1617390 (Refugee)

[2019] AATA 5846

1617390 (Refugee) [2019] AATA 5846 (15 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1617390

COUNTRY OF REFERENCE:                  China

MEMBER:Denise Connolly

DATE:15 July 2019

PLACE OF DECISION:  Sydney

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

Statement made on 15 July 2019 at 11:06am

CATCHWORDS

REFUGEE – protection visa – China – non-appearance before the Tribunal – company use of inferior goods – kickbacks from supplier – suspicion of bribery – links with high-ranking official – beaten and threatened – unsubstantiated claims – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 438
Migration Regulations 1994 (Cth), Schedule 2

CASES

MIEA v Guo & Anor (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 19 September 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 17 June 2015. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.

3. There is a purported s.438 certificate dated 24 October 2016 which purports to certify that folio 40 should not be disclosed because it would be contrary to the public interest as the folio contains information relating to an internal working document and business affairs. The information in folio 40 records the interpreter service booking. It has nothing to do with any issues raised by the applicant or about the applicant’s case.  Having considered the purported s.438 certificate and the reasons given for why disclosure would be contrary to the public interest ‘because the aforementioned folios contain information relating to an internal working document and business affairs’, the Tribunal is not satisfied the reasons given properly identify a basis for public interest immunity. Accordingly the Tribunal finds the certificate dated 24 October 2016 is not valid.

4. On 21 June 2019, the Tribunal wrote to the applicant advising that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to appear before it on 11 July 2019 at 12:00PM to give evidence and present arguments relating to the issues arising in his case. The applicant was informed that if he did not attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable him to appear before it.  The invitation was sent to the applicant using the email address provided in connection with the review. The Tribunal also sent to the applicant SMS reminders about the hearing, 5 business days and one business day before the scheduled hearing.

5. The applicant did not attend the hearing at the scheduled date and time. Having reviewed the material before it, the Tribunal is satisfied that the applicant was properly invited to a hearing and the invitation was sent by email using the correct email address provided by the applicant. There is no evidence to suggest that the email transmission was unsuccessful. No postponement of hearing has been sought. No satisfactory reason for the non-appearance has been given. Accordingly the Tribunal has decided to proceed to make its decision on the evidence before it.

   CLAIMS AND EVIDENCE

6. When making the visa application the applicant provided the following information. He was born on [date] in Xinyang City, Henan, China. He is a citizen of China. He does not have the right to reside in any other country. He speaks Mandarin and is of Han ethnicity. He has recorded no religion. He married [in] September 1994 in [County 1], China. He and his wife have 2 [children]. His wife, children and parents reside in Xinji Town, Henan Province, China. He provided a copy of his Chinese passport issued [in] 2013 obtained through normal procedures. He completed middle school in China. Prior to travelling to Australia he was employed as a [Occupation 1] at [Company 1] in [City 1], Hebei Province. The applicant was granted a tourist visa [in] May 2012. He arrived in Australia [in] May 2012.

7. In a written statement attached to the visa application the applicant made the following claims. He commenced employment with [Company 1] in May 2009. In February 2012 he became a [Occupation 1]. He discovered that the quality of the company’s [goods] was worsening. As he was concerned about the quality and possible accidents, he raised the issue with his [superior] who told him to forget about it.  He became worried about accidents due to the low standard of [goods]. As [a responsible person], he would be responsible for accidents as he signed the [quality report]. He could not sleep as he worried [future accidents].  He raised the issue with his [superior] again. He was offered a pile of cash from [his superior’s] drawer, and told not to discuss the situation with anyone. He was astonished that his [superior] was trying to bribe him and he refused to accept the money. He had heard a rumour that the [superior] received kickbacks from [the supplier] and used low standard [goods] on purpose. He refused to accept the money and the [superior] threatened him and said, “You should have heard about my background. You will be dead if you are against me.” The applicant heard the [superior’s] [relative] was [high-ranking official] and very powerful.  In early October, he reported the [superior’s] use of low quality [goods] and the receipt of kickbacks, to the [relevant department] of [Company 1]. However the [superior] was not suspended after his report.

8. The applicant claims [in] October, four strangers surrounded him and beat him. After he fell to the ground, they kicked him and one took out a knife and warned him not to spread rumours in the future. He was then fired for poor performance. In November, he reported the manager to the [City 1] Procuratorate for suspicion of bribery. [In] December police came to his house, forcefully dragged him into a police car and took him to [City 1] Public Security Bureau where they threatened him and warned him to shut up in the future. They told him he could leave if he did not lodge any further reports. He refused and was detained for 7 days without informing his family.  On the day the applicant was released, the [superior] had called him and warned him that he should be mindful or he would not be able to leave the police station. He was frightened and worried that his reporting would harm his family. He thought the Chinese government would punish corrupt people, however he was naïve. He dares not live in China.

   CRITERIA FOR A PROTECTION VISA

9. 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.

10. 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.

11. 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).

12. 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.  

13. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nationality

14. The applicant claims to be a citizen of China and has provided to the Department a copy of his Chinese passport. In the absence of evidence to the contrary, the Tribunal is satisfied the applicant is a citizen of China. It finds that China is his receiving country for the purpose of assessing his claims. There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any other country for the purposes of the Act.

    Does the applicant have a well-founded fear of persecution?

15. The mere fact that a person claims a fear of persecution for a particular reason does not establish the genuineness of the asserted fear or that it is well founded. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself in as much detail as is necessary to enable the Tribunal to establish the relevant facts. The Tribunal is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all of the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)

16. The applicant has claimed to have worked as a [Occupation 1] in [Industry 1] and to have reported his [superior] for using substandard [goods], taking kickbacks, attempting to bribe the applicant and threatening the applicant. He has claimed the [superior] was connected to [a high ranking official] and very powerful. He has claimed that he was beaten and threatened, by strangers and the police, and that he was fired for poor performance.  He has claimed that he was detained for 7 days and on his release was so fearful that he dared not remain in China.

17. The applicant did not take the opportunity to give oral evidence at his Tribunal hearing despite the Tribunal making it clear that it could not make a favourable decision on the evidence before it. The Tribunal has not had an opportunity to test the veracity of his claims. In the Tribunal’s view, the applicant has merely made some written, unsubstantiated claims. He has provided no other supporting evidence to demonstrate that his written claims are reliable. On the basis of the material before it, the Tribunal is not satisfied the applicant has demonstrated that any of his claims are genuine. Accordingly the Tribunal does not accept that the applicant was employed [in Occupation 1] in [Industry 1] in China. It does not accept that he became aware that the company was using inferior [goods] or that he raised this issue with his [superior]. It is not satisfied that his [superior] tried to bribe him with cash or that he had heard rumours that his [superior] was receiving kickbacks from [the supplier]. It does not accept his [superior] threatened him that he should have heard of his background and he would be dead if he went against him. Nor does it accept that his [superior] was connected to [a high ranking official] and very powerful. As the Tribunal is not satisfied about any of these claims, it does not accept that the applicant reported the [superior’s] use of inferior [goods].

18. On the evidence before it the Tribunal is not satisfied that [in] October strangers surrounded him, beat him and warned him about spreading rumours. It is not satisfied that the applicant was then fired by his [superior] or that he reported the [superior] for suspicion of bribery. It does not accept that [in] December police came to his house, and took him to the PSB where he was threatened and warned. Nor does it accept that he was detained for 7 days. It is not satisfied he was threatened by his former [superior] or that he feared harm when he departed China. The Tribunal has formed the view the applicant has manufactured all of these claims. The Tribunal does not accept any of the applicant’s claims, or that he departed China because he feared harm, or that he fears harm in China.

19. Accordingly the Tribunal is not satisfied the applicant has a well-founded fear of persecution in China for reason of political opinion, imputed political opinion or for any other reason. The Tribunal is not satisfied there is a real chance the applicant would be persecuted for one or more of the reasons set out in the Act, and the real chance of persecution relates to all areas of China. Therefore, he does not meet the definition of refugee. Accordingly, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.

    Does the applicant meet the complementary protection criteria?

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

21. As indicated above, the applicant has failed to provide sufficient details regarding his claims. The Tribunal does not accept that his claims are reliable. As the applicant did not attend his hearing, the Tribunal has been unable to obtain further information about his claims, or to test their veracity. In view of the above findings and on the evidence before it, the Tribunal is not satisfied that the applicant suffered harm in China or that there is a real risk that he will suffer significant harm if he returns to China. On the evidence before it, 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. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.  

22. 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

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

    Denise Connolly
    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.

    …