1517168 (Refugee) - [2020] AATA 5166

1517168 (Refugee) [2020] AATA 5166 (12 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBERS:  1517168
1517170
COUNTRY OF REFERENCE:                   China
MEMBER:Mireya Hyland
DATE:12 November 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decisions not to grant the applicants Protection visas.

Statement made on 12 November 2020 at 6:35pm
CATCHWORDS
REFUGEE – protection visa – China – mother’s and son’s separate claims on same grounds heard together – not dependent members of family unit for purposes of regulations – land resumed by government for development project – protests and attempts to claim compensation – detention, harassment and threats – mother’s two stays in another country, son’s guarantee and penalty bond – city government’s plan to demolish apartment building – applicants’ fear of imprisonment, abuse, forced labour or death penalty – credibility – implausible and inconsistent claims and evidence – some claims made for first time at hearing – many minor inconsistencies and omissions collectively given some weight – no harm to husband/father remaining in home country – no response to tribunal’s post-hearing invitation to comment or provide evidence of mother’s mental health – decisions under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA, 36(2), 65, 424(2), 424A
Migration Regulations 1994 (Cth), rr 1.05A, 1.12(1)(b), (e)(i)
CASES
Aporo v MIAC [2009] FCAFC 123; (2009) 113 ALD 46
Applicant M164/2002 v MIMIA [2006] FCAFC 16
BEL16 v MHA [2019] FCA 1678
Dranichnikov v MIMA [2003] HCA 26; (2003) 77 ALJR 1088
Kopalapillai v MIMA (1998) 86 FCR 547
Machmud v MIMA [2001] FCA 1041
MIAC v SZNSP (2010) 184 FCR 485
MIAC v SZQRB [2013] FCAFC 33
MIAC v SZRKT [2013] FCA 317
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
MZYWL v MIMA [2013] FCA 895
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
SAAG v MIMIA [2002] FCA 547
Selvadurai v MIEA (1994) 34 ALD 347
Sun v MIBP [2016] FCAFC 52
Sundararaj v MIMA [1999] FCA 76
SZLUN v MIAC [2009] FMCA 1013
SZLVZ v MIAC [2008] FCA 1816
W148/00A v MIMA (2002) 185 ALR 703
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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

These are applications for review of decisions made by a delegate of the Minister for Immigration on 20 November 2015 to refuse to grant the applicants, [the first applicant] and her son, [the second applicant], protection visas under s.65 of the Migration Act 1958 (the Act).
[The first applicant] and [the second applicant] applied separately for the visas on 3 November 2014. The delegate refused to grant the visas on the basis that she was not satisfied that either [the first applicant]…

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.

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Details

Case: [2020] AATA 5166
Decision Date: 12 November 2020

CaseChat Overview and Summary

This matter concerned the separate applications for protection visas by a mother and her son, who advanced similar claims based on events in China. The dispute centred on whether the applicants had established a well-founded fear of persecution or harm, and whether they constituted a family unit for the purposes of the regulations. The Tribunal was required to determine the credibility of the applicants' claims, which included allegations of detention, harassment, threats, and fear of imprisonment, abuse, forced labour, or the death penalty, arising from land resumption and protests against a government development project.

The Tribunal was tasked with assessing the consistency and plausibility of the applicants' evidence, noting that some claims were made for the first time at the hearing. A key legal issue was whether the mother and son were members of the same family unit as defined by the Act and Regulations, particularly in relation to the son's father who remained in China. The Tribunal also considered the applicants' failure to respond to post-hearing invitations to provide further information or comment on adverse material.

In its reasoning, the Tribunal found that the applicants did not meet the definition of a family unit. Specifically, the son was not considered a dependent child of his father, as he did not receive the requisite support. The Tribunal also found the applicants' claims to be implausible and inconsistent, giving weight to numerous minor discrepancies and omissions collectively. Furthermore, the Tribunal noted the lack of evidence of harm to the husband/father remaining in China and the applicants' non-response to the Tribunal's invitation to comment on adverse information.

Ultimately, the Tribunal affirmed the decisions not to grant the protection visas to the applicants, concluding that they did not satisfy the criteria for such visas.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Tribunal has reviewed the audio of the Interviews as well as the Hearing. Where relevant that evidence appears in this decision. It does not necessarily appear in the order in which it was given. On 28 October 2020, after reviewing all the material before it including the Interviews and Hearing, the Tribunal sent [the first applicant] and [the second applicant] invitations in accordance with s.424A of the Act, giving them an opportunity to comment on or respond to information that may be the reason or part of the reason for the Tribunal to affirm the decisions under review. It also sent them invitations to provide any additional information that they would like the Tribunal to consider in its review of their matters pursuant to s.424(2) of the Act. In line with the legislation, the Tribunal informed [the first applicant] and [the second applicant] that they had until 11 November 2020 to respond to its correspondence or to request an extension of time in which to respond. As at the date of this decision neither [the first applicant] nor [the second applicant] have responded to the Tribunal’s letters or requested an extension of time in which to respond.Background According to her PVA and Form 80, [the first applicant] was born on [Date] in Heilongjiang province, China and is [Age] years of age. She attended and completed [Primary School ] from [Year] to [Year] and [Middle School] from [Year] to [Year] and she speaks, reads, and writes Chinese. She then worked in [Workplace 1] from 1977 until 2002. [The first applicant] married [Mr A] in 1981 and there is one child of the marriage, [the second applicant] born on [Date]. From 2002 until 2012 she was the manager of [Company 1] and from 2012 to 2014 she was Chairman of [Company 2], a [Business 1] in Fengtai district, Beijing. According to his PVA and Form 80, [the second applicant] was born on [Date] in Heilongjiang province, China and is [Age] years of age. He attended and completed [Primary School] from [Year] to [Year] and [Middle School] from [Year] to [Year] and he speaks, reads, and writes Chinese. He then worked in [Workplace 2] from 2002 to 2006 and for [Workplace 3] as a manager from 2006 to 2009. [The second applicant] was the General Manager of [Company 2], a [Business 1] in Fengtai district, Beijing, from 2009 until August 2014. He had a de facto partner, [Ms B] born [Date], until the beginning of 2014 and there is a son of that relationship, [Master C] born on [Date]. [Ms B] and [Master C] used to live in Beijing but now live in Heilongjiang province with [Ms B]’s parents. [The second applicant] claims to have no contact with them. According to the Statements, [the first applicant] and [Mr A] were farmers in [Village], [Town] in Heilongjiang province until their farm (the [Village] land) was resumed by the government for a [development project], although this was not included as employment in [the first applicant]’s PVA or Form 80. In her evidence she claimed that they made a lot of money as farmers and were very well off. In 1992, [the first applicant] and [Mr A] bought a [unit] at [Location 1] on [a] Street in [a] district of Hailin City, Heilongjiang province (the Hailin City unit) and moved there with [the second applicant], who was around [age] years old. According to evidence at the Hearing, in Hailin City, [Mr A], who had also sold [products] when he was a farmer in [Village], opened a [Business 2] which he ran until he had a brain haemorrhage (stroke) in about 2007. From March 2010 (when he was [age]) until August 2014, [the second applicant] also lived at [Location 2] in the Chaoyang district of Beijing. In his evidence he claimed he used to own a home in Beijing but sold it before coming to Australia. [The first applicant] moved from the Hailin City unit to [Location 2], Chaoyang district, Beijing ([the second applicant]’s Beijing home) in March 2014 and lived there until leaving China in August 2014.

Evidence

Evidence Before The Court

In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (DHA), and the country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, Country Information Report – China dated 3 October 2019, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE [The first applicant] and [the second applicant] made their claims for protection in their Protection visa application forms Part B and Part C (the PVAs), their Personal Particulars for Assessment Form 80s (the Form 80s), and their written statements accompanying Part C of their PVAs (the Statements). [The first applicant] and [the second applicant] were interviewed about those claims by the delegate on 22 October 2015 (the Interviews). They attended a joint hearing with the Tribunal on 22 March 2018 that was adjourned and a resumed hearing on 30 August 2018 to give evidence and present arguments (the Hearing). They were assisted at the Interviews and Hearing by interpreters in the Chinese (Mandarin) and English languages. The Tribunal has reviewed the audio of the Interviews as well as the Hearing. Where relevant that evidence appears in this decision. It does not necessarily appear in the order in which it was given. On 28 October 2020, after reviewing all the material before it including the Interviews and Hearing, the Tribunal sent [the first applicant] and [the second applicant] invitations in accordance with s.424A of the Act, giving them an opportunity to comment on or respond to information that may be the reason or part of the reason for the Tribunal to affirm the decisions under review. It also sent them invitations to provide any additional information that they would like the Tribunal to consider in its review of their matters pursuant to s.424(2) of the Act. In line with the legislation, the Tribunal informed [the first applicant] and [the second applicant] that they had until 11 November 2020 to respond to its correspondence or to request an extension of time in which to respond. As at the date of this decision neither [the first applicant] nor [the second applicant] have responded to the Tribunal’s letters or requested an extension of time in which to respond.Background According to her PVA and Form 80, [the first applicant] was born on [Date] in Heilongjiang province, China and is [Age] years of age. She attended and completed [Primary School ] from [Year] to [Year] and [Middle School] from [Year] to [Year] and she speaks, reads, and writes Chinese. She then worked in [Workplace 1] from 1977 until 2002. [The first applicant] married [Mr A] in 1981 and there is one child of the marriage, [the second applicant] born on [Date]. From 2002 until 2012 she was the manager of [Company 1] and from 2012 to 2014 she was Chairman of [Company 2], a [Business 1] in Fengtai district, Beijing.

Decision

Reasons for decision

As they do not satisfy the criteria for a protection visa, [the first applicant] and [the second applicant] cannot be granted the visas.DECISIONThe Tribunal affirms the decisions not to grant the applicants protection visas.Mireya HylandMember

Ratio Decidendi

Legal Principle Established

There is no indication that both [the first applicant] and [the second applicant] are members of the family unit of a third person. While [the second applicant] is the child of [the first applicant]’s spouse, he does not meet the definition of [Mr A]’s ‘dependent child’ in r.1.12(1)(b) because it is clear from both [the first applicant]’s and [the second applicant]’s evidence about [Mr A]’s circumstances that [the second applicant] does not receive any of the relevant support from his father: r.1.05A. There is no claim that [the first applicant] and [the second applicant] are a member of anyone else’s family unit. The Tribunal finds that on the evidence provided by them, although they are mother and son, [the first applicant] and [the second applicant] are not members of the same family unit as defined in the Act and Regulations.Mandatory Considerations In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (DHA), and the country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, Country Information Report – China dated 3 October 2019, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE [The first applicant] and [the second applicant] made their claims for protection in their Protection visa application forms Part B and Part C (the PVAs), their Personal Particulars for Assessment Form 80s (the Form 80s), and their written statements accompanying Part C of their PVAs (the Statements). [The first applicant] and [the second applicant] were interviewed about those claims by the delegate on 22 October 2015 (the Interviews). They attended a joint hearing with the Tribunal on 22 March 2018 that was adjourned and a resumed hearing on 30 August 2018 to give evidence and present arguments (the Hearing). They were assisted at the Interviews and Hearing by interpreters in the Chinese (Mandarin) and English languages. The Tribunal has reviewed the audio of the Interviews as well as the Hearing. Where relevant that evidence appears in this decision. It does not necessarily appear in the order in which it was given. On 28 October 2020, after reviewing all the material before it including the Interviews and Hearing, the Tribunal sent [the first applicant] and [the second applicant] invitations in accordance with s.424A of the Act, giving them an opportunity to comment on or respond to information that may be the reason or part of the reason for the Tribunal to affirm the decisions under review. It also sent them invitations to provide any additional information that they would like the Tribunal to consider in its review of their matters pursuant to s.424(2) of the Act. In line with the legislation, the Tribunal informed [the first applicant] and [the second applicant] that they had until 11 November 2020 to respond to its correspondence or to request an extension of time in which to respond. As at the date of this decision neither [the first applicant] nor [the second applicant] have responded to the Tribunal’s letters or requested an extension of time in which to respond.Background