1622558 (Refugee)
[2020] AATA 701
•10 March 2020
1622558 (Refugee) [2020] AATA 701 (10 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1622558
COUNTRY OF REFERENCE: China
MEMBER:Linda Holub
DATE:10 March 2020
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 10 March 2020 at 2:34pm
CATCHWORDS
REFUGEE – Protection visa – China – a lawful non-citizen– persecuted by the Chinese Government – expropriation of his land – failed to attend Tribunal hearing – Insufficient information – fear of persecution not well-founded – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo (1997) 191 CLR 559 at 596
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MIEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
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
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 6 December 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen and national of China, arrived in Australia [in] November 2014 as the holder of a [temporary] visa. This visa ceased on 18 November 2014.
The applicant applied to the Department of Home Affairs (the Department) for a Protection visa on 25 February 2016. He was granted an associated Bridging visa C which remains in effect, as such, the applicant resides onshore as a lawful non-citizen. From the time of the expiry of his [temporary] visa in November 2014 until February 2016, the applicant was in Australia illegally.
On 6 December 2016, the delegate wrote to the applicant refusing to grant the Protection visa. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant is a person in respect of whom Australia has protection obligations.
CRITERIA FOR A PROTECTION VISA
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.
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.
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 themselves 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).
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.
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
10) In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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
11) The issues that arise on review are whether the applicant is owed Australia’s protection under the refugee criterion or under the complementary protection criterion. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
12) The applicant is [an age] year old male. He was born in [Shenyang] China. The applicant stated in his Protection visa application that he has worked as a farmer and was also a business owner. In his application he stated that his wife and daughter reside in Shenyang City, Liaoning, China.
13) The Tribunal has before it the Department’s file relating to the application for protection. The applicant’s written claims are contained in the application forms and an accompanying statement provided to the then Department of Immigration and Border Protection. At the time of application, the applicant did not provide any information or evidence in support of his claims. The Tribunal has given consideration to the delegate’s Protection Visa Assessment. The applicant did not submit any additional information or evidence to the Tribunal in support of his application.
Written Claims
14) The applicant made several written claims pertaining to his Protection visa application, including:
He was persecuted by the Chinese Government and is scared to go back.
In July 2013 he was notified by the village committee that his land was to be expropriated for a new road. He was offered compensation of [amount] RMB per mu which was lower than market value.
He tried to argue with them but they said he must remove his plants or they would be removed by force.
He tried to appeal to the county ‘dismantle office’ but could not get any help, so he decided to appeal to city government.
The village committee then went to his land [in] November 2013 and tried to force him to remove the plants. They told him that if he kept appealing he would not get any compensation.
The applicant tried to discuss this with them but they became angry and beat him. He was injured badly. They took him to the police station with a charge of damaging social stability and disturbing public security.
While detained for seven days he was tortured, forced to sign the ‘dismantle agreement’ and made to promise he would not appeal any further. He then paid [amount] RMB and was set free.
The village committee kept sending police to the applicant's house to threaten him and tell him to do what he was told.
He and other villagers went to Beijing to appeal but nobody cared for them at all. They were caught by the Shenyang government and warned not to appeal again.
They appealed again in June 2014 but were caught by police. They were imprisoned and interrogated for more than a week. The applicant was tortured while in detention.
The company the applicant had registered had to be closed due to lack of management.
15) The Department’s decision states that the applicant did not attend the interview scheduled for 1 December 2016.
Review application
16) Following the delegate’s decision, on 6 December 2016 the applicant applied to the Tribunal for a review of that decision on 29 December 2016. The Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 10 March 2020 at 9:00 am. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. On 3 and 9 March 2020 the applicant was also sent SMS reminder messages to the number that he had provided to the Tribunal.
17) The applicant did not appear before the Tribunal on the day and at the time and place at which his hearing was scheduled. Neither did he otherwise reply to the Tribunal’s hearing invitation letter (as requested). In these circumstances and pursuant to 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.
FINDINGS AND REASONS
Nationality
18) Attached to the Department’s file are photocopies of the applicant’s passport which verify his identity and nationality. In the absence of any information to the contrary the Tribunal accepts, for the purpose of this review that the applicant is a national of China.
19) Similarly, in the absence of any information to the contrary the Tribunal is satisfied that the applicant does not have a right to enter and reside in another country for the purposes of s.36(3).
Assessing the applicant’s claims
20) The mere fact that an applicant claims to fear harm 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/s claimed. Further, the Tribunal is not required to accept uncritically any and all the allegations made by an applicant (Randhawa v MIEA (1994) 52 FCR 437, p.451).
21) The only information before the Tribunal is the applicant’s own assertion of the facts which are outlined in his written application and statement. The Tribunal is unable to establish from this information that he will be persecuted if he returns to China because he attempted to obtain compensation for the expropriation of his land.
22) The applicant did not provide sufficient detail regarding his claims that he was persecuted by the Chinese Government and is scared to go back. Furthermore, the applicant did not provide sufficient detail about his claims regarding the compensation he was offered for his property and his appeals and complaints about the amount he was offered. He did not provide sufficient information about his claims regarding his interaction with the village committee and that the committee kept sending police to his house to threaten him nor about his appeal to Beijing and warnings by the Shenyang government and not to appeal again. He also did not elaborate on his claim that he was charged with damaging social stability and disturbing public security, that he was caught by police, imprisoned and interrogated for more than a week or about his claims that he was tortured while in detention.
23) Insufficient information was made available by the applicant that the events and circumstances put forward by him in his claims for protection are factual. Had the applicant attended the hearing the Tribunal would have asked him questions about those claims.
24) It remains for the applicant to satisfy the Tribunal that all of the statutory elements for the grant of protection are made out (MIEA v Guo & Anor (1997) 144 ALR 567 p.596); and although the concept of the onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 p.288), the relevant facts of the individual case will have to be supplied by the applicant themselves, in as much detail as is necessary to enable the decision maker to establish the facts. A decision maker is not required to make the applicant’s case for him or her (Prasad v MIEA (1985) 6 FCR 155 pp.169-70; Luu & Anor v Renevier (1989) 91 ALR 39 p.45). The Tribunal acknowledges this guidance had been developed for the purposes of considering refugee protection claims, however, the Tribunal is satisfied it is materially applicable to the assessment of complementary protection claims.
Findings
25) On the available evidence and without the ability to ask questions of the applicant the Tribunal does not accept that he:
was persecuted by the Chinese Government and is scared to go back.
was notified by the village committee in July 2013 that his land was to be expropriated for a new road and that he was offered compensation below market, that he tried to argue with them but they said he must remove his plants or they would be removed by force.
tried to appeal to the county ‘dismantle office’ but he could not get any help, so he decided to appeal to city government.
was forced to remove his plants by the village committee [in] November 2013 and that he was told him that if he kept appealing he would not get any compensation.
was beaten and badly injured when he tried to discuss the issue with the village committee, that he was taken to the police station and charged with damaging social stability and disturbing public security.
was detained for seven days during which time he was tortured, forced to sign the ‘dismantle agreement’ and made to promise he would not appeal any further, that he paid [amount] RMB and was set free.
was visited by police at the behest of the village committee who threatened him.
went to Beijing with other villagers to appeal and that he was caught by the Shenyang government and warned not to appeal again.
appealed again in June 2014 but was caught by police, imprisoned and interrogated for more than a week and that he tortured while in detention.
26) The Tribunal is not satisfied that there is a real chance that the applicant will face serious harm for reasons of race, religion, nationality, membership of a particular social group or political opinion, either now or in the reasonably foreseeable future, if he returns to China. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in China. Therefore he does not satisfy the criterion at s.36(2)(a) of the Act.
27) The Tribunal has also considered the alternative criteria in s.36(2)(a)(a) of the Act. For the same reasons already articulated, the Tribunal is not satisfied that the available evidence supports that there are substantial grounds for believing that, as are necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he would suffer significant harm in the form of, arbitrary deprivation of life, or the death penalty being carried out, or torture, or cruel or inhuman treatment or punishment, or degrading treatment or punishment. Therefore the applicant is not satisfied the requirements s.36(2)(a)(a) of the Act.
28) 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
29) The Tribunal affirms the decision not to grant the applicant a protection visa.
Linda Holub
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.
…
5H Meaning of refugee
For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
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.
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.
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 the 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.
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.
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.
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
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.
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.
…
Protection visas – criteria provided for by this Act
…
A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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.
…
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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