1702411 (Refugee)

[2019] AATA 6494

1702411 (Refugee) [2019] AATA 6494 (25 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1702411

COUNTRY OF REFERENCE:                   China

MEMBER:Denise Connolly

DATE:25 October 2019

PLACE OF DECISION:  Sydney

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

Statement made on 25 October 2019 at 8:50am

CATCHWORDS
REFUGEE – protection visa – China – particular social group – claimed mistreated for objecting to acquisition of land for development – did not attend interview with delegate or Tribunal hearing – lack of evidence – unreliable evidence – no real risk of serious harm – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 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 and Border Protection on 13 January 2017 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 12 April 2016. 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. On 12 September 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 24 October 2019 at 2:30PM to give evidence and present arguments relating to the relevant issues. The letter informed the applicant 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, or it may dismiss the review application without any further consideration of the application or the information before it.  The Tribunal also sent to the applicant two SMS hearing reminders, on 17 and 23 October 2019, using the last mobile number provided to the Tribunal in connection with the review. It has received a message that delivery of the second SMS, sent on 23 October 2019, failed.

4. The applicant did not attend the hearing at the scheduled date and time. The Tribunal notes that the hearing invitation was sent to the email address last provided in connection with the review. There is no evidence before the Tribunal to indicate transmission of that email failed. The applicant has not sought a postponement of hearing or provided any explanation for why he did not attend the hearing.  Having reviewed the material before it, the Tribunal is satisfied that the applicant was properly invited to a hearing and that the invitation was sent using the last email address provided in connection with the review, and the invitation has not been returned to sender. No satisfactory reason for the non-appearance has been given. Accordingly the Tribunal will proceed to make its decision on the evidence before it.

   CLAIMS AND EVIDENCE

5. When making the visa application the applicant provided the following information. He was born on [date] in Tianjin, China. He is a citizen of China. He does not have the right to reside in any other country. He speaks Mandarin. He is of Han ethnicity. He married his wife [in] June 2002 in Tianjin. They have a son born [date] and a daughter born [date]. His wife, son and daughter currently reside in [Hangu District], Tianjin, where he resided before he came to Australia. His father also resides in Tianjin. He provided a copy of his Chinese passport issued [in] 2014 obtained through normal procedures. Prior to travelling to Australia he was employed as a [Occupation 1]. He applied for a [temporary] visa on 18 August 2014 which was granted on 19 August 2014. He arrived in Australia as the holder of the [temporary] visa [in] August 2014.

6. In a statement attached to his application the applicant made the following claims. He was mistreated in China.  In August 2013 the villagers were informed that a real estate developer was to acquire their land for the construction of commercial residential buildings. His family had [a quantity of] of arable land, which was within the scope of construction. They did not agree to the acquisition because the acquisition price was too low. There were no legal documents for the land acquisition and they did not sign the compensation agreement.  [In] October dozens of people, sent by the developer, arrived to acquire the land by force, with the help of police and city management officers. Their crops were destroyed with an excavator. The villagers rushed to stop them and questioned why they were seizing their land. Thugs beat the villagers with sticks. The police and city management officers stood aside and did not stop them. The villagers went to argue with the village representative but were told there was nothing he could do because of the superior’s orders.

7. The applicant questioned how they could survive without arable land. He felt it was unfair so he petitioned with other villagers. They went to [the relevant authority]. The people there said they would investigate and told them to wait.  Not long after, the applicant received a phone call from someone who claimed to represent the developer. The person threatened that if they continued appealing, they would be in big trouble. The villagers were very angry at the officers from the [authority] for disclosing their information.  They decided to report the developer to the Tianjin municipal government.  In November, he went with two villagers to the [second authority]. A few nights later, he was stopped by several people and forced into a minibus. They took him to a remote construction site and beat him. They threatened to kill him if he kept petitioning. He was beaten so badly he fainted. He was lucky to be found by some good people who took him to the hospital. When he was discharged he returned home. He was very depressed because he was almost killed for protecting his interests. He thought about his arable land, on which the family relied for survival, and decided he would keep fighting against them till the end.

8. The applicant claims that [in] February 2014, he secretly went to Beijing with a plan to report the people to the [second authority]. However, the staff there said he was bypassing local authorities and refused to accept his petition. He was turned out by the security guard with whom he argued. As a result, he was taken to a police station in Beijing. The police [then] arrested him and locked him up for [a number of] days, accused of disturbing public security. They also forced him to write a statement that he would not petition any more.

9. The applicant claims he was refused compensation money for the land acquisition because he had petitioned. He claims the whole family was in financial trouble and he felt devastated. He felt there were no human rights in China so he came to Australia ([in] August 2014) with the help of an agency. He requests the Australian government to protect him.

10. The applicant lodged his protection visa application until April 2016, about 20 months after he arrived in Australia.

11. The applicant was invited to an interview with the delegate to be held on 11 January 2017. He did not attend.

    CRITERIA FOR A PROTECTION VISA

12. 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.

13. 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.

14. 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).

15. 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.

16. 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

17. 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

    Assessment of claims

18. The applicant claims to be a citizen of China and has provided to the Department a copy of his Chinese passport. The delegate was satisfied that the applicant had provided sufficient evidence of his identity consistent with his narrative and biometrics. On this basis the Tribunal is satisfied that the applicant is a citizen of China. The Tribunal finds that China is his receiving country for the purpose of assessing his claims for protection. 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?

19. 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 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.)

20. In the written application the applicant essentially claims that he was mistreated in China because he objected to, and petitioned about the acquisition of his land for the purposes of development.  He claims his crops were destroyed and in an attempt to prevent that destruction local villagers were beaten. He claims he attempted to petition with other villagers and the authorities told them to wait. He claims in the meantime he received a phone call from someone who threatened that if they continued appealing, they would be in big trouble. He claims villagers reported the developer to the Tianjin municipal government and that he went with two villagers to the [second authority]. He claims he was subsequently forced into a vehicle, taken to a remote construction site, beaten, and threatened with death if he kept petitioning. He claims he secretly went to Beijing with a plan to report the people to the [second authority] but the staff refused to accept his petition and he was turned away by the security guard. He then argued with the security guard and was taken to a Beijing police station. He was arrested and detained for [a number of] days, accused of disturbing public security. They also forced him to write a statement that he would not petition any more. He was refused compensation for the land acquisition because he had petitioned. His whole family was then in financial trouble.

21. The applicant seeks to rely merely on his written claims. He has not taken the opportunity to give his oral evidence, to the Department at the delegate’s interview, or to the Tribunal at the hearing. The Tribunal wished to test the veracity of his claims but has been unable to do so. It also wished to discuss with the applicant the delay in making his visa application. On the scant evidence before it, the Tribunal is not satisfied the applicant’s land was appropriated, or that he was offered inadequate compensation, or that he petitioned, or that he was beaten, threatened, arrested or detained.  Accordingly it is not satisfied any of his claims are true or reliable. The Tribunal is not satisfied the applicant has been or is of adverse interest to the authorities. It is not satisfied the applicant will suffer any harm if he returns to China because he has petitioned the authorities, or because his land has been appropriated, or because he objected to the appropriation of land for development, or for any other reason.

22. Having considered all the evidence before it, the Tribunal is not satisfied the applicant has a well-founded fear of persecution in China for any reason.  Therefore he does not meet the definition of refugee.  Accordingly the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    Is the applicant entitled to protection under the complementary protection criterion?

23. 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 meets the criterion for the grant of a protection visa under the complementary protection criterion.

24. As indicated above, the applicant has failed to provide sufficient evidence regarding his claims. As the applicant did not attend the hearing, the Tribunal was unable to obtain further information about his claims, or to test their veracity. The applicant has indicated that, at the time of application, his family was in financial trouble because their arable land was appropriated suggesting he is no longer able to support himself and/or his family in China. On the evidence before it the Tribunal is not satisfied that this is the case. The Tribunal is not satisfied the applicant will not be able to secure employment such that he can subsist in China.  It is not satisfied he will be denied employment, or targeted or harmed by anyone or discriminated against for any reason. In view of its findings and on the evidence before it, the Tribunal is not satisfied that the applicant has suffered significant harm in China or that there is a real risk he will suffer significant harm if he returns to China.

25. 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. 

26. 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) and the Tribunal must affirm the decision.

    DECISION

27. 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.

    …

    5H    Meaning of refugee

    (1)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

    (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 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.

    (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.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)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.

    …