1703297 (Refugee)

1703297 (Refugee) [2018] AATA 2086 (5 June 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1703297
COUNTRY OF REFERENCE:                  China
MEMBER:Christine Cody
DATE:5 June 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 05 June 2018 at 5:55pm

CATCHWORDS
Refugee – Protection visa –China – Overstayed visas – Land expropriated by village officials – Lost of livelihood – Economic hardship – Secondary applicant only attended the Tribunal hearing – Additional claims made at the hearing – Mother-in-law beaten by authorities – No genuine fear of persecution – Applicants obtained a new passport from the Consulate – Delay in applying for protection – Credibility issues – Fabricated evidence– Decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 5AAA , 5H, 5J, 5K-5LA, , 36, 65, 423A, 424A, 499
Migration Regulations 1994, 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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 3 February 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of the Peoples’ Republic of China, applied for the visas on 11 July 2016. The first named applicant (‘the applicant’) was born in [year]. The second named applicant (‘the second applicant’) was born in [year]. The two applicants are partners (Form B).
Migration history
According to the Delegate’s decision record provided to the Tribunal by the applicants, they do not have a shared migration history. They have been noted as living together since July 2016 and they lodged the protection visa application together. Their migration details are as follows:
· The applicant was granted a tourist visa on 5 October 2007; he arrived in Australia on 23 October 2007. On 27 August 2016, he was granted a bridging visa.
· The second applicant was granted a guardian visa on 30 April 2007; she arrived in Australia on 18 May 2007. On 27 August 2016, she was granted a bridging visa.
Both applicants admitted in their application forms that they had overstayed in Australia.
The second applicant told the Tribunal that she and the applicant had been married in 1989, and have been together since that date. They have a [age] year old daughter who came to Australia as a student and remains lawfully in Australia now.
Application forms and documents provided to the Department
The applicant’s claims
The applicant’s background and claims, sourced from his written material, can be summarised as follows:
·     The applicant was born in [year] in Fujian Province and is now [age] years. He speaks, reads and writes in Mandarin/Chinese. He completed primary school in China. He is a Buddhist, and he is married.
·     His passport was issued on [date] 2007, and expired on [date] 2017.
·     He provided a single address in Fuqing city, China, from [year] until May 2007.
·     He left China because he was a farmer. He made a living by growing plants. The village secretary abused his power; he expropriated the applicant’s land by force to construct a residential building and he made illegal profits. He kept persecuting the applicant’s family. Without his land, the applicant could not make a living, and he had no choice but to leave China.
·     He filed a lawsuit against the village secretary but was unsuccessful after the village secretary used his connections to influence the case. The village secretary also sent his subordinates to threaten and persecute the applicant and his family. He defamed the applicant’s reputation. The applicant lost his only source of income, and his social connections.
·     The applicant called the police immediately when his land was expropriated but the village secretary was closely connected to the police. The police did nothing to help him; they defended the village secretary and warned the applicant not to make any trouble.
·     He tried to report the illegal acts of the village secretary to the higher authorities, but it was useless. The village secretary was widely connected.
·     The visa applicant’s family was persecuted. He had to leave China. His mother and sibling remain in China.
·     The applicant has been a farmer all of his life, and without his land he can’t make a living as he does not have any other skills. He could not move elsewhere, to places where he knows nothing.
·     If he returns to China, the village secretary will continue defaming his reputation, threatening him and his family for his own interest, and imposing substantial harm on them. He will suffer physically and psychologically every day.
He received assistance in completing the forms. He provided his passport to the Department.
The second applicant’s claims
The second applicant’s background and claims, sourced from her written materials, can be summarised as follows:
·     The second applicant was born in [year] and is now [age]. She speaks, reads and writes in Mandarin.
·     She was married in 1989. She currently lives at the same address as the applicant in [Australian city 1]. She provides no details of her family members.
·     She arrived in Australia on 18 May 2007, holding a student guardian visa.
·     Her passport had been issued on [date] 2006 and expired on [date] 2011. She then obtained a passport through the Chinese Embassy in [Australian city 1], issued [date] 2013; this was provided to the Tribunal.
She makes no claims of persecution.
The Interview with the applicant, and the delegate’s decision record
The applicant was invited to attend an interview about his protection visa claims. The Tribunal has listened to the recording of the interview. Some of the applicant’s evidence at interview is set out in the delegate’s decision record provided to the Tribunal by the applicants, including:
·     The applicant had his written claims read back to him in his own language.
·     The applicant said he fears returning to China after his mother’s property was acquired by the authorities in 2014.
·     His mother was beaten by the Chinese authorities when her land was acquired. There are many people in the local area who complained about the incident and received retaliation.
·     The delegate noted that he claimed that he had to leave China after the land was taken; he now says that the land was taken in 2014, but he had already left China in 2007. The applicant said he fears returning to China because his mother was beaten by the Chinese authorities when her land was acquired (2014).
·     He said that in 2014 he went with other villagers to complain about the land acquisition. The delegate put to the applicant that he was in Australia at this time, so he could not have been involved. The applicant then said through his [sibling] he provided materials to the government in protest. When asked what materials he provided, he did not answer; instead he said that his [sibling] and other villagers complained together.
·     He stated that his mother and [sibling] had relocated to another city within China.
·     The delegate asked the applicant how the incident with his mother impacts him and his ability to return to China. He responded that it is because there are so many people in the local area who complained about the incident and received retaliation. The delegate discussed the possibility of relocating within China as he has demonstrated that he has the independence and resourcefulness to move. He responded that this is not possible as he does not know people in other areas.
The delegate’s reasons for refusal are set out in the decision record. The delegate noted that the applicant originally said that he went with others to protest in 2014, then changed his evidence. Further, while he said he provided materials, this is unsubstantiated; and the delegate was not prepared to accept that the applicant was involved in a protest concerning his mother’s house as claimed; nor was the delegate prepared to accept that his mother’s land was acquired by the Chinese authorities. The delegate did not accept that the applicant could not relocate, given his resourcefulness in relocating to Australia. The delegate was not satisfied that the applicant faces a risk of harm on return to China for the reasons claimed. The delegate was not satisfied that the applicants satisfy the requirements for a protection visa.
The Tribunal
The applicants lodged an application for review to the Tribunal, and provided a copy of the delegate’s decision record. They were represented by their registered migration [agent].
The Tribunal wrote to both applicants, advising that on the material before it, it was unable to make a favourable decision. They were both invited to a hearing on 23 March 2018. They were requested to provide a written submission setting out all claims made and maintained by the applicants by 16 March 2018. The submission should be accompanied by a signed declaration from the applicants that the submission has been read and explained to them and that it accurately and completely presents their claims.
This was not done; however, on 9 March 2018, the Tribunal received a Hearing Response indicating that both applicants would attend the hearing, but the agent would not be attending the hearing.
On 23 March 2018 the second applicant only appeared before the Tribunal to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The Tribunal explained that it was considering whether the applicant met the requirements as a refugee or under complementary protection or as a member of a relevant family unit, noting that it was not bound to follow the delegate’s decision record and it would make a fresh decision with all of the evidence before it, up until the time it issued a written decision. At the hearing the second applicant offered no explanation as to why the applicant did not wish to attend the hearing; the Tribunal noted that he had indicated he was coming, but now he was not present. She just said that he is not coming and the hearing can proceed without him.
The second applicant gave evidence including the following:
·    She and the applicant have been married since 1989, however they did not travel together to come to Australia. She came here on a student guardian visa (valid for about 1.5 years) and after that expired, she became unlawfully present. The applicant’s daughter is [name deleted], now [age] years old. She is still in Australia. She is here lawfully.
·    The second applicant obtained a new passport from the Chinese Consulate in Australia. When asked how she obtained it, she said that she just returned her old passport to the Consulate and obtained a replacement. The Tribunal asked if the Consulate had asked her what she had been doing in Australia, and she said yes, and she told them that she had been doing casual work. When asked if they said anything else to her, she said no.
·    The second applicant’s work in Australia has been casual work in [a certain industry].
·    The Tribunal noted that her protection visa application recorded that she did not make any claims as a primary applicant, but she was relying upon her membership of her husband’s family unit. She said that was correct, however when the Tribunal asked whether she has any concerns about going back to China, she said that she dared not go back to China as the land was confiscated by the officials; she sued them and she is concerned they will make trouble. When asked if there was any other reason she was concerned about returning to China, she said there was no other reason.
·    When asked why this meant she could not return to China, she said they were forced to sell the land and offered very small compensation; they are farmers, they rely upon the land, so they sued the officials and after that her mother-in-law was beaten by them and stayed in bed for a long time.
·    As the land was taken, she cannot survive if she returns. She is a farmer, she cannot read or write. At her age, in China, she will not be able to find a job. The Tribunal put to her that there was no country information before it indicating that a person her age cannot obtain work. In response she said that she is roughly [age] years old and she can’t get a job. The Tribunal suggested she could work in jobs similar to those she had held in Australia. She said that she has been [working].
·    The Tribunal put to the applicant that she did not make any claim in her application form, yet at hearing she did. She told the Tribunal that they were persecuted by the Chinese authorities, and that she did not wish to return to China due to a fear of harm because of past events in China and she could not do anything else other than be a farmer. The Tribunal put to her that it would appear that they would be able to return and obtain work, noting the ability to work in a country where they were unlawfully present and do not even speak the language.
·    At the end of the hearing the Tribunal put to the second applicant that it had concerns about her credibility and claims, including the claim that she cannot return to China. The Tribunal asked if there was anything she wanted to say and she said that in Australia everything is good and if they get protection they won’t be harmed or persecuted.
The Tribunal forwarded a letter pursuant to s.424A of the Act to both applicants after the hearing. The Tribunal did not receive a response or comments to the information, nor did it receive a request to extend the time to make a response or comments. The Tribunal also did not receive any explanation as to why the applicant did not attend the hearing. In the circumstances the Tribunal has decided to proceed to make a decision on the evidence before it.
Further relevant evidence and information is set out below.
FINDINGS AND REASONS
Country of reference
The applicants produced their passports to the Department/Tribunal. The Tribunal accepts that the applicants are nationals of China, and that the appropriate country of reference for the assessment of their refugee claims, and the receiving country for the purposes of their complementary protection claims, is China.
Credibility
The mere fact that a person claims fear of persecution 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 claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
Pursuant to s.5AAA of the Act it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.
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 or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her. 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; and Prasad v MIEA (1985) 6 FCR 155 at 169‑70).
The Tribunal was concerned that the applicants gave inconsistent, non-credible, and changing evidence, as set out below.
Inconsistent evidence as to the reasons why the applicants left China; whose land was appropriated and when the land was appropriated
The inconsistencies are as follows:
·     In his protection visa application form the applicant claimed that he left China because he was a farmer. He made a living by growing plants. The village secretary abused his power and expropriated his land by force to construct a residential building and he made illegal profits. He kept persecuting the applicant’s family. Without his land he could not make a living and he had no choice but to leave China (in 2007). He filed a lawsuit against the village secretary but was unsuccessful after the village secretary used his connections to influence the case. He also sent his subordinates to threaten and persecute the applicant and his family. He defamed the applicant’s reputation and he lost his only source of income, and his social connections. He called the police immediately when his land was expropriated but unfortunately he did not expect that the village secretary was closely connected to the police. The police did nothing to help him and they defended the village secretary and warned the applicant not to make any trouble. He has been a farmer for all of his life and without his land he can’t make a living as he does not have any other skills. He could move elsewhere to places that he knows nothing about.
·     At the hearing before the Tribunal, the second applicant initially claimed that the applicant’s land had been misappropriated in 2014.
·     The second applicant told the Tribunal at hearing that the reason why they left China in 2007 was because they could not survive financially in China so they thought about going overseas. When asked to explain, she said that they are farmers and they rely upon the land and they did not make enough money as farmers in 2007.
·     At his protection visa interview, the applicant claimed that nothing adverse had occurred until 2014, and it was then that his mother’s land was appropriated, and his mother was harmed and hospitalised, and it is for this reason that he cannot return to China.
·     When it was put to the second applicant at hearing that the applicant had claimed in his written materials that his land had been misappropriated in 2007, the second applicant then changed her evidence and said that part of his land was misappropriated in 2007, and the rest of his land was misappropriated in 2014. When it was put to the second applicant that she had changed her evidence, she did not explain why; she just repeated her new claim that half the land was taken in 2007, and the rest was taken in 2014.
·     When it was put to the second applicant at hearing that the applicant had claimed in his protection visa interview that nothing adverse had occurred until 2014, whereas she claimed that they had financial difficulties and that half the land was misappropriated in 2007, she did not offer an explanation for these inconsistencies; she was silent. She said that their financial problems had not been that bad, and she repeated her evidence that in 2007 they took half of the land from them and in 2014 they took it all.
·     When it was put to the second applicant at hearing that the applicant had claimed that it was his mother’s land that was appropriated, not his, she said ‘no’; she did not explain the inconsistencies.
The Tribunal was concerned that there were significant inconsistencies between the applicants as to:
·The reasons why they left China: the applicant said in his written materials that there were land appropriation problems in 2007; he said at interview that there were no problems until 2014; the second applicant’s initial evidence at hearing was that there were financial problems in 2007, not land appropriation problems.
·Whose land was appropriated: the applicant said it was his mother’s land; the second applicant said it was the applicant’s land.
·When the land was appropriated: the applicant said that it was his mother’s land which was appropriated in 2014; the second applicant changed her evidence at hearing from saying that the land was appropriated in 2014; after she was told of the applicant’s written materials she then said it was partially appropriated in 2007, and then completely appropriated in 2014.

The Tribunal was concerned that the above indicates that both applicants were prepared to change their claims and were prepared to provide false information to obtain a visa outcome. The applicants did not respond to the above as set out in the s.424A letter, and the Tribunal was not satisfied that the second applicant’s explanations at hearing could explain the difficulties. The Tribunal considers that the above undermines their credibility and claims.
Significantly inconsistent evidence given by the applicant between his written materials (August 2016) and his interview (18 January 2017)
The inconsistencies are as follows:
·     The delegate noted that he claimed that he had to leave China after the land was taken, however, the land was taken in 2014, but he had already left China in 2007.
·     He said to the delegate that in 2014 he went with other villagers to complain about the land acquisition. The delegate put to the applicant that he was in Australia at this time, so he could not have been involved.
·     The Tribunal also notes the changing evidence in paragraph 24 above (bullet points 1 and 4).
The applicants did not respond to the above as set out in the s.424A letter, and the Tribunal was not satisfied that the second applicant’s explanations at hearing could explain the difficulties. The Tribunal considered that the above undermines the applicant’s claims and credibility, and the second applicant’s credibility when she corroborated the applicant’s claims.
Inconsistent evidence provided about the applicants’ financial situation
The second applicant claimed at hearing that she and the applicant left China because they were farmers and had financial difficulties. The Tribunal put to the second applicant that if they had financial difficulties, then it did not understand how they obtained all the money that would have been necessary to show that they could send their daughter to study in Australia. Initially the second applicant was silent, and then she said she did not want to answer the question. She later said that they borrowed the money from other people, and after she received the visa, they returned the money to those people. The Tribunal put to her that it appeared that she and the applicant were prepared to make false representations to the Department in order to obtain a visa for their daughter, and she responded that she does not know about this. The Tribunal did not consider that the second applicant’s explanations were persuasive. Further, when the Tribunal put this information pursuant to s.424A of the Act after the hearing, the Tribunal did not receive any response.
The Tribunal was concerned that this indicates that they were prepared to provide false information to the Department of Immigration (namely to use other peoples’ funds to show that their financial situation was sufficient to support their daughter’s application for a student visa to the Department) in order to obtain a desired outcome. The Tribunal considers that this undermines their credibility.
The return of the applicants’ daughter to China
The second applicant told the Tribunal at hearing that their daughter had returned to China since the applicants have been in Australia, and that she went to the applicant’s mother’s house (her grandmother) to visit. The second applicant claimed that she went back because her grandmother was beaten. When the Tribunal asked the second applicant why they would allow their daughter to take such a risk, she said that the daughter resided with an aunt and uncle who lived more than one hour’s drive away. The Tribunal did not find this explanation to be persuasive. It considered that the applicants as parents would not allow their child to return to China, and to visit the applicant’s mother who has already been targeted and beaten up by the village chief and others, because their daughter would have also faced being seriously harmed, noting that both applicants claim that they cannot return to China because they too face a real chance of serious harm or a real risk of significant harm.
When the Tribunal put this information pursuant to s.424A of the Act after the hearing, the Tribunal did not receive any response. The Tribunal considers that if their claims were true, it is highly unlikely that they would have allowed their daughter to return to a place of harm, a place where they claim they themselves cannot go to. The Tribunal considers that the above undermines their claims and credibility.
Inconsistent evidence about action taken by or on behalf of the applicants to protest the taking of the land
The second applicant said at hearing that ‘we sued the officials’. The Tribunal asked did they do this, and she said the villagers found someone who can sue the officials for taking their land and their livelihood. Someone who can read and write. The Tribunal asked whether they provided any documentation and she said no. The Tribunal noted that the applicant’s claim was different; namely that he told the delegate at interview that he provided ‘materials’[1] through his [sibling]. The Tribunal asked if the second applicant wanted to comment and she said no. The Tribunal considers that the second applicant’s inability to explain the differences in the evidence undermines her claims and credibility.
[1] See delegate’s decision record, p 5
Further, when the Tribunal put this information pursuant to s.424A of the Act after the hearing, the Tribunal did not receive any response. The Tribunal considers that if there had been action taken on their behalf or on behalf of others and they had assisted, they both would have given consistent evidence, and the second applicant would have been able to explain at hearing why there was inconsistent evidence about this. The Tribunal considers that the above undermines their claims and credibility.
Lack of interest shown by the Chinese authorities
The Tribunal considered that the lack of interest shown by the Chinese authorities in the second applicant when she obtained a passport in Australia indicated that the applicant also would not be of interest to the authorities. In this regard, the second applicant told the Tribunal that she obtained a new passport from the Chinese Consulate here. When asked how, she said that she just returned her old passport to the Consulate and obtained a replacement. The Tribunal asked if they had asked her what she had been doing in Australia, and she said yes, and she told them that she had been doing casual work. When asked if they said anything else to her, she said no.
It was put to the applicants pursuant to s.424A of the Act that this indicates that the applicant could also obtain a replacement passport in Australia, after the expiry of his passport, and that he would not face any adverse interest from the Chinese authorities for having been in Australia or upon his return to China. When the Tribunal put this information pursuant to s.424A of the Act after the hearing, the Tribunal did not receive any response. The Tribunal considers that this indicates that neither applicant faces a real chance or a real risk of adverse attention from the Chinese authorities upon return.
Delay
Finally, the Tribunal was also concerned with the significant delay in lodging a protection visa application. The second applicant arrived in Australia in 2007, she claimed to be lawfully present for 1.5 years, but thereafter, until 2016, she remained in Australia unlawfully present.
The Tribunal raised with the second applicant at hearing its concern about her delay in lodging a protection visa application. It noted her assertion of the events in 2014, but that even after that, it took until 2016 to lodge. In response she said that her mother-in-law told her that they will be detained and arrested and they were so scared. The Tribunal noted that this did not explain the delay. She asserted that they are not well educated, they are kind of illiterate and they are not familiar with the regulations in Australia and other people told them that they can lodge the application. The Tribunal considers that the applicants have managed to get their daughter to Australia by circumventing immigration regulations, survived in Australia while both lawfully and unlawfully present, and that they have a daughter who is lawfully present in Australia having studied here. The Tribunal is not prepared to accept the asserted reasons for the delay.
The applicant also delayed in lodging his protection visa application, noting that he too arrived in Australia in 2007 holding a tourist visa; he admitted to remaining in Australia unlawfully, and only lodging a protection visa application in 2016. The Tribunal is not satisfied that he has provided a satisfactory explanation for his failure to leave Australia by the expiry date of his visitor visa, or at any time when he was unlawfully present, right up until the time he lodged his protection visa application in 2016.
The Tribunal considers that the applicants’ delay in lodging protection visa applications undermines their credibility and claims that they or anyone they are concerned with or about suffered harm or faced harm.
For the reasons set out above, the Tribunal does not consider either applicant to be a credible witness. The Tribunal notes that it has only taken into account, for each individual applicant, the credibility concerns relating to that specific applicant.
Other matters
The Tribunal has considered that some of the evidence of the applicants was corroborative of the other. For example the second applicant claimed at hearing that the village chief had taken the land, and that they had commenced proceedings, and that they had worked on the land and used this to survive. However, the corroborative evidence is not sufficient to overcome the Tribunal’s concerns about the inconsistencies and changes with the evidence.
In addition to the above matters, the Tribunal notes that it discussed the late raising of claims (s.423A of the Act) with the second applicant at hearing. She claimed that the applicant organised the documents for both of them. Although it has doubts about this, the Tribunal is prepared to give the second applicant the benefit of the doubt and it does not draw an adverse inference from the late raising of claims of past and future persecution by the second applicant. The Tribunal does not, however, accept those claims, for the reasons set out in this decision.
Credibility summary
Considered cumulatively, the concerns the Tribunal holds about each applicant's credibility as discussed above lead the Tribunal to conclude that each applicant is not a witness of truth and that each applicant has exaggerated and fabricated accounts of background and events, as well as claimed fears, upon which each has based their protection claims.
Findings on the applicant’s claims
The Tribunal does not accept that the applicants are credible. It does not accept that their claims of past harm or future feared harm are true (relating to the applicants personally, or in relation to any family members). the Tribunal does not accept that the applicants or the applicant’s mother had land confiscated or appropriated, difficulties with the village secretary, that anyone was harmed (physical or reputation or emotional), that any lawsuits were lodged, that the authorities were approached, that anyone is in fear or has been in fear because of the claimed circumstances in China, that the mother and the sibling had to move, or any claims flowing from these claims. The Tribunal also does not accept that the applicants had any financial difficulties in China or had to leave for that reason.
The Tribunal finds that the applicants have not been honest about their financial position. As it does not accept that they have represented their situation honestly, it does not accept that they will have financial difficulties or not have access to work upon return. The Tribunal does not accept that the applicants are ‘only’ farmers and do not know any other occupation. On the evidence before it, the Tribunal is not prepared to accept their assertions that they will not be able to obtain work because of their ages, or because of a claimed lack of skills/education. Further, the Tribunal notes that the applicants have been resourceful enough to survive while unlawfully present for many years in Australia. It is not prepared to accept that they face a real chance of serious harm or a real risk of significant harm for financial or economic reasons.
The Tribunal put to the second applicant that it had not made up its mind, but that it was concerned that the claims may not be true. The Tribunal said that if the claims were not true, then when considering the Department of Foreign Affairs and Trade (DFAT) report on China which deals with country conditions, it did not appear that there was a real chance of serious harm or a real risk of significant harm.
The Tribunal noted the second applicant’s evidence was that she had obtained, apparently with ease and without any adverse interest, a new passport after her old passport had expired. The Tribunal put, pursuant to s.424A of the Act, that it would expect that the applicant would be able to do the same without any adverse attention from the authorities. As noted above, there was no response to this. The Tribunal notes that the DFAT Country Information Report: People’s Republic of China 21 December 2017 states that:
Treatment of failed asylum-seekers
5.18 DFAT is not able to verify the treatment of failed asylum seekers returned to China. DFAT has no information to suggest authorities target individuals solely for having sought asylum abroad if they have not otherwise come to adverse attention. DFAT is unable to verify whether having sought asylum abroad would worsen the situation of individuals attracting adverse attention from authorities for other reasons….
5.20
Chinese law provides for foreign travel, emigration, and repatriation. A number of agencies within the Ministry of Public Security hold responsibility for monitoring entry and exit procedures at Chinese airports, including the Public Security Bureau, the Entry and Exit Authority, and the Frontiers Inspection Bureau. China’s major airports have a centralised system with name matching alert capabilities. Facial recognition technology is also widely deployed at all international checkpoints (air, land and sea). Security monitoring capabilities at airports are comprehensive, and departing passengers pass through several identity checks (including passport and ticket/boarding pass inspection) run by different agencies between arriving at the airport and boarding a flight.
5.28
Under the Passport Law, authorities can refuse passports to people who ‘will undermine national security or cause major losses to the interests of the State’. According to Freedom House, the government has refused passports to millions of people on these grounds, many of them religious and political dissidents, including Uighurs and Tibetans. The government does not publish data on passport denials.
The Tribunal noted that neither applicant claimed any difficulty in leaving the country, and that the second applicant did not appear to experience adverse interest from the Chinese authorities when obtaining a passport after having spent many years in Australia; it would seem that the applicant could then also obtain a passport without adverse interest. The considers it reasonable that they would tell the Chinese authorities that they had been working and spending time with their daughter who is lawfully present in Australia. On the evidence before it, it did not appear that they would face a real chance of serious harm or a real risk of significant harm in China for reason of having remained unlawfully present in Australia and claiming asylum. When the Tribunal put this to the second applicant she said she did not seek to comment.
The Tribunal is not satisfied on the evidence before it that either or both applicants arriving together would face a real chance of serious harm or a real risk of significant harm from the Chinese authorities.
The Tribunal has considered the applicants’ claims individually, and on a cumulative basis. Having regard to the findings that the applicants are not credible witnesses concerning past harm or future harm feared, as well as the relevant country information, other than those claims accepted above, the Tribunal rejects all the various claims made and finds that they do not have a well-founded fear of persecution for any of the reasons put forward by them.
Complementary protection
Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa) (see Annexure A, which provides a summary of the relevant terms).
The Tribunal does not accept that the applicants (or their relatives) have experienced any of the past harm or threats or adverse interest as claimed. It does not accept that they were honest or forthcoming about their financial situation. It finds that they remained for many years unlawfully present in Australia, not for reasons of fear of harm. It does not accept that any questions asked by the Chinese authorities, on the evidence before it, upon return, would lead to a real risk of significant harm. It does not accept that the applicants are of adverse interest to anyone, nor does it accept that they will have any financial difficulties or difficulties in obtaining work upon their return to China.
On the evidence presently before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to a receiving country, in this case China, there is a real risk that they will suffer significant harm for the purposes of s.36(2)(aa). The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).
CONCLUSION
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Christine Cody
Member

ANNEXURE A – CRITERIA FOR A PROTECTION VISA
1.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.
2.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.
3.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).
4.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 below.
5.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 below.
Mandatory considerations
6.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 (DFAT Reports), expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
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.
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[2018] AATA 2086

5 June 2018

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction