1701166 (Refugee) - [2020] AATA 5063

1701166 (Refugee) [2020] AATA 5063 (3 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1701166
COUNTRY OF REFERENCE:                   China
MEMBER:Simone Burford
DATE:3 February 2020
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 03 February 2020 at 11:53am
CATCHWORDS
REFUGEE – protection visa – China – membership of particular social groups – unmarried parents in breach of family planning policies – first applicant’s two children with previous partner in China, when under marriageable age – harassment of family by authorities – first and second applicant’s two children in Australia – social compensation fees and household registration – borrowed money from money lender for brother’s medical expenses – threats to mother – credibility – first two births registered in China with parents’ full details – first applicant obtained and travelled on own passport – visa, study and work history – delay in applying for protection – incorrect, misleading, vague, inconsistent and uncorroborated evidence – adverse information about work and finances – country information on returnees and children born overseas – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 36, 65, 91R, 424A, 438
Migration Regulations 1994 (Cth), r 1.12, Schedule 2
CASES
Guo v MIBP [2016] AATA 897
Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs (1996)
40 ALD 445
Iyer v MIMA [2000] FCA 52, [2000] FCA 1788
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220

Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
SDAQ v MIMA (2003) 129 FCR 137
SZTYV v MIBP [2018] FCCA 64
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 dependants.
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 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The first [applicant] and second [applicant] are de facto partners who claim to be citizens of the People’s Republic of China. The third [applicant] is their son who was born in Australia and who also claims to be a citizen of the People’s Republic of China.
The applicants applied for the visa on 30 June 2014. The first and second applicants attended an interview at the Department of Immigration on 10 November 2015.
On 11 January 2017 the delegate of the Minister for Immigration refused to grant a protection visa under s.65 of the Act because the delegate was not satisfied that the applicants met the requirements for the visas. The applicants lodged a review of the delegate’s decision with the Tribunal on 23 January…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1701166 (Refugee)

Details

AGLC: 1701166 (Refugee) [2020] AATA 5063
Case: [2020] AATA 5063
Decision Date: 3 February 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the protection visa applications of two applicants from China. The dispute concerned whether the applicants met the criteria for a protection visa, particularly in relation to their claims of persecution based on their status as unmarried parents in China and the circumstances surrounding their children.

The Tribunal was required to determine if the first applicant was a member of a particular social group in China, specifically unmarried parents who had breached family planning policies. This involved assessing the credibility of the applicants' evidence regarding harassment by authorities, the circumstances of their children born in China and Australia, and the financial and social compensation fees associated with their children's registration. The Tribunal also had to consider adverse information presented about the applicants' work history, finances, and the general country information regarding returnees and children born overseas.

The Tribunal found significant inconsistencies and a lack of corroboration in the applicants' evidence. The first applicant provided vague and contradictory testimony regarding his student visa, his study, and his financial situation. His claims about his family background, including his father's mental health and his mother's religious beliefs, were not linked to any protection claims. The Tribunal noted that the first two births in China were registered with full parental details, and the first applicant had travelled on his own passport, suggesting a level of official recognition. The delay in applying for a protection visa and the nature of the evidence presented led the Tribunal to conclude that the applicants' claims were not credible.

Consequently, the Tribunal affirmed the decision under review, finding that the applicants had not established that they met the criteria for a protection visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Paragraphs 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include a spouse or child of the applicant.CLAIMS AND EVIDENCEBackground The first and second applicants came to Australia separately from Fujian Province, China as the holders of student visas. They claim they started their relationship in Australia. The first applicant is [age] years old and came to Australia from Fujian Province, China as the holder of a student visa in June 2008. The second applicant is [age] years old and came to Australia in May 2008 also as the holder of a student visa. At the hearing the first applicant told the Tribunal he didn’t know what visa he was on when he came to Australia. The agent who organised the visa told him he could study and earn some money so that is why he came. He told the Tribunal he studied for one day. He said he didn’t have enough money to study and needed money for rent and other things. He said he didn’t see his student visa application so he didn’t know if he had declared his then partner and children on the application. The couple met as children in China as they are from the same village. They claim to have met again in Australia. They started living together in a de facto relationship in May 2010. The first applicant is working a casual job as [an Occupation]. He has also worked in [specified] jobs in Australia. He claims he earns about $100 per day in cash for this work. The second applicant said the family income was $400-$500. The couple is not married. The second applicant told the Tribunal when asked if they had plans to marry:Initially not but we have been together a while so we thought about that but don’t have the resources to get married.When the first applicant was asked about his plans to marry he indicated that they didn’t have valid visas. The Tribunal asked whether they would marry if they were able to and he said “probably not because I don’t have money. For the marriage certificate I don’t have the money”. The first applicant indicated that he grew up in a village in Fuqing City in Fujian Province. He gave evidence that his mother was adopted from the street as a child by his father’s family and brought up by his grandparents. She “became my father’s wife in the end”. He testified that his father was “mentally abnormal”. His father was unable to work normally and was violent with his family members without any reason. This family spent money on medical treatment for his father, however his condition never improved. The first applicant told the Tribunal his mother is religious and is a Christian of Han ethnicity. The first applicant did not raise any claims for protection relating to his or his mother’s religious beliefs or practice.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.