1516581 (Refugee)

[2018] AATA 571

1516581 (Refugee) [2018] AATA 571 (23 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1516581

COUNTRY OF REFERENCE:                  China

MEMBER:Luke Hardy

DATE:23 February 2018

PLACE OF DECISION:  Sydney

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

Statement made on 23 February 2018 at 11:31am

CATCHWORDS

Refugee – Protection visa – China – Political opinion – Opposition to local village official – Anti-corruption petitioner – Physical assault – Return visit to China

LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 36, 65, 426A, 441A, 499

Migration Regulations 1994 Schedule 2

CASES
MIEA v Guo (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 claims to be a citizen of China. He first entered Australia [in] August 2014 on a [temporary] visa. He departed Australia [in] September 2018 and evidently re-entered China. He last entered Australia [in] September 2014 and lodged a protection visa application [in] December 2014, [just] before his visa was due to expire. The Minister’s delegate refused to grant the visa [in] November 2015. The applicant then sought review by this Tribunal.

3. On 20 December 2017, the Tribunal wrote to the review applicant by email advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 23 February 2018. The invitation stated that if he did not attend the hearing, the Tribunal might make a decision on the case without further notice. The Tribunal also sent him SMS reminders about the hearing, respectively 5 and 2 business days before the scheduled hearing. Information in the Tribunal’s records shows that the first reminder failed to be received at the telephone number the applicant had previously provided.

4. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.441A(5), that the email invitation did not fail to send. In the 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.

   CRITERIA FOR A PROTECTION VISA

   Relevant law

5. 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.

6. 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).

7. 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.

8. 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

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments 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

10. The issue in this case is whether or not the applicant is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds.

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. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

13. The applicant in the present case claims to have resided in a village in Langfang City, Hebei province. He claims he opposed the election of a particular village secretary on grounds of corruption. He claimed that he petitioned the authorities regarding the perceived corruption and that he was harassed and assaulted. He claimed he was warned he would be killed if he continued petitioning. He claimed he feared for his safety and for that of his family and arranged to go abroad.

14. The applicant stayed in Australia a week before returning to China. He claimed he wanted to seek protection here but did not speak English and did not know what to do. Notwithstanding that he had several months on his visa allowing him to remain here and seek information on how to lodge a protection visa application, the applicant returned voluntarily to China.

15. The applicant claimed to the Department that he did not return to his home province but remained in Beijing. He claimed he telephoned his wife. He claimed she told him of a summons issued for him to report to the police. He claimed he also learned there that his family was being harassed back home. He claimed he came to Australia again. He sought protection [just] before his three-month visa expired.

16. The passport submitted by the applicant to the Department provides evidence of his having been permitted to depart China twice under the full view of the authorities; meanwhile, he evidently re-entered China, moving back into the population during his return visit to China. I wanted to ask him how he was able to do these things given that, as he has claimed, he was being pursued by China’s authorities over trying to escalate the claimed petitions and protests in this case.

17. I also wanted to ask the applicant for evidence supporting his claims. I wanted to ask him for material supporting his claim to have been accommodated temporarily in Beijing throughout the period of his return. I wanted to ask him for evidence of the alleged summons. I wanted to ask him why he voluntarily sought China’s protection, essentially by returning there in September 2014, instead of staying in Australia and taking more active measures to try to make a protection visa application. I wanted more information from the applicant about his apparent delay in bringing his protection claims to light.

18. For the purposes of this review, the applicant submitted a copy of the delegate’s decision in this matter. That decision record includes a summary of the contents of the delegate’s interview [in] November 2015. The applicant has not suggested that the summary of oral claims at that interview is in any way inaccurate. Relevantly, I note that the applicant told the delegate [in] November 2015 that he would return to China in two years, apparently so that he could continue to fight corruption. Since it is now more than two years since November 2015, I wanted to ask the applicant about his previously-articulated willingness to avail himself, by now, of China’s protection.

19. To sum up, I needed very much more detailed information from the applicant as to how and why the purported events in his claims give rise at the time of this decision to a real chance of Convention-related persecution in the reasonably foreseeable future or to a real risk of significant harm as exhaustively defined in s.36(2A) and s.5(1) of the Act.

20. Without more from the applicant, who has not made any response to the invitation to provide more information at a hearing in this case, I am not satisfied on the evidence before me that he has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Nor am I 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 the applicant will suffer significant harm.

21. 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

22. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Luke Hardy
    Member