1605023 (Refugee)

[2018] AATA 3885

1605023 (Refugee) [2018] AATA 3885 (28 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1605023

COUNTRY OF REFERENCE:                  China

MEMBER:Linda Symons

DATE:28 September 2018

PLACE OF DECISION:  Sydney

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

Statement made on 28 September 2018 at 11:02am

CATCHWORDS

REFUGEE – Protection visa – China – Secondary applicant – No protection claims made – Applicant included on wife's application for protection – Member of same family unit – Original application withdrawn – Intention to collect outstanding wages and money – Decision under review affirmed 

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 364, 428, 438, 499

Migration Regulations 1994 (Cth), Schedule 2

CASES

MZAFZ v MIBP [2016] FCA 1081

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 on 15 March 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of China, first arrived in Australia on 10 September 2012 as the holder of a [temporary] visa. He was accompanied by his wife who was also granted a [temporary] visa as his dependent. His [temporary] visa was valid until 30 May 2015. He departed Australia on 25 April 2014 and returned on 25 May 2014. On 28 May 2015, he was granted a Bridging visa in association with his wife’s application for Protection visas.

3. On 27 May 2015, the applicant’s wife lodged an application for Protection visas with the Department of Home Affairs (the Department). She included the applicant and their son (who was born in Australia on [date]) in her application as members of her family unit. On 15 March 2016, the Department refused to grant the visas on the basis that the applicant’s wife was not a person in respect of whom Australia had any protection obligations. On 12 April 2016, the applicant’s wife applied to the Tribunal for a review of that decision.

4. On 8 May 2017, the Tribunal received a Notice of Withdrawal form signed by the applicant’s wife on behalf of herself and her son. The applicant was not included in the Notice of Withdrawal despite the fact that he was a secondary applicant and had not made any claims in his own right.

5. On 23 May 2017, the applicant was invited to attend a hearing before the Tribunal on 10 July 2017. On 2 June 2017, he was informed that the hearing was postponed. His case was subsequently constituted to a different Member on 1 August 2018. On 15 August 2018, he was invited to attend a hearing on 6 September 2018. He attended the hearing on 6 September 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The Presiding Member authorised Tribunal Officer, [named], pursuant to s.364 and s.428 of the Act, to take evidence from him. The hearing was thereafter adjourned to 27 September 2018.

6. The applicant appeared before the Tribunal again on 27 September 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. The issues that arise on review are whether Australia has protection obligations to the applicant under the refugee criterion or under the complementary protection criterion.

   CRITERIA FOR A PROTECTION VISA

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, he or she 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 because the person is a refugee.

10. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

11. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

12. 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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

13. 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 AND FINDINGS

14. In her application for Protection visas filed on 27 May 2015, the applicant’s wife made claims for protection on the basis of being a member of an underground Christian Church in China. She included the applicant and their son as members of her same family unit. The applicant did not make any claims for Protection in his own right. No claims for protection were made on behalf of their son.

15. The applicant’s wife attended an interview with the Department on 14 March 2016. During that interview, she stated that her written claims for protection were fabricated. She stated that she is a Christian and does not fear returning to China for this reason. On 15 March 2016, the Department refused her application for Protection visas. On 12 April 2016, she applied to the Tribunal for a review of that decision. The applicant and their son were included in the application for review.

16. On 8 May 2017, the applicant’s wife withdrew her application for review and also withdrew her son’s application for review. The records of the Department indicate that they departed Australia on 13 May 2017 and their Bridging visas have now ceased.

    Receiving country

17. The applicant claims to be a citizen of China and has provided copies of his Chinese passport to the Department and the Tribunal. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of China. The Tribunal finds that China is the receiving country for the purpose of assessing his visa application.  

    Third country protection

18. The Tribunal finds that the applicant is outside his country of nationality. There is no evidence before the Tribunal to suggest that he has a right to enter and reside in any country other than his country of nationality.

    Assessment of application

19. The applicant has not made any claims for protection to the Department or to the Tribunal.

20. The applicant attended a hearing before the Tribunal on 6 September 2018. During that hearing, he gave evidence that he first came to Australia in September 2012. He stated that he and his wife returned to China in 2014 to visit their daughter who they had left with his parents in law. He stated that after they returned to Australia in April or May 2014 his wife became pregnant and gave birth to their son in Australia. He stated that his wife and their son returned to China in May 2017 and his wife now resides with their daughter and son in Shanchen town. He stated that Shanchen town is safe for him, his wife and their children. He stated that he is a Christian and did not suffer any harm in China because of his religion. He stated that he does not think there is anyone who would harm him if he returned to China. He stated that he did not know of any reason why he could not return to China.

21. The applicant attended an adjourned hearing before the Tribunal on 27 September 2018. During that hearing, he gave evidence that his wife and son went to China on 13 May 2017 because his parents in law are getting old and are no longer able to take care of his daughter. He stated that he did not return to China with them because he wanted to stay in Australia for a few more years. He stated that his migration agent assisted him to do so by not withdrawing his application for review.  He stated that he remained in Australia so that he can continue to financially support his wife and children. He stated that he also wanted to collect some outstanding wages owing to him. He stated that, in addition, he has lent “tens of thousands of dollars” to a friend and that money has not been repaid to him. He stated that his friend has promised to repay the money by May or June 2019. 

22. The applicant stated that he does not fear persecution in China and there is no reason why he cannot return to China. He stated that he likes the lifestyle and environment in Australia. He stated that he is still hoping that his wife and children can return to Australia. He stated that it is his hope that his wife, daughter and son will obtain Visitor visas and travel to Australia by Christmas 2019. He stated that if the money owing to him is repaid they can spend a month together and it would be a perfect ending for him.  

23. The Tribunal raised as an issue with the applicant the fact that he did not satisfy the requirements for a Protection visa. He responded that he had nothing to say. He then requested that the Tribunal allow him to stay in Australia for another 1 ½ years so that he could deal with everything and return to China.

    Section 438 Certificate

24. The Tribunal informed the applicant that his file from the Department contained a Certificate under s.438 of the Act and it related to the non-disclosure of information contained on folios 98 and 113 in the file. The Tribunal informed him that the Certificate was issued on the basis that it was contrary to public interest to disclose the information because it relates to internal working documents and business affairs. The Tribunal informed him that the information subject to the s.438 Certificate relates to a checklist and application and identification test details. The Tribunal noted that the documents were not relevant to the issues before it and, in its view, the Certificate was not valid. The Tribunal invited him to make submissions on the validity of the s.438 Certificate. He declined to do so.

25. In light of the Federal Court decision in MZAFZ v MIBP[1], which considered a s.438 certificate with similar wording, the Tribunal finds that the s.438 Certificate is not valid as it does not specify a reason that could form the basis for a claim to public interest immunity.

    Findings

    [1] MZAFZ v MIBP [2016] FCA 1081.

26. Having considered all the evidence, the Tribunal accepts that the applicant was born on [date] at Meihekou in Jilin Province in China. The Tribunal accepts that he was married on [date] March 2006 and that he has a daughter and son.

27. The Tribunal accepts that the applicant and his wife first came to Australia on 10 September 2012 as holders of [temporary] visas. The Tribunal accepts that they left their daughter in the care of her maternal grandparents in China. The Tribunal accepts that they returned to China in 2014 to visit their daughter. The Tribunal accepts that their son was born in Australia on [date]. The Tribunal accepts that the applicant’s wife and son returned to China on 13 May 2017 and that his wife and children now reside in China.

28. The Tribunal accepts that the applicant has been working as a [occupation] in Australia. The Tribunal accepts that he has been financially supporting his wife and children and continues to do so. The Tribunal accepts that he did not return to China with his wife and son on 13 May 2017 because he wished to continue to work in Australia and financially support his family. The Tribunal accepts that he also remained in Australia to collect some outstanding wages and money that he lent to a friend. The Tribunal accepts that he did not withdraw his application for review, on the advice of his migration agent, as he wished to continue to reside and work in Australia whilst on a Bridging visa.

29. The Tribunal accepts that the applicant is a Christian. The Tribunal accepts that he did not suffer any persecution in China for this reason and that he has no fear of persecution for this reason if he returns to China. The Tribunal accepts that he does not fear persecution for any reason set out in s.5J(1)(a) of the Act if he returns to China. On the evidence before it, the Tribunal is not satisfied that he is at risk of serious harm or significant harm for any reason if he returns to China now or in the reasonably foreseeable future.

30. The Tribunal accepts that the applicant would prefer to live in Australia than in China. The Tribunal accepts that he has a plan for his wife and children to obtain Visitor visas and join him in Australia.

    Does Australia have protection obligations to the applicant under the refugee criterion?

31. Having considered all the evidence and in view of the findings above, the Tribunal finds that there is no real chance that the applicant will suffer serious harm for any reason set out in s.5J(1)(a) of the Act if he returns to China now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.

    Does Australia have protection obligations to the applicant under the complementary       protection criterion?

32. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.

33. In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm if he returns to China now or in the reasonably foreseeable future.

34. Having considered all the evidence and in view of the findings above, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to China now or in the reasonably foreseeable future.    

35. Accordingly, the Tribunal is not 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 he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that he does not satisfy the criterion in s.36(2)(aa) of the Act.

    CONCLUSION

36. 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 s.36(2)(a) or s.36(2)(aa) of the Act.

37. There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a Protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.

    DECISION

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

Linda Symons
          Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:

(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)that is not inconsistent with Article 7 of the Covenant; or

(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)that is not inconsistent with Article 7 of the Covenant; or

(b)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 Covenant.

…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)for the purpose of obtaining from the person or from a third person information or a confession; or

(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)for the purpose of intimidating or coercing the person or a third person; or

(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but 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 Covenant.

…
receiving country,  in relation to a non-citizen, means:

(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5J Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note: For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note: For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K  Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L  Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA  Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

..

36Protection visas – criteria provided for by this Act

…

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)    the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…