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1514054

COUNTRY OF REFERENCE:                  China

MEMBER:Linda Symons

DATE:16 January 2018

PLACE OF DECISION:  Sydney

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

Statement made on 16 January 2018 at 2:45pm

CATCHWORDS
Refugee – Protection visa – China – Business loan from government – Fears harm from debt recovery gang – Confiscation of home – Failed to attend hearing – Insufficient evidence

LEGISLATION
Migration Act 1958, ss 36, 65, 499
Migration Regulations 1994 Schedule 2

CASES
MIEA v Guo & Anor (1997) 191 CLR 559 at 596
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, arrived in Australia [in] January 2006 as the holder of a [temporary] visa. This visa expired [in] February 2006 and he thereafter remained in Australia as an unlawful noncitizen. [In] October 2014, he was granted a Bridging visa C. He was subsequently granted to further Bridging visas.

3. The applicant applied to the Department of Immigration and Border Protection (the Department) for a Protection visa [in] October 2014 and the delegate refused to grant the visa [in] September 2015. On 16 October 2015, he applied to the Tribunal for a review of that decision.

4. On 17 November 2017, the Tribunal wrote to the applicant and informed him that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited him to appear before it on 16 January 2018 to give evidence and present arguments relating to the issues arising in his case. The letter informed the applicant that if he did not attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable him to appear before it or may dismiss his application for review without any further consideration of the application or information before it.  

5. The Tribunal’s letter dated 17 November 2018 was sent to the applicant by email on 17 November 2017 to the email address provided by him. The email was not returned undelivered. On 9 January 2018, a Tribunal officer sent the applicant a test message to his mobile telephone reminding him of the hearing date. On 15 January 2018, a Tribunal officer sent the applicant another test message to his mobile telephone reminding him of the hearing date. The Tribunal did not receive a response to the test messages. The Tribunal also did not receive the Response to Hearing Invitation form from the applicant as requested. 

6. The applicant did not attend the hearing scheduled on 16 January 2018. He did not contact the Tribunal to request a postponement of the hearing or to explain his non-appearance. 

7. In the circumstances, the Tribunal has decided to proceed to make a decision on the review.

8. The issues that arise on review are whether the applicant is owed Australia's protection under the Refugees Convention or under the complementary protection criterion.

   CRITERIA FOR A PROTECTION VISA

9. 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.

10. 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).

11. 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.

12. 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’).

    Mandatory considerations

13. 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 AND FINDINGS

14. The applicant’s claims in his application for a Protection visa are summarised as follows:

    ·He borrowed [an amount] yuan from the Chinese government and invested it in a [project]. The head of the [related government agency] changed and the new head asked him to repay the money. He was unable to repay the money and owed money to the workers.

    ·The government hired a local gang to recover the money from him. Members of the gang threatened to kill him if he did not repay the money. The government confiscated his house. He was hurt and detained by gangsters and the Chinese authorities. He was beaten several times. The workers also found him everywhere.

    ·If he returns to China he will be persecuted by the gangsters and other debtors. He may even be killed. No one can protect him. He will be persecuted by the local authorities, members of the gang. Debtors and workers.

    ·He had to escape to Australia to avoid persecution. If he returns to China he will be arrested or killed by somebody. He fears for his life.

15. The applicant provided the Department with a copy of the bio data page of his Chinese passport.

16. The applicant was invited to attend an interview with the Department [in] September 2015. He failed to attend the interview or provide an explanation for his non-attendance.

    Country of nationality

17. The applicant claims to be a citizen of China and has provided a copy of his Chinese passport to the Department. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of China. The Tribunal finds that China is his country of reference for the purpose of assessing his claims for protection under the Refugees Convention and his receiving country for the purpose of assessing his claims for protection under complementary protection criteria.

    Third country protection

18. There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

    Assessment of claims

19. The mere fact that a person claims a fear of persecution for a particular reason does not establish the genuineness of the asserted fear or that it is “well founded” or 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 in as much detail as is necessary to enable the decision maker to establish the relevant facts. A decision‑maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all of 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.)

20. In this case, the applicant’s claims are made in the most general terms and they are unsubstantiated. He did not attend the interview with the Department [in] September 2015 and provide further details of his written claims for protection. As the applicant did not attend the hearing on 16 January 2108, the Tribunal was unable to obtain further details of his claims and to test their veracity.

21. If the applicant had attended the hearing, the Tribunal would have asked him for further details of the project he invested in and the terms and conditions under which he borrowed [the amount] yuan. The Tribunal would have ascertained how the money was spent and why workers were not paid. The Tribunal would have asked him why the Chinese government hired a local gang to recover money from him instead of doing so through official channels. The Tribunal would have sought further information in relation to him being beaten, hurt and detained by gangsters and the Chinese authorities.

22. If the applicant had attended the hearing, the Tribunal would have discussed the confiscation of his house with him. The Tribunal would have ascertained why he fears that he will be arrested and killed if he returns to China. The Tribunal would have sought an explanation for why he delayed claiming protection for over 8 years after his arrival in Australia in view of his claims that he came to Australia to avoid persecution and fears for his life if he returns to China. The Tribunal would have ascertained what nexus his claims have to the Refugees Convention.  

23. The evidence before the Tribunal is not sufficiently detailed for the Tribunal to be satisfied that the applicant suffered serious harm in China or that he is at risk of serious harm or significant harm if he returns to China.

Does Australia have protection obligations to the applicant under the Refugees Convention?

1. On the evidence before it, the Tribunal is not satisfied that any of the grounds under the Refugees Convention is the essential and significant reason for the harm feared by the applicant.

2. Accordingly, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm for reason of any ground under the Refugees Convention if he returns to China now or in the reasonably foreseeable future. Therefore, the Tribunal is not satisfied that he has a well-founded fear of persecution for a Refugees Convention reason. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.

   Does Australia have protection obligations to the applicant under the complementary       protection criterion?

3. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.

4. As indicated above, the applicant has failed to provide sufficient details regarding his claims for protection. As he did not attend the hearing on 16 January 2018, the Tribunal was unable to obtain further details of his claims and to test their veracity. On the evidence before it, the Tribunal is not satisfied that there is a real risk that he will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to China now or in the reasonably foreseeable future.

5. On the evidence before it, the Tribunal is not satisfied 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 he will suffer significant harm. 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) of the Act.

   CONCLUSION

6. 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) or s.36(2)(aa) of the Act.

7. There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a Protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.

   DECISION

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

Linda Symons
         Member