1708944 (Refugee)

[2021] AATA 308

1708944 (Refugee) [2021] AATA 308 (13 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1708944

COUNTRY OF REFERENCE:                   China

MEMBER:Nicholas McGowan

DATE:13 January 2021

PLACE OF DECISION:  Melbourne

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

Statement made 13 January 2021 at 12:25pm

CATCHWORDS
REFUGEE – protection visa – China – fear of harm after reporting illegal activity – refused invitation for hearing – decision made on papers – decision under review affirmed

LEGISLATION
Migration Act 1958, s 36
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.

WRITTEN STATEMENT OF DECISION AND REASONS

1. The applicant applied to the Tribunal on 24 April 2017 for a review of his protection visa (Subclass XA-866) refusal by the Minister’s delegate (refused on 30 March 2017).

2. The applicant is not a member of a family unit as a non-citizen in respect of whom the Minister has been satisfied Australia has protection obligations and who holds a Protection visa of the same class as that applied for by the applicant: Section 36(2)(b) and Section 36(2)(c) of the Migration Act 1958 (the Act).

   Migration history

3. The applicant was granted an offshore lodged application for a visitor visa (Subclass FA-600) on 10 November 2016, and arrived in Australia as that visa holder [in] November 2016.

4. On 1 February 2017 the applicant lodged his application for a Protection visa (Subclass XA-866) the refusal of which on 24 April 2017 by a delegate for the Minister, is the subject of this review.

   Identity

5. The Department of Immigration has previously accepted that the applicant’s identity is as claimed by him, namely [name] born [date] in Hubei, China. This is evident from the delegate’s refusal Decision record dated 30 March 2017 which also references the applicant’s People’s Republic of China national passport no. [deleted] as evidence of his claimed identity. The applicant also provided biometrics to the Department of Immigration on 13 February 2017 which included a digital photograph and a scan of his fingerprints.

6. There is no evidence before the Tribunal that any of the documents provided is a bogus document as defined in Section 51 of the Act, and no check of the Department’s relevant systems (as referred to by the Minister’s delegate in the Decision record of 30 March 2017) raised any concerns that the applicant had given a false identity.

7. Given the above, and based on the information in the applicant’s Department of Immigration file [the] applicant has satisfied the Tribunal of his identity as specified above.

   Receiving country

8. As the Tribunal has found the applicant to be a national of the People’s Republic of China, and there is no evidence (or claim) before the Tribunal that the applicant holds any other citizenship or have a current right to enter or reside in a third country) the Tribunal accepts section 36(3) of the Act does not apply to him. Accordingly, the Tribunal finds that for the purposes of this review, China is the applicant’s receiving country.

   Protection claims

9. The applicant’s protection visa application forms (Form 866 Part A, Form 866 Part B and Form 866 Part C) outline his protection claims.

10. In Part C of Form 886, the applicant responded to questions 89 to 96 in “relation to all countries against which he does not wish, or cannot return to”. The applicant identified the one country - “China”, as the country which he is seeking protection in Australia so he does not have to return there.

11. In response to question 89 (Why did you leave that country(s)?) the applicant writes “I was researcher in local [Research] Institute. My duty was to do routine assessment for [deleted]. In 2015, I found that [deleted] These residences reported this issue to me and then I submit that related report to senior authority. From then on, I suffered a terrible life in my home town.” In response to question 90 (What do you think will happen to you if you return to that country(s)? the applicant writes “I think I will be threatened and beaten. My family in my home town told me that those person said they would detained me once I arrive in China.” In response to question 91 (Did you experience harm in the country(s)? the applicant writes: “Yes, I have experience harm in China. They threaten me after I report this issue to local authority. The gangsters came to my home to threaten my family. I tried to stop them and then they started to beat me. My family felt scared when they saw what happened at my home.” In response to question 92 (Did you seek help within the country(s) after the harm?) the applicant writes “I tried to complain but no one would like to help me”. In response to question 93 (Did you move, or try to move, to another part of that country(s) to seek safety?) the applicant writes “I tried to move to another city to live. However, it was not easy to move with my family. The most importantly, the local government officer kept looking for me and threatening my family. They worried me to report the thing to higher authorities.” In response to question 94 (Do you think you will be harmed or mistreated if you return to that country(s)?) the applicant writes “The government officer told me that they would catch me if we returned to my home town. They would keep an eye on me. I am so scared of that.” In response to question 95 (Do you think the authorities of that country(s) can and will protect you if you go back?) the applicant writes “It is the authorities who threatened me and do the terrible thing to my family and I”. In response to question 96 (Do you think you would be able to relocate within that country(s)?) the applicant writes “Chinese have to get permission from the police to relocate with their household registration. I could not get the permission.”

12. The above written claims are the applicant’s protection claims (verbatim) and the totality of the evidence available for consideration by the Minister’s delegate in respect to the applicant’s protection application). No documents or other evidence were provided by the applicant prior to consideration of his claims (by the Minister’s delegate).

    Interview

13. The applicant was invited to attend an interview as part of the delegate’s consideration of his Protection visa application. The interview was scheduled for 27 March 2017, though he did not attend as invited and gave no reason, and made no contact with the Department afterwards. According to the delegate’s refusal Decision record dated 30 March 2017 (a copy of which the applicant has provided the Tribunal as part of this review) the applicant was properly notified of the scheduled interview by email.

    Tribunal hearing

14. As the Tribunal was unable to make a favourable decision on the information before it alone, on 15 December 2020 the Tribunal invited the applicant to attended a hearing scheduled for on 13 January 2021. The applicant was notified consistent with the requirements under the Act, and in addition sent two SMS messages to the applicant days prior. On the day of the hearing the applicant was contacted by the Tribunal’s registry officer. Although the applicant indicated he had an appointment later that same day, the applicant was able to participate in the Tribunal’s assessment, though he indicated to the Tribunal officer he declined the invitation to do so. The Tribunal officer indicated prior to his decision that he would lose further right to appear before the Tribunal in respect to this review. The applicant formally declined the invitation to attend the hearing as scheduled.

15. Given all the above, the applicant’s Protection visa application has been decided on all the available information in the applicant’s protection visa application forms (outlined above under the heading: Protection claims).

    Analysis

    Refugee criteria – Section 36(2)(a) of the Act

16. The applicant has not claimed to fear harm in China for any of the reasons given in Section 5J(1)(a) of the Act, and no other reason is apparent on the face of the evidence before the Tribunal.

17. Given the above, it follows that the applicant has not satisfied the Tribunal he is a refugee as defined by Section 5H(1) of the Act. Accordingly, the applicant has not satisfied the Tribunal he is a person in respect to whom Australia has protection obligations as outlined in Section 36(2)(a) of the Act. Therefore, the Tribunal is not satisfied the applicant is a refugee as defined by Section 5H(1) of the Act.

18. An assessment in relation to Section 5H(2) of the Act has not been made.

    Complementary protection – Section 36(2)(aa) of the Act

19. As the Tribunal has not been satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to China there is a real risk the applicant will suffer significant harm as defined in Section 36(2)(aa) of the Act, the Tribunal finds the applicant is not a person in respect to whom Australia has protection obligations.

20. As the Tribunal has not been satisfied the applicant is a person in respect of whom Australia has protection obligations as assessment in respect to Section 36(2C) has not been made.

    Findings on Australia’s protection obligations

21. The applicant has not satisfied the Tribunal he is a refugee as defined by Section 5H(1) of the Act for the reasons identified above.

22. The applicant has also not satisfied the Tribunal he is a person in respect of whom Australia has protection obligations as outlined in Section 36(2)(a) of the Act.

23. As the applicant is not a refugee as defined by Section 5H(1) of the Act, an assessment in respect to 5H(2) has not been made.

24. Further, the Tribunal has not been satisfied by the applicant that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to China, there is a real risk he will suffer significant harm as defined in Section 36(2)(A) of the Act.

25. In addition, the applicant is not a person in respect of whom Australia has protection obligations as outlined in Section 36(2)(aa) of the Act.

    Decision

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

    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.

    …