1715333 (Refugee)

[2020] AATA 5943

1715333 (Refugee) [2020] AATA 5943 (22 December 2020)

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DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  1715333

COUNTRY OF REFERENCE:                 China

MEMBER:  Dr Jason Harkess

DATE:  22 December 2020

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 22 December 2020 at 9:18am

CATCHWORDS
REFUGEE – protection visa – China – dispute with local authorities about demolition of house – detention and threats – consent to decision on papers – no opportunity to test credibility or claims – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA(2), 36(2), 65, 423A(2), 425(2)(b), (3)
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SZLPN v Minister for Immigration and Citizenship [2010] FCA 202
SZNRZ v Minister for Immigration and Citizenship [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

Protection Visa Refusal – Application for Review

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

   [1] The Minister for Immigration and Border Protection is now known as the Minister for Home Affairs.

2. The Applicant originally applied for the protection visa on 13 May 2016. The visa was refused on 4 July 2017. The Applicant lodged his review application with the Tribunal on 17 July 2017.

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’).

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

2. If granted, a Subclass 866 protection visa permits a non-citizen to remain in Australia indefinitely.

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 that they are either:

   (a)a person in respect of whom Australia has protection obligations because the person is a ‘refugee’ (‘the refugee criterion’);[3]

   (b)a person in respect of whom Australia has protection obligations because of other ‘complementary protection’ grounds (‘the complementary protection criterion’);[4] or

   (c)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 protection 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).

Reasons for Initial Refusal

1. In his original application form lodged with 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 protection 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. The Applicant also provided a copy of the decision to the Tribunal.

Issues for Determination by Tribunal

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

   (a)whether he meets the refugee criterion; or

   (b)whether he meets the complementary protection criterion.

Determination of Application without Hearing

1. The Tribunal wrote to the Applicant by letter dated 26 November 2020, inviting him to appear before the Tribunal at a hearing of his application that would provide him with an opportunity to give evidence and present arguments in person (‘the hearing invitation’). The hearing invitation indicated that the hearing was scheduled to take place by phone at 12:00 PM on 22 December 2020. The hearing invitation also indicated that if the Applicant did not participate in the hearing the Tribunal may proceed to make a decision in relation to his application without enabling him any further opportunity to participate in a hearing. Attached to the hearing invitation was a ‘Response to hearing invitation – MR Division’ form which the Applicant was asked to complete and return to the Tribunal within seven days.

2. On 2 December 2020, the Applicant responded to the hearing invitation by completing the ‘Response to hearing invitation – MR Division’ form. In that form, the Applicant communicated that he would not be participating at the scheduled hearing and that he consented to the Tribunal making a decision on the papers without taking further steps to allow him to appear.

3. By the operation of ss 425(2)(b) and 425(3) of the Act, in circumstances where an applicant has declined an invitation to attend a hearing of the review and has consented to the Tribunal deciding the review without appearing before it, the Tribunal may proceed to make a decision on the review without conducting a hearing. The effect of s 425(3) is that the applicant now has no entitlement to a hearing. The Tribunal has therefore proceeded to make a decision on the basis of all the information before it.

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 delegate’s decision record;

   (b)the Applicant’s original written visa application;

   (c)all written material filed by or on behalf of the Applicant in relation to this case;

   (d)other relevant documents on the Tribunal and Department files;

   (e)the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs;[6]

   (f)country information assessments relating to Malaysia that have been prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes.[7]

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

   [7] 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 materially significant to the determination of the issues in the case.[8]

CONSIDERATION OF APPLICANT’S CASE

[8] 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 and his circumstances leading up to his arrival in Australia and his application for a protection visa. The form also requested that his set out his reasons for seeking a protection visa.

2. The Applicant’s claims were accurately summarised in the delegate’s decision record. In short, the Applicant claimed that on 12 September 2015, local authorities commenced to knock down and destroy his family home. He claims that his grievance with local authorities resulted in his arrest and incarceration for two days. When he appealed to higher municipal authorities, he claimed he was incarcerated for a further three days. He claimed that during his captivity he was threatened on a daily basis and told to cease pursuing his grievance over the destruction of his home otherwise he would be killed. Upon his release, he says he was surrounded by a group of ruffians who threatened him but eventually let him go. The Applicant says he returned to his temporary accommodation but remained scared. He left China and arrived in [Country] [in] January 2016. [In] April 2016 he left [Country] and arrived in Australia where he has remained ever since. He claimed that he feared returning to China because his safety was at risk.

3. The Applicant was subsequently invited to and attended an interview with a delegate of the Minister on 8 June 2017. The delegate’s decision indicates that Applicant’s protection claims were explored during this interview and that the delegate had serious concerns about the credibility of the Applicant’s claims. It was ultimately on this basis that the Applicant’s protection visa application was refused by the delegate.

Analysis of Evidence and Factual Findings

Assessing Credibility – 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.[9]

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

2. The Tribunal is mindful of the difficulties faced by protection visa applicants, including issues related to the use of interpreters, and nervousness and anxiety in a formal Tribunal hearing setting. 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 posed by the Tribunal. The nature of their claims, if genuine, may cause them some consternation in giving evidence and expressing their fears to the Tribunal. There may also be genuine reasons for applicants not being able to produce documents to corroborate their claims, in circumstances where one might expect such supporting documents to exist.

3. If the Tribunal finds an applicant to be generally credible, they should be given the benefit of the doubt where they are unable to fully substantiate all of their claims.[10] However, this only applies if the Tribunal is satisfied as to the Applicant’s general credibility in the case at hand.[11] An applicant is not entitled to have claims accepted simply because there is a possibility that they might be plausible.[12]

   [10] Ibid [15.4].

   [11] 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].

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

4. Furthermore, the Tribunal has particular statutory obligations relating to the drawing of adverse inferences pertaining to the credibility of an applicant’s case when a claim is raised or evidence presented in the review application that was not advanced before the making of the primary decision now under review.[13] Such an adverse inference is to be drawn if the applicant does not have a reasonable explanation as to why the matter was not raised until the later stage of the review application.[14]

   [13] Migration Act 1958 (Cth), s 423A.

   [14] Migration Act 1958 (Cth), s 423A(2).

5. 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.[15] It is the responsibility of the applicant to specify all particulars of their claim and to provide sufficient evidence in support of it.[16]

Veracity of Applicant’s Claims and Factual Findings

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

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

1. In this case, the Tribunal has elected not to participate in a hearing before the Tribunal in circumstances where credibility was obviously a major issue before the delegate. Even if the Tribunal were to put aside the delegate’s credibility findings, the Tribunal is not in a position to test the veracity of the Applicant’s claims, as contained in his original protection visa application, without him presenting himself for questioning at a hearing. In these circumstances, the Tribunal is not prepared to accept any of the Applicant’s claims.

Conclusion

1. The Tribunal is not satisfied that the Applicant meets either the refugee criterion or the complementary protection criterion.

DECISION

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

Dr Jason Harkess

Member