1517736 (Refugee) - [2018] AATA 4869

1517736 (Refugee) [2018] AATA 4869 (19 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1517736
COUNTRY OF REFERENCE:                  China
MEMBER:Mireya Hyland
DATE:19 October 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 19 October 2018 at 7:00pm
CATCHWORDS
REFUGEE – Protection visa – China – victim of physical attack – tortured by authority – subjected to inhumane treatment – fear of son of a powerful politician and head of underground society – owes compensation to customer – child’s best interest – credibility concerns – Ministerial intervention referred – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K-LA, 36, 65, 91R, 425, 499
Migration Regulations 1994 (Cth), r 1.12, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Sun v MIBP [2016] FCAFC 52
VSAI v MIMIA [2004] FCA 1602
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 on 14 December 2015 to refuse to grant the applicants, [the first named applicant] and his wife, [the second named applicant], protection visas under s.65 of the Migration Act 1958 (the Act). [The applicants] applied for the visas on 7 January 2015.The delegate refused to grant the visas on the basis that he was not satisfied that ‘there is a Refugee Convention ground for the harm feared as required by subsection 91R(1)(a)’ of the Act and ‘protection from an authority’ could be relied upon therefore, pursuant to s.36(2B)(b), there is no real risk of significant harm. That decision was provided to the Tribunal with the review application.
The issue in this case is whether [the applicant’s] claims are credible and, if so, whether there is a real chance of serious or significant harm in the foreseeable future. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
An applicant for a protection visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c) of the Act, that is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ or ‘complementary protection’ criteria, or is a member of the same family unit as such a person who holds a protection visa of the same class. In the case of persons who…

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 1517736 (Refugee)

Details

AGLC: 1517736 (Refugee) [2018] AATA 4869
Case: [2018] AATA 4869
Decision Date: 19 October 2018

CaseChat Overview and Summary

This matter concerned protection visa applications made by two Chinese citizens, who were the parents of a deceased Australian permanent resident. The applicants claimed they would suffer persecution and significant harm if returned to China, and that their wife would be implicated in their case. The Tribunal was required to determine whether the applicants met the criteria for a protection visa under the Act, specifically considering refugee and complementary protection obligations.

The Tribunal considered the applicants' claims regarding their fear of harm in China, including allegations of being victims of physical attack, torture, and inhumane treatment, as well as fear of a son of a powerful politician. It also examined the applicants' status as spouses and members of the same family unit for the purposes of the Act. The Tribunal had regard to relevant country information and ministerial directions concerning protection claims and the Minister's discretionary powers.

Ultimately, the Tribunal was not satisfied that there were substantial grounds for believing that the applicants faced a real risk of suffering significant harm as a necessary and foreseeable consequence of removal to China. Consequently, the Tribunal concluded that neither applicant met the refugee criterion under s.36(2)(a) or s.36(2)(aa), nor the alternative criteria under s.36(2)(b) or (c). Despite refusing the visa applications, the Tribunal referred the case to the Minister for consideration of intervention powers under s.417 of the Act, citing unique and exceptional circumstances, including strong compassionate grounds related to the applicants' Australian granddaughter, who was the child of their murdered son. The Tribunal specifically requested the Minister consider the best interests of the child, noting that the applicants' continued presence in Australia would maintain a vital family connection for her.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

On the basis of the evidence before it the Tribunal finds that [both applicants] are citizens of China, that China is their receiving country for the purposes of both the refugee and complementary protection criteria, and that they are outside their country of nationality for the purposes of s.5H(1)(a) of the Act. There is no evidence before the Tribunal to suggest that either [applicants] have the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.Claims and Evidence [The first named applicant] lodged a Part C protection visa application form for applicants who wish to submit their own claims for protection. [The second named applicant] lodged a Part D protection visa application form for a member of the family unit of a person submitting protection claims. She did not lodge a Part C application form. However, [the first named applicant] made clear claims on [the second named applicant’s] behalf that she will suffer, and fears she will suffer, serious or significant harm if returned to China. Therefore, the Tribunal has made findings on whether [the second named applicant] meets the criteria for s.36(2)(a) and (aa) as well as s.36(2)(b) and (c). [Both applicants’] protection claims are contained in Question 44 to Question 49 of [the first named applicant’s] protection visa application form. On 7 December 2015 [the first named applicant] attended an interview with the delegate (the interview). [Both applicants] came to a hearing with the Tribunal on 19 March 2018 to give evidence and present arguments (the hearing). They were assisted at the interview and hearing by an interpreter in the Chinese (Mandarin) and English languages. Where relevant the evidence from the interview and hearing appears in this decision. It does not necessarily appear in the order in which it was given. On 19 April 2018 the Tribunal wrote to [both applicants] under s.424A of the Act inviting them to comment on or respond to certain information which would, subject to their comments or response, be the reason, or a part of the reason, for affirming the decision under review. On 30 April 2018 [the first named applicant] sent the Tribunal a statutory declaration in response to its s.424A letter (s.424A response). [The first named applicant’s] comments and response are included below. In making its decision the Tribunal has considered all the information in both the Department of Immigration (the Department) and the Tribunal files. [The applicants] also provided the following documents to the Tribunal: a statutory declaration made by [the first named applicant] dated 12 March 2018; the birth certificate of [Miss C]; the death certificate for [Mr A]; [a bank’s] outward remittances from [the first named applicant] to [Mr A] and [Ms B] totaling AUD[amount] dated [in] November 2013 and various other [banking] transaction documents, some in Chinese, that [the first named applicant] claims show he is in debt; a title search for the property at Lot [number] in [a location] with tenants in common [Tenant one] (25/100), [Tenant two] (25/100) and [Ms B] (50/100) (the Australian property); a CT report relating to [the second named applicant’s] [dated] [in] September 2016 that includes a diagnosis of [a medical condition]; a referral from [a medical centre] for [the second named applicant] to obtain an opinion and management of her depression dated [in] March 2018; [a] form for five visits to psychologist [indicating] [the second named applicant] has poor sleep and low motivation due to depression from her son’s death, but no tendency towards suicide, self-harm, or harm to others; and an appointment card from [a] registered psychologist, for [a date in] May 2018 at [time].[The second named applicant]

Decision

Reasons for decision

For the reasons above, the Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to China, there is a real risk he will suffer significant harm. Conclusions For the reasons given above, the Tribunal is not satisfied that either [the first named applicant] or [the second named applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(a). Having concluded that [the first named applicant] and [the second named applicant] do not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that either [the first named applicant] or [the second named applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa). It follows that [the applicants] are also unable to satisfy the criteria set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.Ministerial Referral Having regard to [the applicants’] circumstances, and having considered the ministerial guidelines relating to the Minister’s discretionary power under s.417 of the Act set out in PAM3: Minister’s guidelines on ministerial powers (s351, s417 and s501J) (the Guidelines), the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention. The Tribunal believes this case involves a unique or exceptional circumstance, such as those described in Section 4 of Guidelines, and so should be referred to the Minister for possible consideration of the use of his intervention powers. There are strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm to an Australian citizen or an Australian family unit. While these compassionate circumstances do not bring Australia’s obligations under the Convention on the Rights of the Child into direct consideration, the Tribunal would request that the Minister nonetheless consider the best interests of the [age] year old child, [Miss C]. [The applicants’] only child, an Australian permanent resident, was brutally murdered in Australia and his only child, an Australian citizen living in Australia with her Australian mother, is their only grandchild. Their son’s death has understandably had a devastating effect on [the applicants] and they obviously find relief from their grief with [Miss C]. However, more importantly, despite her young age there is no doubt that the violent death of her father will also have a difficult and longstanding effect on [Miss C]. Having a strong and supportive family unit is an essential part of a child’s development. The Tribunal has no reason to doubt that [Miss C] will receive this from her mother, but strong familial bonds to both parents are important to long term well-being. [The applicants] are now [Miss C’s] only significant connection to her father, particularly since his early death means her parent’s marriage was comparatively short. Their removal from Australia may mean that she is separated from them, and any significant connection to her father or his family, permanently. The Tribunal believes that continued access to her paternal grandparents as she gets older is in [Miss C’s] best interest. It asks that the Minister consider maintaining this family unit to provide [Miss C] with the opportunity to include in her stable, nurturing environment at least some relationship with her father through his parents going forward into the future.

Ratio Decidendi

Legal Principle Established

Subsections 36(2)(b) and (c) specify alternative criteria for non-citizens in Australia who are members of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also stipulates that ‘member of the family unit’ of a person has the meaning given by the Migration Regulations 1994 (the Regulations) for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include a spouse. The Tribunal is satisfied that [the applicants] are spouses.Mandatory Considerations 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 - Refugee Law Guidelines and PAM3 Refugee and humanitarian - Complementary Protection Guidelines. It has also taken into account the relevant country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, Country Information Report – China dated 21 December 2017, to the extent that it is relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE [The applicants] arrived in Australia as the holders of Subclass 600 Visitor visas. [The first named applicant] arrived [in] October 2014 followed by his wife [in] November 2014. The purpose of their visit was the murder of their son, [Mr A], [in] September 2014. [Mr A] is survived by his wife, [Ms B], and his now [age] year old daughter, [Miss C]. In his protection visa application [the first named applicant] claims that if he goes back to China he will be subjected to persecution and significant harm and his wife ‘will be implicated by my case’. They are represented by a registered migration agent.Nationality On the basis of the evidence before it the Tribunal finds that [both applicants] are citizens of China, that China is their receiving country for the purposes of both the refugee and complementary protection criteria, and that they are outside their country of nationality for the purposes of s.5H(1)(a) of the Act. There is no evidence before the Tribunal to suggest that either [applicants] have the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.Claims and Evidence [The first named applicant] lodged a Part C protection visa application form for applicants who wish to submit their own claims for protection. [The second named applicant] lodged a Part D protection visa application form for a member of the family unit of a person submitting protection claims. She did not lodge a Part C application form. However, [the first named applicant] made clear claims on [the second named applicant’s] behalf that she will suffer, and fears she will suffer, serious or significant harm if returned to China. Therefore, the Tribunal has made findings on whether [the second named applicant] meets the criteria for s.36(2)(a) and (aa) as well as s.36(2)(b) and (c).