1607630 (Refugee)

[2018] AATA 5645

1607630 (Refugee) [2018] AATA 5645 (17 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1607630

COUNTRY OF REFERENCE:                  China

MEMBER:Penelope Hunter

DATE:17 December 2018

PLACE OF DECISION:  Sydney

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

Statement made on 17 December 2018 at 4:27pm

CATCHWORDS

REFUGEE – protection visa – China – corruption – discrimination in allocation of homestead land – fear of serious harm – fear of persecution – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5(H), 5(J), 5K-LA, 36, 65, 426A, 499

Migration Regulation 1994, Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191 
Prasad v MIEA (1985) 6 FCR 155

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 20 May 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, applied for the visa on 20 March 2015.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.  

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 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

8. 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.

   CLAIMS AND EVIDENCE

9. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.

   Primary Application

10. The applicant is a [age] year old male from Langfang, Hebei province, China.  He is a Chinese citizen, of Han ethnicity. He completed [number] years education in China. He is married and his wife and children are living in China.

11. The applicant holds a PRC passport, issued [in] 2014, which expires on [in] 2024.  He initially arrived in Australia [in] December 2014 on a [temporary] visa, and then departed Australia [in] December 2014. He subsequently returned to Australia [in] January 2015 and lodged the application under review for a Protection visa on 20 March 2015.

12. The applicant’s substantive claims were set out in a two page statement that was submitted with his Protection visa application, as follows:

    i.Due to the fact that he reported corruption of a local officer he was persecuted by officials in China and in despair he came to Australia in 2015.

    ii.In his village the local policy was that male teenagers were eligible to apply for a homestead and they must wait in line for an allocation. Due to corruption in his village he was not allocated a homestead.

    iii.The officer of his village, [Mr A] bribed the villagers for votes during the local election to obtain his position. He then took advantage of his power. In order to gain back the money he had spent be elected he controlled and monopolised the homestead land. Some villagers would bribe [Mr A] from 50000 to 10000 yuan in order to obtain an allocated homestead quickly.

    iv.The applicant did not bribe [Mr A], and his name did not appear on the homestead allocation list for a long time. He reached almost [age] without an allocation.

    v.The applicant became worried and reported [Mr A] to the superior government. [Mr A] was not happy with the applicant’s report but had to resolve the issue when he was confronted by the superior government. The applicant was allocated a homestead but it was in a remote area with no basic community facilities or transportation.

    vi.The applicant went to [Mr A]’s office in October 2014 and asked him why he had allocated such a remote homestead, and he just sneered and told the applicant if he wanted a better homestead he must pay at least 5000 yuan. The applicant was angry and confronted [Mr A] about making a profit from innocent villagers. On hearing the applicant’s words, [Mr A] asked his subordinates to beat the applicant and kick him out of the office. The applicant was threatened that it was already a mercy for a homestead to be allocated to him, and if he did not accept the land, it would be considered that he gave up the allocation and he would have to wait in line again.

    vii.The applicant went home and wrote a report to the relevant government department in Langfang as he wanted to expose the corruption of [Mr A]. Due to the scheduled holiday he then came to Australia and returned to China four days later.

    viii.When he returned from his holiday, [Mr A] knew that the applicant had made the report, and because he had a friend in the local government he silenced the report. [Mr A] and his subordinates also went to the applicant’s home frequently and forced him to explain his report in a threatening way. The applicant realised that he was being monitored as they were afraid that he would go to Beijing to petition.

    ix.The applicant was worried that [Mr A] would take revenge on his family and because his [temporary] visa had not expired he planned to seek asylum in Australia.

    x.He has heard from his wife that [Mr A] still continued to let his subordinates make trouble at his house, and public threats have been made that if he appeared in the village a simple car accident could remove him very easily.

13. The applicant was invited to attend an interview with the Department on 19 May 2016 to discuss his claims.  The delegate has set out the following relevant information provided by the applicant in their decision;

    i.The applicant obtained a [temporary] visa for his initial trip to Australia [in] December 2014 and departed [in] December 2014. He claimed not to know the reason for applying for a [temporary] visa to come to Australia, and the agent had applied for him.

    ii.The applicant had attended [events] in Australia.

    iii.The applicant applied for a homestead in 2007 when he turned [age]. The homestead was a plot of land given to male villagers at that age.

    iv.He had been allocated a homestead in August 2014.

    v.He wrote a second letter of complaint [in] December 2014.

    Decision under review

14. In a decision dated 20 May 2016 the delegate considered that the applicant had made a valid visa application but found that the applicant did not provide detail or evidence to substantiate any of the central events of his claims, he had merely made assertions similar to his brief generalised statement and there were several discrepancies and inconsistencies between the applicant’s verbal testimony and written statement. It was found that Australia did not have protection obligations with respect to the applicant, under either the Refugees Convention or under the complementary protection provisions of the Act.

    Review application

15. The applicant has submitted a copy of the delegate’s decision with his application for review, but no further information.

16. On 15 August 2018, the Tribunal wrote to the applicant and advised that his application was being prepared for allocation to a member, which may result in a hearing being scheduled. The applicant was invited among other things to submit any material that may be relevant to the review and to advise whether there were any reasons he may not be able to attend a hearing in the coming months. The Tribunal received no response to this letter.

17. On 16 November 2018, after considering the material before it, the Tribunal decided it was unable to make a favourable decision on this information alone. On the same date, an invitation was emailed to the applicant inviting him to appear at a hearing before the Tribunal on17 December 2018. The invitation explains the purpose of the hearing is for the applicant to give evidence and present arguments relating to the issues arising in his case. The details as to the date, time and place of the hearing are included in the hearing invitation. The hearing invitation also advises the applicant that if he is unable to attend the hearing he should advise the Tribunal. It also explains that if he does not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it, or it may dismiss the applicant for review without any further consideration of the application or the information before it.

18. On 18 November 2018, the Tribunal received an email from the applicant, attaching the Response to Hearing Invitation form, signed by the applicant and confirming that he would take part in the hearing.

19. The applicant did not appear at the hearing at the prescribed time and place. No communication or correspondence has been received from the applicant either to seek an adjournment or to explain his failure to appear. Other than the Response to Hearing Invitation form, no further submissions of any kind have been received from the applicant in relation to his protection claims and the application under review. In these circumstances pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. The issue in this case is whether the applicant satisfies either of the protection criteria. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

21. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

22. The applicant’s two page written claims are extremely brief, and the oral evidence given to the delegate, and discussed in their decision, was found in significant parts to have inconsistency and contradiction. As the Tribunal advised the applicant in the hearing invitation, it is unable to make a favourable decision on the information before it. The applicant’s claims for protection are extremely vague, generalised and lacking in detail.

23. As the applicant did not attend the hearing, the Tribunal was unable to obtain further details of his claims and to test their veracity. If the applicant attended the hearing, the Tribunal would have asked him for more information about the requirements of the allocation of a homestead, for details of his complaint about [Mr A], and why he had waited almost 10 years to complain. The Tribunal would have sought further details about the complaint he lodged, including where he lodged the complaint, the response to the complaint and the substance of his claimed second complaint.The Tribunal would have discussed with the applicant country information about corruption in China.[1] Specifically the Tribunal noted that since the time of his departure the Chinese government’s tolerance of corruption has changed significantly. Under the current leadership a nation-wide anti-corruption campaign has been underway since 2013 which has resulted in a large number of arrests and expulsions from the party of people in very senior positions. The country information indicates the climate for reporting these matters would be even more receptive than the applicant’s experience in the past

    [1] "DFAT Country Information Report - China 21 December 2017", Department of Foreign Affairs and Trade, 21 December 2017, CISEDB50AD7983 at 2.22

24. If the applicant attended the hearing, the Tribunal would have discussed with him the details of the confrontation with [Mr A] and the precise details of any threats that were made to the applicant, whether he reported this to the Police and, if so, the result of his complaint to the Police. The Tribunal would have ascertained whether the applicant or his family had suffered any harm and why he left his family, including his wife and small children in China and came to Australia when threats had been made against. The Tribunal would have found out why he thinks he is now in danger if he returns to China and discussed relocation with him.

25. If the applicant attended the hearing, the Tribunal would have discussed with him the reasons for earlier visit to Australia. The Tribunal would also have ascertained the reasons for him applying for a [temporary] visa, attending [events] in Australia, and remaining only 4 days, when he claims it was a [holiday].

26. Through the hearing which was offered to him, the applicant has been given an opportunity to address the findings of the delegate, and to satisfy the Tribunal in relation to his claims. However, the applicant has failed to avail himself of that opportunity. In these circumstances, and having regard to all of the evidence, the Tribunal is not satisfied that he is of adverse interest to [Mr A], his subordinates, any Chinese authority or anyone else. On the limited evidence before it, the Tribunal is not satisfied that he left China for the reasons claimed or fears returning to China for the reasons claimed. Taking into account the claims for protection the applicant made, set out above, singly or cumulatively, or in any combination, the Tribunal does not accept that he has suffered serious or significant harm in China or that there is a real chance that he will suffer serious harm or a real risk that he will suffer significant harm if he returns there.

27. The Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Nor is the Tribunal satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a China, there is a real risk that the applicant will suffer significant harm.

28. 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).

29. 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).

30. 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

31. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Penelope Hunter
    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.

    …

    
    

On taking office in 2013, President Xi Jinping launched a nation-wide anti-corruption campaign promising to catch officials of both high and low rank. The crackdown has caught over 1,800 officials, including 182 officials ranked at or above the deputy provincial or deputy ministerial level. The campaign has led to the arrest, expulsion from the Party or conviction for corruption of 1,130 officials (including 139 senior officials). Ousted senior officials include provincial Party secretaries, former generals, and former Politburo Standing Committee member Zhou Yongkang. Targets include state-owned enterprise bosses and officials who have fled China with large sums of public money. The Central Commission for Discipline Inspection (CCDI) oversees corruption investigations of Party members, and internal Party supervision. The CCDI has expansive powers to investigate, seize evidence and detain any Party official for months without a warrant. The CCDI operates in secret and outside the formal legal system as a Party justice mechanism, with the power to expel members from the Party. After expulsion of a member, it often transfers its investigations to the court system where officials have received lengthy prison sentences. Conviction rates for corruption cases, as with all criminal cases, are close to 100 percent. Chinese authorities have announced plans to establish in 2018 a new national anti-corruption watchdog, the ‘National Supervision Commission’, which would bring anti-corruption and prosecutorial activities of party and government organs under one agency.