1705756 (Refugee)

[2021] AATA 1817

1705756 (Refugee) [2021] AATA 1817 (22 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1705756

COUNTRY OF REFERENCE:                   China

MEMBER:Nathan Goetz

DATE:22 April 2021

PLACE OF DECISION:  Sydney

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

Statement made on 22 April 2021 at 1:47pm

CATCHWORDS
REFUGEE – protection visa – China – factory dismantled and land repossessed by government – unfair treatment – petition to higher authorities – non-attendance at hearing – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2

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

1. 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).

2. [In] November 2016 both applicants arrived in Australia holding visitor visas which had been granted on 26 October 2016.

3. On 2 February 2017 the applicants applied for protection visas. The applicants did not attend an interview with the delegate on 28 February 2017. On 28 February 2017 the delegate refused to grant the protection visas.

4. On 23 March 2017 the applicants applied to the Tribunal for a review of the refusal decision.

5. On 25 March 2021 the applicants were invited to appear at a three-hour Tribunal hearing commencing at 10am on 23 April 2021. The hearing invitation asked for any documents on written statement that the applicants wanted to rely upon be provided to the Tribunal by 16 April 2021. The hearing invitation noted the potential consequences should the applicants fail to appear at the Tribunal hearing.

6. On 19 April 2021 Tribunal staff wrote to the applicants to advise that the hearing scheduled on 23 April 2021 had been brought forward to 22 April 2021 and would commence at 10:30am. The letter again advised the applicants of the potential consequences should the applicants fail to appear at the Tribunal hearing. On 21 April 2021 an SMS reminder message was sent to the mobile phone provided by the applicants in the review application form to remind them of the Tribunal hearing on 22 April 2021.

7. The applicants did not complete and return to the Tribunal the ‘Response to hearing invitation form’ nor did the applicants contact the Tribunal to request that the Tribunal hearing be postponed. Apart from the review application form lodged on 23 March 2017, the Tribunal received nothing further in support of the review application, although the Tribunal notes that a request for a letter to confirm that the review application was ongoing for the purpose of obtaining a Medicare card was received on 21 January 2021.

8. On 22 April 2021 at 10:30am the applicants did not appear at the Tribunal hearing.

9. The Tribunal is satisfied that the applicants were properly invited to appear at a Tribunal hearing. An SMS reminder was sent about the Tribunal hearing the previous day. No explanation has been provided to explain the failure to appear at the Tribunal hearing. Given this, the failure to return the ‘Response to hearing invitation form,’ and the fact that the applicants also failed to appear at the delegate interview, the Tribunal decided to exercise its powers under s.426A(1A)(a). That is, to make a decision on the review application without taking any further action to allow or enable the applicants to appear before the Tribunal.

10. The applicants were represented in the review application by registered migration agent [deleted].

    CRITERIA FOR A PROTECTION VISA

11. 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.

12. 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.

13. 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).

14. 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.

15. 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

16. 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

17. According to the protection visa application forms, the applicants are [Ms A], [an age] year old female who was born in Jiangshan town/city, Zhejiang province, China and [Mr A], [an age] year old male who was born in Jiangshan town/city, Zhejiang province, China. They were married [in] February 1999 in Jiangshan. They lived at [an address in] Jianshan city, Zhejiang province from 1999 until November 2016. They disclose two children who live in China.

18. Both applicants made protection claims. Their forms directed the decision-maker to a written statement that was attached to the application. The form was written by [Ms A].

19. [Ms A] wrote that she and her husband had experienced severe discrimination and unfair treatment by the Chinese authorities because they had visited a higher level of government due to their factory being dismantled against their will and without reasonable compensation. They were scared to return to China. The statement detailed the success of their company [and] noted the steps taken to establish that company.

20. The statement went on to detail that in July 2015 the couple received a letter from the Administration of Urban House Dismantling and Relocation of Jiangshan city. The letter informed the couple that the local government would take the land of the business in order to build communal facilities. Compensation was offered of 200,000RMB. The couple were required to move before [January] 2016. [Mr B] communicated with the director of the authority expressing that the couple could not accept the dismantling of the building because the compensation was low. The couple hoped that the government would use other land to build the facilities. The statement detailed that the authority’s response that the couples’ unwillingness was not considered because the authority was following government orders. [Ms A] had no choice but to consult with a lawyer, but the lawyer could not help because the opponent was the government.

21. The couple wrote to the Hangzhou government because they thought about visiting a higher level of government. There was not response to the letter. The couple then visited the city government in September. They were told that the director was not there. [Ms A] waited the whole day but the director did not see her. The couple left and returned one week later. The director still did not see the couple. They visited a third time. The staff of the office were annoyed and told the couple that the director would not meet them even if he was not there. The couple were angry and argued with the office staff. The couple realised that no authority in China would listen to normal people. She wrote that the factory was forced to close at the end of 2015 and was demolished in January 2016. The couple were depressed and angry watching their business destroyed. After the dismantling, compensation of RMB200,000 was offered. The couple tried several times to communicate with the authorities for reasonable compensation, but the couple were ignored.

22. After the factory was dismantled, the couple realised that they could not do business in China because the government did not protect small businesses. They prepared to go overseas. Their income source was cut off, and after paying back their borrowings, they had a lot of stock but no money. They had to pay their children’s living, medical and education expenses. They also had their elderly parents to look after. Life became hard and they did not receive any assistance or allowances.

    FINDINGS AND REASONS

23. The issue in this case is whether the applicants are ‘refugees’ or people who meet the requirements for ‘complementary protection.’ The Tribunal must also determine whether either applicant is a member of the same family unit as a person who is a ‘refugee’ or meets the requirements for complementary protection.

24. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of reference

25. The applicants claim citizenship of China and provided a copy of their Chinese passports with their protection visa application forms. There is no information to suggest that the applicants are not Chinese citizens, that they are citizens of another country, or that they have the right to enter and reside in a third country. Therefore, China is the country of reference for the protection visa assessment.

    Protection visa applications lacking sufficient detail in order to give any weight to the claims

26. The Tribunal was obligated to invite the applicants to a Tribunal hearing because, on the information it had, the Tribunal was unable to make a favourable decision: s.425(2)(a). The invitation letter made it clear that the Tribunal had considered the information that it had, but it could not make a favourable decision. The Tribunal needed more information and the Tribunal hearing was the opportunity for the applicants to provide additional information.

27. The Tribunal is not satisfied that the applicants had any factory or business that was taken by the authorities in China and demolished. The applicants claimed in their statement that they established their business in 2010 by ‘getting money ourselves’ and ‘loan ready’ and noted the profits that the business generated. However, no documentary evidence was provided to demonstrate that they had the business as claimed, such as certificates for business registration, loan agreements, or income statements concerning the business. The applicants also referred to receiving a letter from authorities in China informing them about the proposed acquisition of their factory but did not provide a copy of this letter.

28. It is reasonable to expect that if the applicants established and operated this business, and that the land that this business was located on was acquired as claimed, such material would be provided to support their claims.

29. The Tribunal also has concerns about the claim that the applicants had an argument with staff in the Hangzhou City government office. The applicants provided no meaningful detail of what was said by the applicants, or the reaction of the authorities in China to this argument.

30. The applicants do not disclose that they received any harm, or threats of harm, in China as a result of this argument, or their claimed petitioning generally.

31. The applicants also provided no explanation about why they delayed applying for protection in Australia until 2 February 2017 when they arrived in Australia in November 2016. To the Tribunal’s way of thinking, if the applicant’s claims were genuine, they would have applied for protection in Australia soon after their arrival. The Tribunal views the delay as indicative, when coupled with the other concerns that the Tribunal has about the credibility of the claims, of the fact that the applicants have not experienced past harm in China as they claim, and that they do not genuinely fear returning to China.

32. It is not the task of a decision-maker to make the applicants case for them. It is a matter for the applicants to provide a decision-maker with as much detail as possible for the Tribunal to make relevant findings of facts and apply those facts to the statutory framework of Australia’s protection obligations. While the Tribunal acknowledges that there is no ‘onus of proof’ in administrative inquiries, the information about the claimed facts that give rise to any potential protection obligations will necessarily come from the applicants.

33. The Tribunal is not satisfied on the material it has that there is any truth to the applicants’ claims.

    CONCLUSION

34. The Tribunal is not satisfied that the applicants operated a business in China as claimed or that the land of that business was acquired by authorities in China. The Tribunal is not satisfied that the applicant petitioned as they claimed. The Tribunal is not satisfied of any asserted factual matter arising from this claim occurred, because the Tribunal is not satisfied that there was a business whose land was acquired by the authorities in China.

    [Ms A] and [Mr A]

    Refugee

35. For the reasons given above, the Tribunal is not satisfied that there is a real chance that the applicants will suffer serious harm in China on account of their race, religion, nationality, membership of a particular social group or political opinion.

36. Therefore, the applicants are not people in respect of whom Australia has protection obligations under s.36(2)(a).

    Complementary protection

37. 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). For the same reasons, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence, the applicants will suffer significant harm if removed from Australia to China.

38. Therefore, the applicants are not people in respect of whom Australia has protection obligations under s.36(2)(aa).

    Member of the same family unit

39. There is no suggestion that the applicants satisfy 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 applicants do not satisfy the criterion in s.36(2).

    DECISION

40. The Tribunal affirms the decision not to grant the applicants protection visas.

    Nathan Goetz
    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.

    …