1603620 (Refugee)

[2019] AATA 1749

1603620 (Refugee) [2019] AATA 1749 (11 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1603620

COUNTRY OF REFERENCE:                  China

MEMBER:Luke Hardy

DATE:11 February 2019

PLACE OF DECISION:  Sydney

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

Statement made on 11 February 2019 at 1:37pm

CATCHWORDS

REFUGEE – protection visa – China – religion – family member of Protestant Christian – complementary protection – assisting North Korean defectors – false passport – fear of arrest – people smuggling – unimpeded exit from China – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 36, 48A, 65, 424AA, 499
Migration Amendment (Complementary Protection) Act 2011
Migration Regulations 1994, Schedule 2

CASES

MIAC v SZQRB [2013] FCAFC 33
SZGIZ v MIAC (2013) 212 FCR 235

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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants are citizens of China. Passport and other evidence of their identities and nationality is on file.

3. [The Applicant] first arrived in Australia [in] May 2005 travelling on a South Korean passport under name of [an alias]. He lodged a protection visa application under that name on 29 June 2005. At the time protection visa applications and decisions could only be made on refugee grounds. [The Applicant’s] application was refused on 4 August 2005. He did not seek review of that application.

4. [The applicant’s partner] had previously arrived in Australia [in] February 2004 , also on a South Korean passport under a false identity. On 8 December 2011, she lodged a protection visa application that included herself, [the Applicant] and their son [named] who was born in [Australia] on [date]. [The applicant’s partner] identified herself as the main applicant. She included [the Applicant] and [their son] as “Part D” applicants with no claims of their own, meaning that the success of their protection visa applications depended on the outcome of hers.

5. From 24 March 2012, the Migration Amendment (Complementary Protection) Act 2011 amended the Migration Act 1958 to introduce a new criterion to allow for the grant of a Protection visa in situations that engage complementary protection obligations. Since then, protection visa applicants have first been assessed to determine if they are refugees under the Refugees Convention and relevant Australian law. If they are not found to be refugees, their claims have then been considered under complementary protection criteria.

6. Relevant to the current application, s.48A of the Act imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused.

7. [The applicant’s partner] was informed on 13 December 2011 that [The Applicant] was ineligible to be included as a valid applicant in her protection visa application due to his having already been the subject of a protection visa application that was determined on 4 August 2005. An unsuccessful attempt to have the bar on new applications ensued.

8. The delegate refused [the applicant’s partner’s] protection visa application on both of its grounds, refugee and complementary protection, on 12 February 2013. The decision included only her and [son]. The former Refugee Review Tribunal affirmed that decision that included only those two applicants on 28 April 2014.

9. However, the Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 has held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa. Essentially this means that [the Applicant] was eligible to have his protection visa application assessed on complementary protection grounds.

10. A delegate of the Minister accordingly assessed [the Applicant’s] protection visa application but refused it on 19 February 2016. Before making a decision, the delegate sought to draw to [the Applicant’s] attention the fact that he had not made any claims of his own in the original protection visa application in which [the applicant’s partner] was the main applicant. The delegate proceeded to a decision noting that [the Applicant] did not reply, but I note that he had given the Minister prior notice of a change of “address for service” and that the delegate appeared to overlook the updated information.

11. [The Applicant] sought review of the delegate’s decision in a review application lodged with the Tribunal on 17 March 2016. He included [the applicant’s partner] and son [named] as purported applicants in that review application, but they are not subjects of the 19 February 2016 decision under review and, in addition, they were already the subjects of merits review by the former Refugee Review Tribunal on 28 April 2014.

12. In the circumstances, I find that [the applicant’s partner] and son [named] are not valid applicants in [the Applicant’s] present review application. He is the only valid review applicant in the present matter.

13. [The Applicant] appeared before the Tribunal on 11 December 2018 and 7 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from [the applicant’s partner], appearing as a witness. [The Applicant] was accompanied by his adviser, a registered migration agent. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The issues

14. The main issue in this case is whether [the Applicant] is entitled to protection in Australia on complementary protection grounds. [The Applicant’s] reliability as a witness in this matter is also an issue.

15. For the following reasons, I have concluded that the decision under review should be affirmed.

    Claims

16. No substantive claims were made by or on behalf of [the Applicant] in [the applicant’s partner’s] protection visa application of 8 December 2011, except where he indicated that he had no religious beliefs. He adhered to that position in his evidence at the Tribunal hearing. He made no claims in connection with his post-SZGIZ eligibility to have complementary protection claims determined by the Minister’s delegate.

17. However, on 30 November 2018, [the Applicant] and [his partner] submitted short statements., [the applicant’s partner’s] summarising her claims about being a Protestant Christian and referring to the unsolved murder of a priest in her home town [named] [in] April 2016. She claimed that her family has been in Australia for thirteen years with their son having been born and commenced primary school here. Although [the Applicant] claims not to be Christian himself, it is relevant to his protection visa application that other members of his family claim to be Christians, as a risk of significant harm faced by two members of a family could conceivably affect to the third member of the same. 

18. [The Applicant’s] statement comprised claims not hitherto presented on any occasion or in any form. For example, even though they are claims about events back in 2004 and 2005, neither [the Applicant] nor [his partner] mentioned them in their 2011 application, even though, on the face of it, the issues now raised had the potential to affect affecting the protection of the whole family in the event of return to China.

19. Whereas he claimed in the original protection visa application form that his profession was “[an occupation 1]”, [the Applicant] claimed in his new statement that he was laid off in 200 and thereafter made his living as a “border trader”, his home town [named] lying on the bank of the river [in location]. He claimed that around 2004 one of his “Christian mates” came to him with two persons, a Chinese priest named [Father A] and a South Korean priest named [Father B] (which I understand to be a Chinese name). He claimed he was asked by these priests to help find the relatives of a North Korean who had defected (via China, apparently) to South Korea. He said he agreed to do so and soon found the relatives (in North Korea, he implied). He claimed they were all reunited on the Chinese side of the river in January 2005. He claimed that half an hour later, they all left the riverside and departed from [his home town]. He said that after they all left, he forgot about the whole affair until a month later when a “mate” telephones him and that something was wrong and that he needed to hide. He “mate” allegedly told him that the defectors were taken from [their town] to a town called [name] whence they were supposed to travel on to South Korea, except that [Father B] and the defectors were all detained by the Chinese police (PSB). [The Applicant] claimed in his statement that the defectors named him as an accomplice. I asked [the Applicant] when the trial took place and he said it was in February 2005. I put to him that the wheels of justice are not commonly known to move so swiftly in China in China, and asked him how this matter could have proceeded to a trial so quickly; in reply he said he did not know, and that he merely  heard about it from his family as he was away in Qingdao. I put to him on the basis of general knowledge that Chinese trials are often closed trials, making it hard for outsiders to know the details of what goes on during them. [The Applicant] did not rebut this, but said, “I’m not sure. Maybe my family found some connections.”

20. [The Applicant] claimed in his statement and at the hearing that [Father A] was stabbed to death “the next day” by North Koreans at the riverside. Going by his chronology, this would have been in February 2005. He claimed that his family told him about [Father B] being sentenced to “8 years life imprisonment [sic].” He said his “mate” went missing. He claimed in his statement that the PSB visited his family home a few times. He claimed that three or four people who looked to his mother like North Koreans also came to the family home. However, plainly inconsistent with this, he told me at the hearing that no North Koreans ever came to his mother. When I put to him that he was verbally contradicting one of his written claims, [the Applicant] said that did happen in February 2005, directly contradicting what he had said just moments before. He did not resolve the contradiction.

21. [The Applicant] said in his statement that after he left home he was summoned a few times by the PSB. However, he said these did not involve formal summons documents. He said the PSB just came to his house, asked where he was and told his family to tell him to go to the PSB station if he came back home.

22. I note that [the Applicant] entered Australia on a South Korean passport after having flown from China and having transferred for a week in [another country]. He told me the South Korean passport already contained a visa for Australia before he received it. I put to him that on this evidence the choice of the passport he used for travel to Australia was to a significant extent about being able to get into Australia and not necessarily about circumventing China’s exit security apparatus; in reply, he said, “Yes.” As discussed below, he did not need the South Korean passport to help him circumvent Chinese exit processes in 2005.

23. Whereas [the Applicant] has indicated in his claims that the Chinese authorities have implicated him in people smuggling and are seeking to prosecute him, I drew to his attention that the same Chinese authorities allowed him to leave China ([in] April 2005 on his own Chinese passport issued in [2005], after the alleged trial implicating him in the arguably transnational crime of people smuggling). [The Applicant] said the Chinese authorities did not let him leave the country, but a stamp in a passport that he copied to the original 2011 protection visa application form says otherwise. I put to [the Applicant] that the same Chinese authorities issued him with a new passport, the one he presented to identify himself at the hearing: it was issued in [Australia] on in [2015] and is valid for ten years and, far from being good for travel only back to China, it enables him, from the Chinese government’s point of view, to travel and reside anywhere he likes in the world. On this evidence, I put to [the Applicant] that contrary to the thrust of his claims, the Chinese government did not appear to mind what he did or where he went. In reply, he said that the new passport might just have been a perfunctory replacement of his old passport, thus claiming to have been issued a Chinese passport in the past I indicated to him that it might be significant his old passport had not been cancelled in the first place. At this point, [the Applicant] changed his claims about who he fears: he said that the North Koreans, exploiting their country’s proximity to his home, will harm him on return to China. I considered this claim in light of the confused and inconsistent evidence about people who looked to his mother like North Koreans having come looking for him at the family home.

24. I put to [the Applicant] that no harm had come to him in Qingdao, that he could relocate to Jilin’s capital and that he was not compelled to work as a border trader: in addition to claiming he had been [an occupation 1] he claims to have worked as a [different occupation] in a [company] until it downsized. Responding to this, he said he does not know anyone in those places. I put to him that he evidently came to, and began to settle in, Australia without knowing anyone here. He then reverted to the claim about fearing arrest from the Chinese authorities.

25. [The Applicant] called [his partner] as his witness. She told me that she did not mention any of these people smuggling claims because her original migration agent had only been interested in money and had told her that her own claims about religion were sufficient for a protection visa because she was the main applicant. [The Applicant] agreed with this testimony.

26. Under the protocols of s.424AA I put to [the Applicant] that, subject to recommends and responses he might give, the lack of any references to his claimed history in the 2011 protection visa application and also, in particular, his wife’s previous and present evidence would be the reason or part of part of the reason for refusing him a protection visa, due to such a factor with the potential significance of affecting his family greatly having been omitted. I asked [the Applicant] if he wished to comment or respond immediately or if he needed more time to do so, and he asked for a minute to collect his thoughts. After a pause, he said he does not have any religious beliefs. He also said that , regarding his people smuggling claims he and his wife had left matters to their original migration agent after paying him money. I put to [the Applicant] that, although he claims no religious beliefs himself, he did not appear even to claim to be potentially affected by how his wife might be treated in relation to her beliefs.

27. Under the protocols of s.424AA I put to [the Applicant] that, subject to comments and responses he might give, I might form a similar view on facts provided in the Refugee Review Tribunal decision in the matter of his wife and son, as the differently-constituted tribunal did in the Refugee Review Tribunal case 1303612 dated 28 April 2014, not least since [the Applicant] himself claimed no fear of significant harm with regard to his wife claiming to be a Christian, and that this would be a reason or part of a reason for refusing him a protection visa. Offered the choice, [the Applicant] opted to comment and respond immediately: he said that he did not bring his own claims to light until invited to provide additional information.

28. I asked [the Applicant] if he had anything else to add and he said he did not.

29. I invited [the Applicant’s] adviser to make closing comments and he said that [the Applicant’s] previous omission of the claims now before the Tribunal were the result of incompetence on the part of his family’s previous migration agent. The adviser went on to emphasise what he saw as the position [the Applicant] was putting at the hearing, being that he might not be facing significant harm from the Chinese authorities themselves, as they might merely be wanting him to help them with enquiries about their real problem, being the North Koreans who have been in hot pursuit of people involved in cross border trading and people movement and killing people in Chinese territory. I note, however, that in the course of the hearing [the Applicant] occasionally reverted to claiming fear of significant harm at the hands of Chinese authorities. The adviser also said that [the Applicant] might not be able to find a job if he relocates within China.

    Findings in relation to s.36(2)(aa) of the Act

30. Under s.36(2)(aa), a person may be entitled to 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.

31. Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).

32. "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.

33. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.

34. Essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Cruel or inhuman treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Degrading treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.

35. 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.

1. [The Applicant] does not claim to face a real risk of significant harm to himself, directly or indirectly, in the context of [his partner’s] claims about being a Christian. He says this is because he himself has no religious beliefs but, for want of evidence to the contrary, he is not even claiming that he faces a real risk of significant harm arising, even indirectly, from potential harm to his wife and child. I have nevertheless taken into account [the applicant’s partner’s] claims in her November 2018 statement, as submitted through [the Applicant] in the present application. However, on the evidence before me, as far as the issue of religion goes, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that [the Applicant] will suffer significant harm.

2. Looking at [the Applicant’s] claims about facing harm from Chinese authorities and/or North Korean agents in relation to his assistance to North Korean defectors, I note [the applicant’s partner’s] claim about a priest having been killed in 2016 and about no-one knowing who killed him. She appears to have made this claim purely in the expectation that she had standing in this matter, which she does not. I have nevertheless considered this claim in the context of [the Applicant’s] claims, since it is similar to what he said happened to [Father A] in February 2005 possibly, as claimed, at the hands of North Korean agents. Her information does not help [the Applicant], however, because I am not satisfied on the evidence before me that [the Applicant] is telling the truth about having gone into North Korea and identified and assisted the relatives of the defector described in his claims.

3. I find that I am not satisfied on the evidence before me as to why [the Applicant’s] claims about the defector issues were never brought to light prior to 2018, and I find the story far-fetched on its own. I find that [the Applicant’s] claim about having been a border trader is unsupported and that whereas he had had an opportunity to mention in the 2011 protection visa application that it was his last job in China, he did not do so. In any event, [the Applicant’s] evidence about what happened as a consequence of his claimed involvement in identifying and assisting North Korean defectors is inconsistent and confused. He is particularly unable to settle on whether he faces a real risk of significant harm from Chinese authorities who, contrary to what he claims, allowed him to leave China, evidently unimpeded, [in] April 2005. Meanwhile, I find on the evidence before me that the Chinese authorities have been and continue to be indifferent to his movements, as evidenced by the issuing of a passport without evident limitations, and, ultimately, I give this factor considerable weight in my decision. In addition, as I have pointed out, he has been inconsistent as to whether his mother ever encountered any suspected North Korean agents after he left China. Accordingly, on the evidence before me, I am not satisfied that [the Applicant’s] claims about the defectors and subsequent arrests and killing are truthful. As far as this evidence is concerned, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that [the Applicant] will suffer significant harm.

4. As to claims about difficulties [the Applicant] and his family,  specifically including his son [named], may face in having to adjust to life in China after so long in Australia, I am not satisfied on the evidence before me that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that [the Applicant] will suffer significant harm.

5. To sum up, on the evidence before me overall, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that [the Applicant] will suffer significant harm.   

   Accordingly, I conclude that [the Applicant] is not a person in respect of whom Australia has protection obligations under s.36(2)(aa).

   Other findings

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, he does not satisfy the criterion in s.36(2).

   DECISION

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

   Luke Hardy
   Member

   
   

   ATTACHMENT A

   RELEVANT LAW

8. 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.

9. 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).

10. 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.

11. 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’).

12. 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.