1715289 (Refugee)

[2022] AATA 3388

1715289 (Refugee) [2022] AATA 3388 (27 July 2022)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  1715289

COUNTRY OF REFERENCE:             China

MEMBER:Dr Jason Harkess

DATE:27 July 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the Applicant a Permanent Protection (Class XA) (Subclass 866) visa

Statement made on 27 July 2022 at 9:42am

CATCHWORDS
REFUGEE – protection visa – China – religion – member of underground Christian church – mother detained and assaulted and applicant threatened – credibility – delay in applying for protection – applied after previous visa cancelled and period as unlawful non-citizen – significantly different claims and evidence given at hearing – local government’s compulsory acquisition of grandparent’s land – harassment and physical attack on grandfather and inaction by police – no corroborating evidence provided – country information – applicant’s responsibility to specify particulars and provide evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(4)(b), (5), 36(2)(a)(aa), (b), (c), (2A), 65
Migration Regulations 1994 (Cth), Schedule 1, cl 1401, Schedule 2, cls 866.1-866.611

CASES
Abebe v Commonwealth (1999) 197 CLR 510
MIAC v Khadgi (2010) 190 FCR 248
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Sun v MIBP [2016] FCAFC 52
SZLPN v MIAC [2010] FCA 202
SZNRZ v MIAC [2010] FCA 107

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

INTRODUCTION AND Overview

Application for Review – Refusal of Protection Visa

1. The Applicant claims to be a citizen of China. He seeks review of a decision made by a delegate of the Minister for Immigration and Border Protection (‘the Minister’) refusing to grant him a protection visa. The Applicant is [Age] years of age and is presently residing in Victoria, Australia.

2. The Applicant originally applied for the protection visa on 27 October 2015. The visa was refused on 19 June 2017. The Applicant lodged his review application with the Tribunal on 16 July 2017. In these circumstances, the Tribunal has jurisdiction to conduct a review in relation to the delegate’s decision refusing the Applicant his visa.[1]

   [1] The relevant statutory provisions conferring jurisdiction on the Tribunal to conduct a review in this case are set out in Division 2 of Part 7 of the Migration Act 1958 (Cth). There is no issue arising as to those requirements not being met in this case.

Type of Visa

1. The specific type of visa the Applicant applied for is classified under the Migration Regulations 1994 (Cth) (‘the Regulations’) as a Permanent Protection (Class XA) (Subclass 866) visa.[2] Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of s 65 of the Migration Act 1958 (Cth) (‘the Act’). If granted, a Permanent Protection (Class XA) (Subclass 866) visa permits a non-citizen to remain in Australia indefinitely.

   [2] See Migration Regulations 1994 (Cth), Sch 1, cl 1401; Sch 2, cls 866.1 to 866.611.

Applicable Criteria

1. The criteria for the grant of a protection visa are set out in s 36 of the Act and Sch 2 of the Regulations. An applicant must establish that they are a non-citizen in Australia, and either:

   (a)they are a ‘refugee’ (‘the refugee criterion’);[3]

   (b)they otherwise qualify for complementary protection (‘the complementary protection criterion’);[4] or

   (c)they are a member of the same family unit of a person who has been granted a protection visa on refugee or complementary protection grounds (‘family member criterion’).[5]

   [3] Migration Act 1994 (Cth), s 36(2)(a).

   [4] Migration Act 1994 (Cth), s 36(2)(aa).

   [5] Migration Act 1994 (Cth), s 36(2)(b), (c).

2. A person is a ‘refugee’, and therefore meets the refugee criterion, if the person ‘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.’[6]

   [6] Migration Act 1994 (Cth), s 5H(1)(a). Because the Tribunal is satisfied that the Applicant is a citizen of China, the s 5H(1)(b) definition of ‘refugee’ (which applies only to ‘stateless’ applicants) is not applicable in this case.

3. A person meets the complementary protection criterion if there are ‘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.’[7]

   [7] Migration Act 1994 (Cth), s 36(2)(aa).

Delegate's Reasons for Visa Refusal

1. In his original application form lodged with the Department of Immigration and Border Protection (‘the Department’), the Applicant sought a protection visa claiming that he met the refugee criterion or the complementary protection criterion. The delegate was not satisfied that he met either. The Applicant did not claim to meet the family member criterion. The delegate therefore refused the visa application.

2. The delegate’s reasons are set out in a decision record. A copy of that record was provided to the Applicant when he was notified of the delegate’s decision. That notification prompted the Applicant to lodge the present review application. The Applicant also provided the Tribunal with a copy of the delegate’s decision record after lodging the review application.

Issues for Determination by Tribunal

1. The following issues arise for determination by the Tribunal in relation to the present review application:

   (a)whether the Applicant meets the refugee criterion;

   (b)whether the Applicant alternatively meets the complementary protection criterion.

Hearing of Application

1. The Tribunal convened a hearing to consider the merits of the review application on 14 June 2022 by video (MS Teams). The Applicant participated at the hearing before the Tribunal by video and gave evidence and presented arguments.

2. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

Tribunal’s Determination

1. The Tribunal has concluded that the decision to refuse the Applicant a protection visa ought to be affirmed in this case, for the reasons which are set out below. In reaching its decision, the Tribunal has had regard to:

   (a)the Applicant's original written visa application;

   (b)the delegate’s decision record;

   (c)the written material filed by the Applicant in relation to his case;

   (d)the oral evidence and arguments presented at the hearing;

   (e)the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs;[8]

   (f)country information assessments relating to China that have been prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes.[9]

   [8] These are mandatory considerations as prescribed by Ministerial Direction No 84, a direction made under s 499 of the Act (‘Direction No 84’).

   [9] These are also mandatory considerations under Direction No 84.

2. The Tribunal notes that not all the evidence and material that has been placed before it has been specifically referred to in the Tribunal’s reasons as set out below. The reasons incorporate reference only to that information that the Tribunal has been found to be material to the determination of the issues in the case.[10]

consideration oF APPLICANT’S CASE

[10] The Tribunal notes that it is not required to make explicit reference every relevant piece of information before it because not all relevant considerations will be central or fundamental to every case. See Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271.

Original Protection Visa Application

1. The Applicant was obliged to complete a form when he lodged his protection visa application. The form requested that he provide details about his personal background, his circumstances leading up to his arrival in Australia, and his reasons for applying for a protection visa. He included a brief statement setting out his protection claims attached to the form. In summary, those documents disclosed the following claims.

General Background

1. In his application form, the Applicant stated that he comes from Shandong, China. He stated that he is a citizen of China by birth. A copy of his passport, which he provided to the Department, corroborated this claim. He further said that he does not hold citizenship of any other country.

2. The Applicant further stated that he belongs Han ethnic group, is Christian in terms of faith, and is able to speak, read and write Mandarin.

Arrival in Australia

1. The Applicant arrived in Australia [in] September 2012, having been granted a Subclass 573 (Student) visa which was set to expire on 15 March 2016. During that visa period, he departed Australia [in] December 2012 and returned [in] January 2013. The Applicant again departed Australia [in] March 2013 and returned [in] March 2013.

2. According to the delegate’s decision record, from 7 February 2014 until 26 October 2015, the Applicant became ‘an unlawful non-citizen when he fails to depart Australia and remains in Australia following the cancellation of his student visa.’

3. The Applicant applied for a protection visa on 27 October 2015, which was well after the cancellation of his Subclass 573 (Student) visa. He has not departed Australia since the protection visa application was made.

Protection Claims

1. The Applicant’s original claims for protection are to be found in a written statement of the Applicant dated 24 October 2015. The delegate conveniently summarised those claims as follows:

   (a)The Applicant claimed that his mother is an underground Christian in China who has been persecuted by the Chinese government for organising underground meetings.

   (b)After being introduced to the Christian faith, the Applicant's mother began attending the meetings where she experienced physical and mental benefits. The Applicant said that his mother’s health improved and she now no longer requires insulin injections. These "magical events" caused the Applicant to also develop a firm belief in Christianity.

   (c)However the Chinese Communist Party (CCP) does not allow freedom of belief in China. In March 2013, the CCP attempted to force his mother to give up Christianity and not promote the faith but she refused. On [Date] March 2013, the Applicant said that his mother was monitored and followed everywhere by work administrators. That evening, the Applicant's mother was ‘kidnapped’ and taken to [a] Labour Camp where she was forcibly brainwashed for 15 days before eventually being released.

   (d)On [Date] March 2013, to avoid persecution, the Applicant escaped from China. While in Australia, the Applicant has participated in Chinese church activities and prays for his mother.

   (e)[In] October 2015, the Applicant's mother was arrested by officers from the domestic security division as she returned from an underground meeting. They beat her, tortured her and cuffed her. They also ransacked their home and took away her personal property, including a computer, printer, Bible, and more.

   (f)The Applicant said that he himself has been threatened as a consequence of his mother’s activities. And so he is seeking protection in Australia.

2. The Applicant was invited by the delegate to attend an interview on 15 June 2017 so that these claims could be further explored. However, he did not attend that interview. The delegate proceeded to assess the Applicant’s case on the basis of his written claims that have been summarised above.

Claims before Tribunal

1. At the hearing before the Tribunal on 14 June 2022, the Applicant gave oral evidence concerning his claims for protection that was significantly inconsistent with his original claims. It is summarised as follows:

   (a)The Applicant confirmed that he came to Australia on a student visa in 2012. He said that he returned home to China shortly thereafter because his grandfather was sick. He then came back to Australia in early 2013. His grandfather then passed away and he returned to China in as a result of the death. He then came back to Australia in March 2013 and has remained here ever since. The Applicant admitted that he remained in Australia as an unlawful non-citizen for some two years as a result of his student visa being cancelled before he applied for a protection visa.

   (b)When the Tribunal asked the Applicant why he had applied for a protection visa he said that it was because ‘something happened’ and that ‘an incident happened’ to him when his grandfather passed away. The Applicant explained that, when he was young and living in China, his father passed away. He then began living with his grandparents. He said that his neighbours were Christian and not communist. He said that his grandfather had a property which the government wanted to acquire in order to build a light rail. The price offered by the government in compensation for the compulsory acquisition was inadequate. He said that his grandfather petitioned the provincial government. As a result of his grandfather petitioning the local government, ‘people came to our house to harass us’. The Applicant said that he was there when this occurred.

   (c)The Applicant said that the people who harassed them asked the family to move out of their home. He said that his grandfather argued with them and that there was a physical conflict. He said that his grandfather reported this to the police but the police did not do anything. The Applicant, who was [Age] years of age at the time, said that he himself did not become involved in the physical conflict.

   (d)The Applicant said that, as a result of the physical altercation, his grandfather’s head ‘was broken’. The Applicant said that his grandfather’s physical health was not good because he had heart disease. His grandfather became depressed and passed away.

   (e)The Applicant said that the family property was eventually acquired by the local government and that they received very little compensation for it.

   (f)When the Tribunal asked the Applicant whether this is the reason he does not wish to China, and how the compulsory acquisition of his grandparents’ home affected him, he said that it ‘cast a shadow on [him] very much’. He explained that seeing his grandfather’s experience of being beaten, and then the police doing nothing, had an impact on him. He does not wish to return to China.

   (g)When the Tribunal asked the Applicant whether there were any other reasons he did not wish to China, he said that he dislikes the Chinese system. He said that China advocates its system is free and just but all of those claims by the government are fake. He said that he does not wish to return to China because he cannot tolerate it. He said that he does not want live as if he is in prison or gaol every day.

   (h)When asked whether there were any more specific concerns about returning to China, he said that he had been living in Australia for many years. He said that he believed Australia is a suitable place for him to live. He said he would like to develop his career in Australia.

   (i)The Applicant said that he considers himself to be Christian but not so devout as to go to Church. However, he said that he does continue to pray.

   (j)When the Tribunal asked about the Applicant’s mother, he said that he last had contact with her two weeks prior to the Tribunal hearing. The Applicant did not mention any of the claims relating to his mother that had been the subject of his claims in his original protection visa application.

2. At the conclusion of the Tribunal hearing, the Tribunal read out the claims contained in his original protection visa application concerning his mother. The Tribunal then suggested to the Applicant that his original claims, as compared to those which he had advanced at the Tribunal hearing, were quite different. In response to that expressed concern, the Applicant said that ‘they are the same’ and ‘what happened to my mother is real’.

Country Information

1. The Department of Foreign Affairs and Trade (‘DFAT’) most recently published an information report about China on 22 December 2021 (‘the DFAT report’).[11] However, given the Tribunal’s findings in relation to the Applicant’s credibility (explained below), none of that information is of relevance in this case.

   [11] Department of Foreign Affairs and Trade, DFAT Country Information Report: People’s Republic of China (22 December 2021).

Analysis of Evidence and Factual Findings

Assessing Credibility of Claims – General Principles

1. When assessing claims, the Tribunal must make findings of fact in relation to those claims. In doing so, the Tribunal must assess whether the Applicant’s claims are credible. Credibility is to be assessed by having regard to the individual circumstances of the case and the evidence before the Tribunal.[12]

   [12] Department of Home Affairs, PAM 3: ‘Refugee Law Guidelines’, [15.3].

2. The Tribunal also recognises that applicants may be stressed as a result of being separated from home and family. They may also have difficulty in remembering details of events as a result of the passage of time. Cultural issues may affect the manner in which they answer questions. The nature of their claims, if genuine, may cause them some consternation in expressing their fears. Allowing for such considerations, if the Tribunal finds an applicant to be generally credible, they should be given the benefit of the doubt if they are unable to fully substantiate all of their claims.[13]

   [13] Ibid [15.4].

3. However, this only applies if the Tribunal is satisfied as to the Applicant’s general credibility in the case at hand.[14] An applicant is not entitled to have claims accepted simply because there is a possibility that they might be plausible.[15] While there is no legal concept of ‘onus of proof’ that is to be applied by the Tribunal, in the same way that such a concept is routinely applied in courts of law,[16] the Tribunal must nevertheless be satisfied that there is a reasonable evidentiary foundation that sustains an applicant’s claims. If there is no such foundation, the Tribunal is obliged to reject those claims.

   [14] SZNRZ v Minister for Immigration and Citizenship [2010] FCA 107; UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (2019), [203]-[204].

   [15] SZLPN v Minister for Immigration and Citizenship [2010] FCA 202, [17].

   [16] Sun v MIBP [2016] FCAFC 52

4. Ultimately, it is for the applicant to satisfy the Tribunal that the statutory criteria for the grant of a protection visa are met. The Tribunal is not obliged to assist an applicant in establishing their case. Nor is the Tribunal required to accept uncritically any or all of their claims.[17] It is the responsibility of the applicant to specify all particulars of their claim and to provide sufficient evidence in support of it.[18]

Credibility of Applicant’s Claims in this Case

[17] MIEA v Guo (1997) 191 CLR 559, 596’ Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155, 169-70.

[18] Migration Act 1958 (Cth), s 5AAA(2).

1. In this case, the Tribunal is not satisfied that the Applicant is a witness of truth. The claims advanced at the hearing before the Tribunal were fundamentally different to those which he had advanced in his original protection visa application. Whereas his claims advanced originally concerned the alleged incarceration, torture and brain-washing of his mother because of her Christian beliefs, the claims advanced at the Tribunal hearing concerned the unjust compulsory acquisition of his grandparents’ property without just recompense.

1. That fundamental discrepancy in itself would be enough to raise significant doubt as to the credibility of the Applicant’s claims in this case. However, what is even more concerning in this case is that, when confronted with the obvious difference between his claims, the Applicant denied that there was any such difference. He suggested, emphatically and without any hesitation, that the claims were exactly the same. The Applicant’s preparedness to deny the existence of such stark differences between his claims advanced originally, and those advanced at the Tribunal, has resulted in the Tribunal concluding that nothing the Applicant says is reliable.

2. Because the Tribunal has found the Applicant to be unreliable, it has considered whether there is any other evidence corroborative of the Applicant’s essential claims. He has produced no such evidence. Accordingly, the Tribunal is not satisfied that there is any credible basis for accepting the claims advanced by the Applicant in this case. The Tribunal rejects them in their entirety.

Does the Applicant Meet the Refugee Criterion?

General Principles

1. Section 5H of the Act defines a refugee as a person who, in the case of a person who 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 return to avail himself or herself of the protection of that country.’[19]

   [19] Migration Act 1958 (Cth), s 5H(1)(a).

2. The term ‘persecution’ is not expressly defined in the Act. However, it is commonly understood as referring to ‘an injurious act’ and ‘[a] particular course or period of systematic violent oppression, esp. one directed against the members of a particular religious or political group, race, etc.’[20] Within the context of Australia’s relevant migration and refugee laws, the concept of persecution is limited by the operation of a number of statutory provisions found in the Act. These provisions essentially prescribe the approach that the Tribunal must take when considering whether an applicant has a ‘well-founded fear of persecution’ when assessing their claim of being a refugee. This includes a requirement that persecution must involve ‘serious harm’ to the person who is seeking protection.[21]

   [20] ‘persecution, n.’, OED Online (Oxford University Press, March 2022, Migration Act 1958 (Cth), s 5J(4)(b). Examples of serious harm are listed, non-exhaustively, in s 5J(5). They include: (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 likelihood of any kind, where the denial threatens the person’s capacity to subsist.

Determining whether a person has a well-founded fear of persecution involves making a risk assessment as to what is likely to happen in the future.[22] In this regard, conclusions about what has happened in the past may provide some assistance in working out what is likely to happen in the future.[23] In many cases, an applicant will be relying on their own past experiences as founding their claim for a protection visa. The logical starting point for the Tribunal in such cases is to determine whether the events happened as claimed and, if so, whether they constituted persecution.[24]

Applicant Not a Refugee

[22] MIEA v Guo (1997) 191 CLR 559, 574.

[23] Ibid, 574-5: ‘The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.’

[24] See Abebe v The Commonwealth (1999) 197 CLR 510, [82] (per Gleeson CJ and McHugh J), [192] (per Gummow and Hayne JJ): ‘If a person has been persecuted in the past for a Convention reason, this history may ground an inference that the person subjectively fears repetition of persecution and an inference that this fear is well founded’.

1. The Tribunal is not satisfied that the Applicant has a well-founded fear of persecution because it is not satisfied that there is any credible basis for accepting the Applicant’s claims. Accordingly, the Tribunal finds that the Applicant does not meet the refugee criterion.

Does the Applicant Meet the Complementary Protection Criterion?

General Principles

1. A person will meet the complementary protection criterion if they are a non-citizen in Australia in respect of whom the Tribunal is satisfied Australia has protection obligations because the Tribunal 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 [they] will suffer significant harm’.[25]

   [25] Migration Act 1958 (Cth), s 36(2)(aa).

2. Section 36(2A) provides that a person will suffer ‘significant harm’ if:

   (a)they will be arbitrarily deprived of their life;[26] or

   (b)the death penalty will be carried out on them;[27] or

   (c)they will be subjected to torture;[28] or

   (d)they will be subjected to cruel or inhuman treatment or punishment;[29] or

   (e)they will be subjected to degrading treatment or punishment.[30]

   [26] Migration Act 1958 (Cth), s 36(2A)(a).

   [27] Migration Act 1958 (Cth), s 36(2A)(b).

   [28] Migration Act 1958 (Cth), s 36(2A)(c). Torture is defined in s 5(1) as meaning 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 International Covenant on Civil and Political Rights (‘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.

   [29] Migration Act 1958 (Cth), s 36(2A)(d). Cruel or inhuman treatment or punishment is defined in s 5(1) as meaning 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. It 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.

   [30] Migration Act 1958 (Cth), s 36(2A)(e). Degrading treatment of punishment is defined in s 5(1) as meaning an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission.

3. A ‘real risk’ of significant harm otherwise involves the application of the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ when considering the refugee criterion.[31]

No Real Risk of Significant Harm

[31] Minister of Immigration and Citizenship v SZQRB [2013] FCAFC 33.

1. The Tribunal finds that the Applicant does not meet the complementary protection criterion for the same reasons as contained in paragraph 35 above.

Summary

1. The Tribunal is not satisfied that the Applicant meets either the refugee criterion or the complementary protection criterion. There is no material before the Tribunal to suggest that the Applicant meets the family member criterion. Accordingly, the decision under review must be affirmed.

DECISION

1. The Tribunal affirms the decision not to grant the Applicant a Permanent Protection (Class XA) (Subclass 866) visa.

Dr Jason Harkess

Member