1618573 (Refugee)

[2019] AATA 5529

1618573 (Refugee) [2019] AATA 5529 (14 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1618573

COUNTRY OF REFERENCE:                   China

MEMBER:Linda Symons

DATE:14 August 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 14 August 2019 at 9:38am

CATCHWORDS

REFUGEE – protection visa – China – petition sent to city government – arrested – held in detention – claim of harassment and extortion – did not attend hearing – could not test veracity of claims – decision under review affirmed     

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 5K-LA, 36, 65, 499
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 7 October 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of China, first arrived in Australia [in] March 2016 as holders of subclass 600 Visitor visas that were valid until 8 April 2016. They departed Australia [in] March 2016. They returned to Australia [in] March 2016. On 12 May 2016, they were issued Bridging visas in association with their application for Protection visas.

3. The applicants applied to the Department of Home Affairs (the Department) for Protection visas on 8 April 2016. The delegate refused to grant the visas on 7 October 2016 on the basis that they are not persons in respect of whom Australia has protection obligations. They applied to the Tribunal on 7 November 2016 for a review of that decision.

4. On 2 July 2019 2019, the Tribunal wrote to the applicants and informed them that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited them to appear before it on 13 August 2019 at 9.00am to give evidence and present arguments relating to the issues arising in the case. The letter informed them that if they did not attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable them to appear before it or may dismiss the application for review without any further consideration of the application or the information before it. The letter was sent to the first named applicant’s email address on 2 July 2019. The Tribunal did not receive any notification that the email had not been delivered. The Tribunal did not receive the Response to Hearing Invitation form as requested. 

5. On 6 August 2019, the Tribunal sent the applicants an SMS message to the first named applicant’s mobile telephone reminding them of the hearing on 13 August 2019. On 7 August 2019, the Tribunal received a message that the delivery of that message failed. On 12 August 2019, the Tribunal sent another SMS message to her mobile telephone reminding them of the hearing on 13 August 2019. On 13 August 2019, the Tribunal received a message that the delivery of that message failed.

6. The applicants did not attend the hearing scheduled on 13 August 2019 at 9.00am. They did not contact the Tribunal to explain their non-attendance at the hearing or to seek a postponement of the hearing. In these circumstances, the Tribunal has decided to proceed to make a decision on the review.

7. The issues that arise on review are whether the applicants are owed Australia’s protection under the Refugee Convention or 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. The first named applicant’s claims in her application for Protection visas are summarised as follows:

    ·She and her husband ran a farm in their hometown and business was good.

    ·A [City 1] developer, [Mr A], (who was a [details deleted]) wanted to buy their farm. The market value of their farm was more than [amount] yuan. They were offered [less than half of this amount] for it and strongly disagreed.

    ·[In] December 2015, a “group of gangs” went to “smash the farm”.  They were threatened that if they acted against [Mr A] they were dead. She telephoned the Police who arrived after a long time. They did not stop the gangs and told her “Your family is cult, you deserve the smashing”.

    ·Her son in law is an underground Catholic and suffered persecution because of his beliefs. [In] September 2015, her family was subject to constant harassment, monitoring and extortion. She and her husband were in a constant state of anxiety which led to multiple heart attacks.

    ·She sent a petition in relation to [Mr A’s] plan and Police inaction and sent it to the [City 1] city government. She did not receive a reply. [In] January 2016, she was arrested in a city-wide mass arrest of petitioners by [City 1] Police Department and sent to [City 1] Detention Centre. Her husband suffered a heart attack during a search of their home. She was abused and persecuted whist in detention for 2 weeks. Her family was not allowed to visit her at the Detention Centre.

    ·Her health deteriorated in detention and in less than a week her symptoms were so severe that no one went near her and the Detention Centre refused to keep her there. The Police took her to [City 1] County Police Department. The Police accused her of slandering the County leader and affecting economic development and told her that she would be severely punished.

    ·[In] January 2016, the Police searched her home again. On that date, she paid [amount] yuan and was released. She was threatened not to hire a lawyer or lodge a petition again. After her release, she and her family did not dare to live in China.   

15. The second named applicant is the spouse of the first named applicant. He has not made any claims in his own right.

16. The applicants have filed with the Department copies of their Chinese passports.

17. The first names applicant attended an interview with the Department on 29 September 2016. During her interview, she reiterated her written claims. She was accompanied by the second named applicant who did not give evidence. The delegate found that she is not a person in respect of whom Australia has protection obligations.

18. The first named applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 7 October 2016.

    Receiving country

19. The applicants claim to be citizens of China and have provided copies of their Chinese passports to the Department. In the absence of any evidence to the contrary, the Tribunal finds that they are citizens of China and that they are outside their country of nationality. The Tribunal finds that China is the receiving country for the purpose of assessing the claims for protection.

    Third country protection

20. There is no evidence before the Tribunal to suggest that the applicants have the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

    Assessment of claims

21. 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 for the reason claimed 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 decision maker to establish the relevant facts. A decision maker 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.)

22. In this case, the first named applicant's claims are made in general terms and they are unsubstantiated. As she did not attend the hearing on 13 August 2019, the Tribunal was unable to obtain further details of her claims and to test their veracity. If the first named applicant had attended the hearing, the Tribunal would have sought additional information about her dealings with [Mr A] in relation to the purchase of the farm, what damage was done to the farm and what she did with the farm when she left China. If the first named applicant had attended the hearing, the Tribunal would have ascertained further details of her petition, when it was sent, who it was sent to and what, if anything, she did to follow up on her petition when she did not receive a response.

23. If the first named applicant had attended the hearing, the Tribunal would have obtained further details of her arrest, detention and subsequent release including why the Detention Centre refused to detain her but the Police Department did and where her family obtained the money to pay for her release. If the first named applicant had attended the hearing, the Tribunal would have clarified why the Police searched her home for a second time [in] January 2016 considering that she had been in detention until that date.

24. If the first named applicant had attended the hearing, the Tribunal would have sought information from her about the constant harassment, monitoring and extortion her family was subject to [in] September 2015 and why this happened. The first named applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 7October 2016 which indicates that the delegate found that her son-in-law is not a genuine and practising Catholic and that he was not a member or organiser of an underground Catholic Church or gathering. If the first named applicant had attended the hearing, the Tribunal would have discussed this evidence with her in light of her claims that her son-in-law is an underground Catholic, her family was accused of being in a cult and persecuted partly for this reason.

25. If the first named applicant had attended the hearing, the Tribunal would have sought additional information in relation to her response to question 3 in her Form 866B that she has been charged with an offence that is currently awaiting legal action and has been convicted of an offence.  If the first named applicant had attended the hearing, the Tribunal would have discussed with her how she was able to leave China in view of the above and in view of her claims that her family was being monitored.

26. If the first named applicant had attended the hearing, the Tribunal would have ascertained why she did not seek asylum when she first came to Australia, why she did not seek asylum in New Zealand and why she delayed applying for asylum on her second trip to Australia in view of her claim that she and her family did not dare to live in China. If the first named applicant had attended the hearing, the Tribunal would have discussed relevant country information with her including information about President Xi’s anti-corruption campaign.

27. On the limited evidence before it, the Tribunal is not satisfied that the first named applicant left China for the reasons claimed or that she fears returning to China for the seasons claimed. On the evidence before it, the Tribunal is not satisfied that there is a real chance of serious harm or a real risk of significant harm for any of the reasons claimed if she returns to China now or in the reasonably foreseeable future. 

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

28. On the limited evidence before it and in view of the above findings, the Tribunal is not satisfied that the first named applicant has a well-founded fear of persecution for any reason set out in s.5J(1)(a) of the Act, that there is a real chance that she would be persecuted for one or more of those reasons and the real chance of persecution relates to all areas of China. Therefore, she does not meet the definition of refugee as set out in s.5H of the Act. Accordingly, the Tribunal is not satisfied that the first named applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.

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

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

30. On the limited evidence before it and in view of the above findings, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the first named applicant being removed from Australia to China, there is a real risk that she will suffer significant harm. Therefore, the Tribunal is not satisfied that the first named applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act. 

    CONCLUSION

31. For the reasons given above, the Tribunal is not satisfied that the first named 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.

32. There is no suggestion that the first named 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 first named applicant does not satisfy the criterion in s.36(2) of the Act.

33. As the first named applicant does not satisfy the criteria in s.36(2)(a) or (aa) of the Act and does not  hold a Protection visa, the second named applicant is unable to satisfy the criteria in s.36(2)(b) or (c) of the Act. Accordingly, the second named applicant does not satisfy the criterion in s.36(2) of the Act.

    DECISION

34. The Tribunal affirms the decision not to grant the applicants Protection visas.

L.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.

…