1515555 (Refugee)

[2018] AATA 4972

1515555 (Refugee) [2018] AATA 4972 (3 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1515555

COUNTRY OF REFERENCE:                  China

MEMBER:Angela Cranston

DATE:3 December 2018

PLACE OF DECISION:  Sydney

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

Statement made on 03 December 2018 at 11:50am

CATCHWORDS
REFUGEE – Protection visa – China – particular social group – person involved in a car accident – money dispute claim – falsely collected money – victim of extortion by executive – fear of gangsters – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 91R, 91S, 499
Migration Regulations 1994 (Cth), Schedule 2

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 and Border Protection 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 on 10 November 2014. In his application, the applicant stated the following:

At about [the evening] of [a date in] July 2014 when I was driving home from Yulin City, I sideswiped a sedan parking at roadside at a spot about there (sic) kilometres from my home due to my fatigue from a full day driving and the lack of roadside lights as well. I immediately pulled over and got out of my truck. Then two persons came out of the sedan and started screaming at me are you blind? How can you crash your car into that of our general manager? He is suffering the [bleeding]. You are in big trouble. Now we are too busy to talk to you as we must first rush our general manager to the hospital emergency department. Give us your driver license so to let us have your details. We will contact you shortly. Take the business card of our general manager first so you know to whom you have cause injury!

The moment I had a look at this business card at home I knew I was in big trouble. This general manager [Mr A], is a noted person of [a] company in our city. He used to be a local rascal noted for his various vices such as blackmailing, extortion and easy money making. He had left this city a couple of years ago and apparently had made quite a lot of money during this period of time. He then came back to set up a company and had married a woman whose cousin, [Mr B], is [an official] of city government. With such background, his vice of blackmailing, extortion and easy money making went further instead of being restrained. He is driving a [luxury vehicle] and is noted for his debauched life like gambling or prostitute seeking.

Two days later, I had a phone call and was told to visit this general manager at the city public hospital. When I was there, I saw him with his eyes closed and his [body] covered with dressing. His personal assistant [Mr C] spoke to me: The hospital examination tells us our general manager is suffering the severe head trauma and the brain concussion. He is still in a coma and it requires the emergency treatment. So we need quite a lot of money for his medical treatment. You should go home now to get us [an amount] yuan first. Please be quick!

I then told my wife about what had happened to this general manager. My wife also had the sense that we were in big trouble. So we visited hospital together with a lot of nutrition food just bought and also the money just drawn from the bank. We met the wife of the general manager at the hospital. My wife spoke to her: my husband [the applicant] had caused this accident and our whole family is deeply sorry for what had happened to General manager. We wish you would forgive us. We would pay all the medical cost for him and ask the doctors to do their best so general manager would have a quick recovery. On the fifth day after this incident I went to the hospital again so to visit general manager in the ward. However he was not there anymore. A nurse told me that this patient had left early in the morning and he had not returned yet. The following day his assistant [Mr C] talked to me on the phone: general manager is suffering blood clotting [and] it needs the surgical operation. You must bring another [amount] yuan. Also his car is a new [luxury vehicle] just bought in this February. This is a genuinely imported car from [a European country] and it is now sent to the garage for repair. The rear part of this car needs a new genuine imported replacement from [another country]. The replacement parts cost [amount] yuan and the labour cost is [amount] yuan. Tomorrow you should bring us [amount] yuan and it must be in cash.

I said I did not have so much money and had to borrow that money. I asked for three day time so that I could talk to my wife at home. As it was hard to borrow the money, the only option was to sell my property. I immediately approached the agent. As it was a fire sale, the agent only offered me [amount] yuan instead of the market value of [amount] yuan (after receiving the money). I immediately visited the hospital with the money. However, I did not see the general manager there. I then rushed to his company and gave the money to his assistant, [Mr C].

One week later, [Mr C] talked me on the phone again. General manager had a successful surgical operation in the blood clogging [was] removed. Unfortunately another blood clogging is [found]. He needs further surgical operation. You caused so much pain for our general manager! The hospital told us to make the down payment of [amount] yuan for that surgical operation. You must bring that money to my office in three days.

It was such a shock for me as I simply did not have that much money. Neither have I any idea how much more I would be asked to pay in future. It would simply ruin our whole family. However I have no choice. Being the party at fault in this incident, I cannot shift my responsibility but have to give the money to his assistant [Mr C] again, particularly in consideration that this general manager was still fighting for his life.

On Sunday afternoon, my wife and I again went to the hospital to visit general manager with the nutrition food we bought. A nurse told us that the patient was not there. I then started asking myself why we could not see the general manager in either of our visits. Brain surgery is a kind of major operation and the patient should rest well for a quick recovery. Having sensed something unusual, I quietly asked someone to contact the hospital insiders to learn the truth. I then was told that they had bribed the hospital management to shield the truth from me. This general manager only suffered the minor injury on his [body] and he needed the rest for just a couple of days. As these persons are aware that I had some money so that they colluded with the hospital to set a trap to fleece my money by fabricating the medical reports. I became very angry when I learned of this. The money they demanded is our sweat money.

On the third occasion when [Mr C] demanded more money from me for the so-called medical cost and the nutrition food cost, I spoke to him angrily your general manager only suffered minor head injury from this accident. You are just heartless by demanding so much money from me. This is our sweat money. We bought that property for our first as he needs it when he is to marry. Now I have sold this property. I accept my fate. We are just the ordinary people and your people are too powerful for us to say no. However, you are simply too greedy and want us to sell our own home to give that money to you. You are simply driving us in a corner without giving us any room to live. I will not sell my own home to give you that money

That [Mr C] spoke to me you should think carefully whether you are capable to say no to our general manager. You’ll be given two days to raise that money!

At about [time] of the third day when I returned home after making a delivery to Shijiazhuang City, I was stopped at the entrance to our village. A group of persons dragged me out of my truck and they kicked me and punched me. They warned me “you brat what do you want life or money? If you do not bring that money over, we would beat both of your legs broken! Remember in two days!”

My nose started bleeding and I suffered the pain all over.

When my wife saw this, she was so frightened that she cried. We then spent the whole night talking about what we should do. We decided that for the moment we have no other choice but to flee for life. We should wait until this is a change of situation. By that time we might return home.

From   I travelled to Beijing to visit the home of my wife’s cousin to ask them for our Australian application.

3.    The delegate refused to grant the visa on 21 October 2015 and the applicant applied for review.  

4.    The applicant appeared before the Tribunal on 28 November 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant stated that he could not remain in China because gangsters always beat people and asked for money.  

5.    The applicant stated that his English statement had been read back to him in Chinese and was correct. He did not wish to change or add anything.

6.    The applicant stated he could not remain in China any longer because in July 2014 he had hit another car and as a consequence was asked for money. He stated the other driver was admitted to hospital with serious [injuries] and he had been asked for [amount] rmb, then [amount] rmb and then [amount] rmb. He stated the third time he visited the hospital, a patient had told him that the man’s [injury] was not that serious and the applicant confirmed with hospital management that the man had been lying to him. He stated later he was asked for more money but refused saying that he had been lied to about the injury. He also stated that when he failed to give more money he was beaten and further threatened and because he had no other money he had no other option but to flee. When asked why his only option was to come to Australia he stated because he couldn’t stay and had heard people saying that Australia was safe, valued human rights and that it was easy to find a job and he had to prepare money for his two sons to get married.

7.    When asked to elaborate on the accident he stated after the cars crashed, two unhurt people came from a [luxury vehicle] and said their boss had head injuries. When asked if the fact that the two people were unhurt made him suspicious, he stated he was in shock and quite panicked and they told him they needed to go to hospital. When asked if he requested any evidence in relation to the alleged injuries or any evidence in relation to the cost of treatment he stated he did not because he had hit them and if they had asked for money he needed to pay. The Tribunal put to him that it was difficult to accept that he as a businessman would be so naïve as to hand money over on three separate occasions without evidence. He stated because they belonged to gangsters he dared not ask too many questions. When asked if he thought to call the police he stated that would not help him because he had had a car accident and they had hurried away.

8.    When asked why he could not return to China he stated the people who had threatened him belonged to a gangster group and had connections with government officials and if he returned to China they would ask him for money. He stated they were still returning to his home and asking for money and had done that most recently about one month ago. When asked when they first visited his house he stated not long after he left for Australia. The Tribunal put to him that was not in his statement. He stated he didn’t think about that.

9.    The Tribunal put to him that it was wondering whether he would be that naïve. The Tribunal also put to him that it was wondering whether coming to Australia in such circumstances was his only option and that if gangsters were continuing to visit his wife and home and threatening them then it may be something he would have mentioned in his statement. He stated he didn’t initially write that they were visiting and later on felt it was too much trouble to change his statement because he didn’t speak English. The Tribunal also put to him that even if it accepted his evidence, he had stated that the illness had been faked, they took all his money in 2014 and the Tribunal may not be satisfied that there was a real chance that he would be persecuted in future or may not be satisfied that there was a real risk of significant harm in future. He stated they would never be satisfied. He also stated you could never tell since they belonged to a gangster group and had connections with the government and he could not go to court because he was a normal citizen and would not dare confront them. He also said legal fees to go to court were costly and there was no chance he could win a court case against them.

RELEVANT LAW

1. 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

1. 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).

2. 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.

3. 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.

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

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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

1. 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’).

2. ‘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.

3. 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

1. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of 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

1. The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five Convention reasons in China and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of his being removed from Australia to China, there is a real risk that he will suffer significant harm.

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

27.   The applicant has stated in his application that he fears returning to China because he has been targeted by gangsters who told him he was responsible for [an] injury in 2014 car accident and then falsely collected money from him.

28.   The Tribunal finds that the applicant's evidence at hearing about his alleged accident and being personally blamed by gangsters for an alleged [injury] unconvincing. Firstly, his written statement failed to indicate that the gangsters came to his home shortly after he arrived in Australia in 2014 even though he suggested at hearing that he continued to fear returning to China because the gangsters continued to have an ongoing interest in him as evidenced by their continued visits to his home. In addition, when asked about the 2014 events, the applicant could not explain to any extent why he would be so naive as to continue to sell his property and hand over his savings before obtaining evidence that would confirm the alleged injuries and the alleged cost of treatment. Neither was the applicant able to discuss at hearing to any extent why he did not go to police or why coming to Australia was his only option. The Tribunal has formed the view that the applicant's options before he came to Australia and why he allegedly handed over his savings and sold his property before obtaining evidence that would have confirmed the alleged injuries and cost of treatment were issues that meant little to him because he was not talking about events that had occurred but was making up his evidence as he went along.

1. The Tribunal does not find the applicant credible and does not accept that the applicant has been telling the truth about the reasons why he came to Australia. The Tribunal does not accept that the applicant was in a car accident that caused injuries, or that because of the alleged injury he then gave money to gangsters who later beat him and threatened him with further injury if he did not continue to pay. Neither does the Tribunal accept that gangsters have continued to visit his family or home.

2. For the reasons above, the Tribunal does not accept that the applicant has suffered any previous harm in China.   The Tribunal does not accept that the applicant has a well-founded fear of being persecuted from gangsters or from anyone else for one or more of the five Convention reasons if he returns to China now or in the reasonably foreseeable future.

3. 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).

4. 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). On the basis of the applicant's lack of credibility, the Tribunal has rejected the applicant's claims that gangsters continue to want him to pay money to them and he will be targeted on that basis. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

5. 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).

6. 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

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

Angela Cranston
Member