1602215 (Refugee)

[2019] AATA 4251

1602215 (Refugee) [2019] AATA 4251 (29 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1602215

COUNTRY OF REFERENCE:                  China

MEMBER:Paul Millar

DATE:29 April 2019

PLACE OF DECISION:  Sydney

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

Statement made on 29 April 2019 at 3:31pm

CATCHWORDS
REFUGEE – protection visa – China – no response to Tribunal communication – one-child policy – threat of forced sterilisation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 36, 65
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).  The applicant, who the Tribunal finds to be a citizen of China, applied for the visa on 1 December 2014 and the delegate refused to grant the visa on 22 January 2016.[1] On 23 February 2016, the applicant applied to the Tribunal for a review of the delegate’s decision. 

   [1] The Tribunal's finding on citizenship is based on copies of pages from the applicant's Chinese passport which appear at folio 25 of the Department file.

2. By letter dated 25 February 2019, the Tribunal invited the applicant to give oral evidence and present arguments at the hearing to take place on 4 April 2019.  In this letter, the Tribunal advised the applicant that if he did not attend the hearing and a postponement was not granted, the Tribunal would make a decision on his case without further notice.  The Tribunal’s letter was sent by email to an address that the applicant nominated as the address at which he wished correspondence about his review application to be sent.[2]  In addition, on 28 March and 3 April 2019, the Tribunal registry sent ‘SMS’ messages to the applicant’s telephone, at the number he specified in his review application form, reminding him of the date and time that his hearing would take place.

   [2] See Case Note 21358784 at folio 23 of the Tribunal file recording that, on 12 January 2018, the applicant telephoned the Tribunal Registry and specified an email address, requesting that correspondence be sent by email to that address.

3. The applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear.  No further communication was received from him.  He has not contacted the Tribunal to explain his non-attendance or to request that the hearing be rescheduled. The Tribunal is satisfied that the applicant was invited to appear before the Tribunal and that the invitation was sent in accordance with the Act.  In these circumstances, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

   RELEVANT LAW

4. 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.

5. 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).

6. 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.

7. 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’).

8. 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 (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   FINDINGS

9. For the following reasons, the Tribunal concludes that the decision under review should be affirmed.  According to his evidence to the Department, the applicant’s protection claims are based on the following account of events.[3]  A few years after giving birth to their first child, the applicant’s wife became pregnant for the second time.  The applicant and his wife understood that, in the circumstances, to have more than one child, they would have to pay a large sum of money to local family planning officials.  The applicant and his wife could not afford to pay that amount and so the applicant’s mother took his wife to stay at the home of a relative where they intended that she would secretly give birth.  Subsequently, family planning officials telephoned the applicant and advised him that his wife was in hospital to undergo an abortion.  The applicant went to the hospital and took his wife home. At that time, he was told that family planning officials wanted to force him to undergo a sterilisation operation. The applicant received letters from the officials advising him of the same. To avoid the family planning officials, the applicant went to another area where he remained living until obtaining a visa to come to Australia in June 2014.

   [3] The applicant's evidence to the Department comprises the contents of his protection visa application forms; his written statement lodged with his protection visa application and his evidence at his interview with the delegate for which there is an audio recording on the Department file and to which the Tribunal has listened.  The Tribunal also had access to the Department file relating to an application made by the applicant for a student visa to come to Australia.  The information contained in that file is not relevant to the basis on which this review has been determined. 

10. The Tribunal has carefully considered the applicant’s evidence, but, in the absence of a hearing and without the opportunity to assess his credibility, the Tribunal cannot be satisfied that the account of events on which the applicant’s protection claims are based is true.  In addition, there is insufficient detail in the applicant’s evidence to the Department as to what level of interest family planning officials have taken in him since he left China, now almost five years ago.  This is an important issue because, in the decision to refuse the application, the delegate referred to country information to the effect that family planning laws in China have changed to allow the birth of a second child.  On that basis, the delegate found that the applicant would not be pursued by family planning officials to undergo sterilisation.  Although the delegate did raise this country information with the applicant at the interview, to properly determine whether there is a real chance that the applicant will suffer serious harm at the hands of family planning officials, the Tribunal needed to question the applicant in more depth about this issue and as to what interest family planning officials have shown in apprehending him since he left China. 

11. Accordingly, for all of these reasons, the Tribunal is unable to be satisfied that the applicant holds a well-founded fear of persecution based on any Convention ground. For the same reasons, the Tribunal is also unable to be satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to the receiving country, China, there is a real risk that he will suffer significant harm.

    CONCLUSIONS

12. 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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

13. 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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

14. 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

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

    Paul Millar
    Member