1719352 (Refugee)

[2018] AATA 1432

1719352 (Refugee) [2018] AATA 1432 (2 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1719352

COUNTRY OF REFERENCE:                  China

MEMBER:Jane Marquard

DATE:2 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 02 May 2018 at 12:18pm

CATCHWORDS
Refugee – Protection Visa – China – Religion – Local Church – Applicant failed to attend hearing – Limited evidence of claims

LEGISLATION
Migration Act 1958, ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 426A, 499
Migration Regulations 1994, Schedule 2

CASES
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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

APPLICATION FOR REVIEW

1. The applicant claims to be a citizen of the People’s Republic of China (China).

2. He first arrived in Australia [in] October 2012 on a [temporary] visa. That visa was cancelled on 28 June 2013. After that date the applicant remained in Australia unlawfully until he applied for the protection visa.

3. He applied for a protection visa pursuant to s.65 of the Migration Act 1958 (the Act) [in] July 2017.

4. The application was refused by the delegate of the Department of Immigration and Border Protection (the Department) 1 August 2017.

5. This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).

   CLAIMS AND EVIDENCE

6. In summary, the applicant claims that he fears returning to China as he sent Local Church materials to a friend in China. The friend was warned by police, and told to warn the applicant not to return to China.

   Evidence before the Department

7. A summary of the evidence provided by the applicant to the Department in his application forms, and supporting documents, is set out below:

   ·He came to Australia [for a particular purpose];

   ·He sent Local Church material to a friend in China;

   ·This friend was warned by the police in regards to the receipt of the material;

   ·His friend asked him to send more material about the Australian Local Church;

   ·His friend was told to warn the applicant not to return to China.

8. The applicant did not attend an interview scheduled at the Department on 1 August 2017, stating that he was unwell.

   Departmental decision

9. A copy of the decision by the delegate of the Department dated 1 August 2017 indicates that the delegate did not accept, on the brief evidence before the Department, that the applicant had sent materials to China, or that his friend had been warned by authorities. The delegate also noted the significant delay in making the protection visa application and was not satisfied that the applicant met the refugee or complementary protection criteria.

   Evidence before the Tribunal

10. On 16 February 2018 a letter was sent to the applicant at the email address provided by him to the Tribunal in connection with the review. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 3 April 2018. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision without further notice. A text message was sent to the applicant’s mobile telephone number reminding him about the hearing. No response was received. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing nor did he contact the Tribunal to explain his failure to appear. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

    ASSESSMENT OF CLAIMS AND EVIDENCE

11. The issue in this case is whether the applicant meets the refugee or complementary protection criteria.

12. In coming to a decision the Tribunal has taken into account evidence before the Department and this Tribunal, as summarised above.

13. A summary of the relevant law is set out in Attachment A.

14. The issue in this case is whether the applicant meets the refugee criteria, and if not whether he is entitled to complementary protection.

15. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

16. The assessment of the claims and evidence is set out below.

    Nationality

17. The applicant provided a copy of his passport to the Department and stated in his application that he was a citizen of and born in China. The Tribunal accepts on the evidence before it including his personal particulars that he is a citizen of China, and that China is the receiving country for the purposes of the complementary protection provisions.

    Findings of fact

18. When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of difficulties faced by refugee applicants, including issues related to language, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. All this is taken into account in these findings.

19. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.    

20. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’ (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196).

21. As the applicant did not appear at the scheduled hearing, the Tribunal was unable to discuss his evidence with him and obtain detail about the claims. Some of the matters which the Tribunal would have discussed with the applicant are:

    ·His own religious beliefs;

    ·Who the friend was who asked him for Local Church materials and why, and when he was asked;

    ·The friend’s involvement with the Local Church;

    ·Where the applicant accessed materials and why he sent them to China;

    ·What materials he sent;

    ·His friend’s interactions with authorities and the nature of warnings;

    ·Why he took so long to apply for protection after arriving in Australia and why he remained in Australia unlawfully without applying for protection; and

    ·What he fears about returning to China.

22. The Tribunal is unable to be satisfied, on the basis of the brief and limited evidence provided by the applicant to the Department, that:

    ·The applicant sent Local Church materials to a friend in China;

    ·This friend was warned by the police in regards to the receipt of the material;

    ·His friend asked him to send more material about the Australian church;

    ·His friend was told to warn the applicant not to return to China; and

    ·That the applicant fears returning to China.

23. Given that the Tribunal is not satisfied that the applicant sent Local Church materials to a friend in China which led to his friend being warned by police, the Tribunal is also not satisfied that the applicant fears returning to China for this reason. The Tribunal is unable on the brief and limited evidence before it, and without hearing the applicant’s evidence first-hand, to be satisfied that the applicant has a genuine fear of serious harm if he returned to China in the reasonably foreseeable future, because he sent Local Church materials to China, or for any other reason. Furthermore, as discussed in the delegate’s decision, the fact that the applicant did not apply for a protection visa for four years after arriving in Australia also suggests that he did not have a genuine fear of returning.

24. The Tribunal is therefore not satisfied that there is a real chance of persecution were the applicant to return to China in the reasonably foreseeable future. This is because the applicant has not claimed, and the Tribunal is not satisfied that, the applicant suffered any harm in China in the past. Furthermore, the Tribunal is not satisfied that the applicant sent Local Church materials to China and that as a consequence his friend was warned, and told to warn the applicant about returning to China. Therefore the Tribunal is not satisfied that there is a real chance of serious harm from authorities because he had sent materials to China. The applicant has not claimed he fears harm for any other reason and the Tribunal is not satisfied that he fears harm for any other reason.

25. The Tribunal is not satisfied therefore that the applicant has a well-founded fear of persecution for reasons of religion or any of the other reasons set out in the legislation, were he to return to China in the reasonably foreseeable future.

26. The Tribunal has also considered whether the applicant meets the complementary protection criteria.

27. As the Tribunal is not satisfied that the applicant sent Local Church materials to China, and there is no suggestion that he fears harm for any other reason, the Tribunal is also not satisfied that there is a real risk of significant harm were the applicant to be removed from Australia to China.  

28. The Tribunal is not satisfied therefore that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China there is a real risk of significant harm.

    CONCLUDING PARAGRAPHS

29. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

30. 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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

31. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

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

    Jane Marquard
    Member

    
    

    ATTACHMENT A

    RELEVANT LAW

    CRITERIA FOR A PROTECTION VISA

33. 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.

34. 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.

35. 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).

36. 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.

37. 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

    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.

    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.

    …