1706018 (Refugee)

[2017] AATA 1263

1706018 (Refugee) [2017] AATA 1263 (17 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1706018

COUNTRY OF REFERENCE:                 China

MEMBER:Shahyar Roushan

DATE:17 July 2017

PLACE OF DECISION:  Sydney

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

Statement made on 17 July 2017 at 10:57am

Catchwords
Refugee – Protection Visa – False passports – Inconsistencies in key aspects of claims – No Gambling addiction – Large family debt 

Legislation
Migration Act 1958, s36, s65, s 424A
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 dependant.

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] March 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

   BACKGROUND, CLAIMS AND EVIDENCE

2. The applicants are husband and wife. They are citizens of China. They arrived in Australia [in] September 2016 on false passports and false names. They applied to the Department of Immigration (the Department) for protection visas [in] October 2016. Both applicants completed their own Form 866C. However, the second named applicant stated in her application form that she was not making her own claims for protection. 

3. For convenience and for the purpose of this decision, the Tribunal will refer to the first named applicant as ‘the applicant’ and to the second named applicant as ‘the applicant wife’.

   Protection Visa Application

4. The applicant is [number] years old. He provided no information in his form in relation to his previous addresses and education. With regard to his employment, he merely stated that he was a ‘salesman’ for [‘a company’] in China. In response to questions relating to his reasons for claiming protection, he made the following the claims:

5. He left China with his wife to avoid being harmed by ‘gangsters’. In China, he was an insurance salesperson. At that time, he ‘barely had any financial problems’. In January 2016, he ‘got to know’ a client who managed a [entertainment business]. This person ‘was widely connected’ and he wanted to improve his sales performance through him. The applicant and his wife went to this [entertainment business] for gambling a few times a week and gradually ‘lost our track’. They were both soon addicted to gambling.

6. In June 2016, they lost all of their savings and approached the casino manager for help. In June and July 2016 they borrowed money on [number of] separate occasions and accumulated a debt totalling [amount]. However, they lost all of their money again. The casino manager harassed them constantly in order to get his money back. Subsequently, he ‘demanded’ a favour, asking the applicant to deliver a package to someone in [town 1]. When the applicant arrived at [town 1] train station, he abandoned the package because ‘there was police around checking IDs’. When he called the casino manager, he was told that inside the package was ‘something’ worth [significant amount] and that he would face ‘life danger’ if he did not retrieve the package. They had no choice but to get two ‘counterfeit’ passports and escape to Australia for safety. They were too ‘frightened’ to contact the police. Gambling is illegal in China and they risked imprisonment by the Chinese authorities. They could have also been arrested for being involved ‘in the crime by the casino manager’.

7. The applicants attended an interview with a delegate of the Minister [in] March 2017. Where relevant, their oral evidence to the delegate is discussed below.

8. [In] March 2017, the delegate refused the applications.

   Application for Review

9. The applicants applied for a review of the delegate’s decision. The applicants were represented in relation to the review by their registered migration agent. A copy of the decision was provided by the applicants to the Tribunal for the purposes of the review and the applicants are taken to be on notice of the delegate’s findings and reasons.

10. The applicants appeared before the Tribunal [in] July 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Chinese and English languages.

11. [In] July 2017, the Tribunal wrote to the applicants pursuant to s.424A of the Act inviting them to comment on/respond to information that the Tribunal considered would, subject to any comments/response they made, be the reason, or a part of the reason, for affirming the decision under review.

12. [In] July 2017, the Tribunal received an email response to its s.424A letter. The response stated:

    [W]e have not been persecuted by the underworld, no gambling, but we really owe a very big sum of money. At that time we had to talk about the facts, but fear the fact that the situation does not constitute the requirements of the refugee protection regulations, so deceive you very sorry.

    We are married in 2012, went to [town 2], not long because of bad business came back, 2012 - June 2013 I live in the house, where we lived before my relatives, my father went to [country 1] in 2008. We thought that the ability to build the house, and later learned that the family owed 40 tens of thousands. In this year more than a lot of changes occurred in December 2014 when my grandmother fell to hospital also spent more than 30,000, the money is borrowed, my father in the past few years in the [country 1] is not good so do not work. [In] July 2015 because of a lot of pressure I apply for an Australian visa, but because I fake bank running account was rejected in China, I did not have a stable job, only [one] year [from] July to December to the fruit wholesale market to work, The rest of the time is to do building hard work, but not every day have work. In May 2015 when my wife was pregnant I was really happy and sad, because I did not have the ability to raise them, so we decided to wait for the two children born after we went to fight overseas. So we asked the intermediary to help us to do two false passport is also a successful visa success, and when we go out to work because of our fake passport to stop us to the detention center. [The] thought we go back to those Debt we are really very sad, those who come from time to time to collect debt. Children live in such an environment every day, parents every day because of these debt and quarrel, parents are not good, the family owed so much money, and we did not work. We do not have the ability to go to those debts, the thought of these we do not know how many times to cry, we are really sincere, we know we have no hope but we still want to tell you the truth, even if only one Little hope we would like to try, thank you. (sic)

    CRITERIA FOR A PROTECTION VISA

13. 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.

14. 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.

15. 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).

16. 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.  

17. 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

18. 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

20. The delegate, on the basis of the evidence before him, was satisfied that the applicants’ names and nationality are as stated on the first page of this decision record. There was no additional information before the Tribunal undermine the delegate’s findings. The Tribunal is satisfied that the applicants’ names are as stated on the first page of this decision and that they are both nationals of China.

21. The applicants’ evidence, throughout the process, was marked by shifts, changes and inconsistencies regarding key aspects of their claims. Not only there were significant internal inconsistencies in each of the applicants’ evidence, there were also inconsistencies between the applicant’s evidence and that of his wife. The inconsistencies in the evidence related to the applicant’s claimed employment history, his work as an [salesman], his introduction to gambling, his acquaintance with a [entertainment business] manager, how he had accumulated his debts, his treatment at the hands of the [entertainment business] manager for failing to pay his debts, how he had dispensed with the package he was asked to deliver by the manager, where he and the applicant wife had stayed prior to their departure from China and what they had done with their original passports. These inconsistencies were discussed with the applicant at the hearing. The applicant told the Tribunal that he did not wish to make any comments in relation to these matters. The inconsistencies were also discussed with the applicant wife. Her responses, however, were brief and unpersuasive. For example, she had given evidence at the interview that the [entertainment business] she and her husband frequented did not have a fixed location because it was illegal. At the hearing, however, she stated that the [entertainment business] was located in a house at a fixed address in [town 3]. When asked to explain the inconsistency at the hearing, she stated that the house referred to was the only place she had visited.

22. The information giving rise to the various inconsistencies in the applicants’ evidence was detailed in an s.424A letter sent to the applicants following the hearing. In their response to the letter, the applicants expressly resiled from their previous claims. They apologised for ‘deceiving’ the Tribunal and stated that they ‘have not been persecuted’ by the ‘underworld’ and that there was ‘no gambling’. They stated that they, nevertheless, ‘owe a very big sum of money’ and ‘fear the fact that the situation does not constitute the requirements of the refugee protection regulations’. It was expressly stated that the applicant did not have a stable job and that, due to financial pressures, he had applied for a visa to come to Australia in 2015. However, that visa application was refused as he had provided a ‘fake’ bank account. It was stated that the applicant worked in a [another business] for a period of five months and ‘the rest of the time’ he worked as a labourer ‘but not every day’. These financial pressures led the applicant and his wife to decide to go overseas. They asked an ‘intermediary’ to help them obtain false passports to ‘go out to work’. However, they were detained due to carrying false passports.

23. Having considered the evidence before it, the Tribunal has formed the view that the content of the applicants’ email response [in] July 2017 is an accurate reflection of their circumstances and a true account of their situation. The Tribunal is satisfied that the applicant did not work as an [salesman] in China. The Tribunal is satisfied that the applicant did not gamble in a casino and that he was not addicted to gambling. The Tribunal is satisfied that the applicants did not have gambling related debts and they did not owe money to a casino manager. The Tribunal is satisfied that the applicants were not harassed or harmed in relation to any gambling debts or due to the applicant’s failure to deliver any packages. The Tribunal is satisfied that the applicant and his wife did not spend any period of time in hiding. The Tribunal is satisfied that the applicant, his wife and other members of their family are not at risk of harm by a casino manager, underworld figures or gangsters due to any failure to repay any gambling debts or delivering any packages. The Tribunal is satisfied that the applicants travelled to Australia on false passports with the intention of finding work and not because they feared harm in China.

24. In their email response [in] July 2017, the applicants stated that after getting married in 2012, they went to [town 2] for employment purposes. However, because of ‘bad business’ they returned. They later learned that the family owed a large sum of money. Although the applicant’s father had travelled to the UK in 2008, he had been unable to work in the past few years. In addition, in December 2014, his grandmother was hospitalised and they had to spend [significant amount] on medical expenses. The Tribunal accepts these claims. The Tribunal also accepts that the family has a large debt. It accepts that the applicants feel very sad at the prospect of facing their financial woes and ‘those who come from time to time to collect debt’ in China. It further accepts that the applicants may find it difficult to obtain stable employment and service their debts. However, in their email response, the applicants did not claim that they feared serious or significant harm by anyone in China.

25. After considering all of the applicants’ claims, both individually and cumulatively, the Tribunal is not satisfied that their financial difficulties and the challenges they may face in repaying the family’s debts amount to serious harm for the reason of their race, religion, nationality, political opinion or membership of any particular social group. The Tribunal is not satisfied that they have been harmed in the past in China or that, if they were to return to China now or in the reasonably foreseeable future, there is a real chance that they will be harmed for the reason of their race, religion, nationality, political opinion or membership of any particular social group. The Tribunal finds that the applicants do not have well-founded fear of being persecuted. Therefore, the applicants do not satisfy the criterion set out in s.36(2)(a).

26. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). Having considered the applicant’s claims, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia, there is a real risk that they will suffer ‘significant harm’, as that term is exhaustively defined in s.36(2A). The Tribunal, therefore, 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 China, there is a real risk that they will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)-(e) of the definition of torture in s.5(1). The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicants will suffer harm that would involve the intentional infliction of severe pain or suffering or pain or suffering, either physical or mental, such as to meet the definition of cruel or inhuman treatment or punishment in s.5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that she will suffer such harm as to meet the definition of degrading treatment or punishment in s.5(1) which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicants will suffer arbitrary deprivation of their lives or the death penalty. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

27. 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

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

    Shahyar Roushan
    Senior 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.

    …

    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.

    …