1726801 (Refugee)

[2023] AATA 2526

1726801 (Refugee) [2023] AATA 2526 (29 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1726801

COUNTRY OF REFERENCE:                   China

MEMBER:Alan McMurran

DATE:29 June 2023

PLACE OF DECISION:  Sydney

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

Statement made on 29 June 2023 at 5:15pm

CATCHWORDS

REFUGEE – protection Visa– China – applicant failed to provide additional information to support claims – personal dispute with his employer – fears a possible vendetta from his local mayor – no well-founded fear of persecution – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 424, 425, 427,499

Migration Regulations 1994, Schedule 2

CASES

MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
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. This is an application lodged 1 November 2017 for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 13 October 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of China, applied for the visa on 25 November 2016. The delegate refused to grant the visa on the basis that the applicant did not meet the refugee criteria under ss 36(2)(a) of the Act. The delegate did not accept that the applicant faces a real chance of persecution in China, as the applicant’s receiving country, for one or more of the reasons mentioned in s.5J(1)(a) of the Act.

3. The delegate further found that there was not a real risk of serious harm to him should the applicant be removed to China and therefore the applicant was not a person to whom Australia owes protection obligations outlined in s36(2)(aa)of the Act (the complementary protection assessment).

4. The Tribunal is satisfied as to the applicant’s Chinese identity based on his produced passport[1] information, and as determined by the applicant’s narrative in the application form, and his biometrics, accepted by the Department in an identity check conducted by testing of the applicant on 16 December 2016. The Tribunal accepts that information.

   [1] Produced from the Department’s file [deleted]; passport issued on [date]/2015 expiry date [date]/2025.

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

   Tribunal process

6. The applicant is unrepresented, both before the Tribunal and in his application to the Department.  

7. At the time of lodgement of his application to the Department, the applicant stated he had received no assistance. He provided a postal address at [Suburb 1] in Sydney together with an email address. He provided the Tribunal the same email address. The applicant was notified at his given [Suburb 1] address by the Department on 13 October 2017, by registered post, with a copy of the decision now under review.

8. On 1 November 2017, the applicant lodged his application for this review and sent an email to the Tribunal, using his recorded email address, attaching a copy of the Application for Review, and a copy of the letter he said he had received from the Department dated 29 September 2017, requesting he attend an interview to discuss his claims with a Department officer.

9. The applicant explained that he had “received my interview letter but accidentally missed the date” (for the interview which he had not attended). He further stated that he “was wondering if my application for 866 got declined or not because I didn't receive a refusal letter”. The Department’s decision letter, as was the interview request letter, were both sent to him at the same address at [Suburb 1]. The decision letter was sent by registered post and was not returned. He received the interview letter, which he acknowledged he had received and had attached to his email to show the Tribunal. It is also clear that he did know the decision was to refuse the visa as he had lodged this application for review. He did not explain how he had received one letter but not the other sent to the same address and how he came to know his visa was refused. The application to the Tribunal contained a new street address for the applicant at [Suburb 2] in Sydney, but with the same email address as given to the Department previously.

10. On lodgement of his application, the Tribunal sent an acknowledgement to the applicant’s given email address. No issue has arisen concerning email communications with the applicant and the Tribunal and in accordance with the requirements of s 441A of the Act. The applicant did not provide a copy of the Department’s decision with his application, which the Tribunal received with a copy of the Department file [deleted].

11. During the Tribunal review process, no further inquiries or communications were exchanged with the applicant from the acknowledgment of the application by the AAT on 4 November 2017, until constitution to a Member on 5 April 2023.

12. On 6 April 2023, the Tribunal sent a letter to the applicant, inviting him to provide information. The letter set out details of the delegate’s decision and sought information as to how the applicant met the refugee criteria. Relevant provisions of the Act were extracted and included in the letter. The letter included the Tribunal’s contact details as to how to respond. The applicant did not respond.

13. On 13 April 2023, the Tribunal sent an invitation to the applicant to attend an in-person hearing with an interpreter, where requested, for 3 hours, at 10.30am on 7 July 2023. Importantly, the invitation included relevant links to the Tribunal’s relevant Practice Direction and for contact. It asked the applicant to provide all documents, including any witness statements intended to be relied upon no later than one week beforehand by 30 June 2023. A hearings’ information Fact Sheet was also included and a telephone number provided for contact. No response was received to the invitation.

14. On 25 May 2023, upon reviewing the file, the Tribunal sent a letter to the applicant under s424(2) inviting the applicant to provide information. That letter repeated the earlier request made on 6 April 2023, noting no response had been received and set 8 June 2023 as the time for giving a response. The letter warned the applicant that a failure to respond within the time given for the response meant that the applicant would lose any entitlement under the Act he might otherwise have to appear at a hearing to give evidence and present arguments.

15. The Tribunal is satisfied that the letter was sent in accordance with the contact details maintained on the Tribunal’s file as provided by the applicant and in accordance with s441A of the Act. There was no indication to the Tribunal that the transmission was not received. The applicant has not responded to the invitation, or at all.

16. On 14 June 2023, the Tribunal wrote to the applicant setting out the chronology of communications with the Tribunal and advised that as there had been no response to the invitation, the applicant had lost the right to appear. The Tribunal has checked all the contact details and is satisfied that contact with the applicant has been made in accordance with the Act and Regulations and at the nominated email address provided, which has remained unchanged throughout the process. The Tribunal letter also gave information to the applicant as to how to contact the Translating and Interpreting Service, should he require assistance from that service.

    No hearing

17. No request has been made to adjourn the process, and no suggestion made from the applicant that he was unable to respond with information as invited or to participate in a hearing.

18. S424C applies in this instance, where the applicant has been invited under s424 to provide information. S424C(1)(b) provides that where the applicant has been invited in writing to give information and does not do so before the time for giving it has passed, the Tribunal may make a decision on the review without taking any further action to obtain the information.

19. S425(3) provides that where s424C(1) or (2) applies, the applicant is not entitled to appear before the Tribunal. The Tribunal finds in this case that s425(3) applies and the applicant has lost any further entitlement he might otherwise have had to appear to make submissions and provide oral evidence and argument.

20. The Tribunal is required to act in a fashion which is both ‘fair and just’.[2] The Full Federal Court has held that failure to properly consider whether a case might be adjourned, when dealing with a request or making an ‘unreasonable refusal’ to adjourn, may amount in some circumstances to jurisdictional error by the decision-maker[3].

    [2] The Act, s 422B(3).

    [3] MIAC v Li (2012) 202 FCR 387

21. In this instance there has been no request made to adjourn the proceedings, for example, to allow the applicant to obtain further assistance or other representation. But nonetheless, the Tribunal has considered whether it should still adjourn the review of the delegate’s decision in the exercise of its discretion under s427(1)(b) of the Act.

22. There has been some significant delay between lodgement of the review application, and opportunity for the applicant in that time to make inquiries about the review, and to seek assistance, and to provide information, as many applicants do, and to ask about progress if there is a concern about the delay. The applicant has not done so.  

23. The Tribunal has found no reason to adjourn the process of its own volition, given the lack of any communication from the applicant or on his behalf and without such information as might have been provided when invited, so as to warrant an adjournment. The Tribunal is mindful of its obligation under s2A of the Administrative Appeals Act 1975 to pursue the objective for its decision-making of providing a mechanism of review that is fair, just, economical, informal and quick. Trying to balance those requirements, where fairness is paramount, against the need for efficiency in the process, and taking into account the significant delay in this case, not of the applicant’s making, the Tribunal has found on balance this is not a case where an adjournment is warranted.

24. On 14 June 2023, the Tribunal’s email informed the applicant that the hearing had been cancelled. The Tribunal has waited until 29 June 2023 but has heard nothing further from the applicant nor from anyone else on his behalf. The Tribunal accordingly has decided to proceed to a decision on the available information at the time of its decision and without a hearing.

    CRITERIA FOR A PROTECTION VISA

25. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

26. 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.

27. The relevant provisions and applicable criteria provided for by the Act, are extracted in the attachment to this decision.

28. The Tribunal has set out the legislative framework below, and the mandatory considerations and following that, consideration of the applicant’s claims and submissions.

    Issues on review

29. The issues arising from the relevant provisions that are required to be determined by the Tribunal are as follows:

    (a)Is the applicant a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion?, that is:

    (i)Is the applicant outside his country of nationality?;

    (ii)Does the applicant have a well-founded fear of persecution (s.5J)?; and

    (iii)Does the real chance of persecution relate to all areas of China, being the applicant’s country of origin (s.5J(2))?

    and, if not,

    (b)Is the applicant a person in respect of whom Australia has protection obligations on complementary protection grounds?, that is:

    (i)Are there substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that the applicant will suffer significant harm?, and, if so,

    (ii)Would it be reasonable for the applicant to relocate to an area of China where there would not be a real risk that the applicant will suffer significant harm?, or,

    (iii)Could the applicant obtain from an appropriate authority in China, protection such that there would not be a real risk that the applicant will suffer significant harm?, or,

    (iv)Is the real risk one faced by the population of China generally and not faced by the applicant personally?

    (c)Is the applicant a member of the same family unit as a person in respect of whom Australia has protection obligations, as a refugee, or on complementary protection grounds, and does that person hold a protection visa of the same class?

30. In considering these issues, the Tribunal notes that the fact that a person claims fear of persecution and consequent ‘serious harm’ for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ and therefore a ‘real chance’ arising, or that it is for the reason claimed.

31. 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.

32. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the decision-maker to establish the relevant facts. Reliable fact-finding creates an objective basis for decision-making as opposed to speculation or assumption which carries no weight.

33. A decision-maker is not required to make the applicant's case for him or her. 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. Section 5AAA of the Act makes it clear that it is an applicant’s responsibility to specify all the particulars of the protection claim(s), and in respect of whom Australia has protection obligations and to provide sufficient evidence to establish and support the claim(s).

34. The Tribunal notes and has regard to the decision of the Federal Court in BZADA v MIC and RRT [2013] FCA 1062, where Rangiah J held at [21]:

    “As his Honour correctly found, the Tribunal was unable to reach the requisite level of satisfaction to grant the applicant a visa given his failure to attend the hearing and the Tribunal’s inability to test and examine his claims in evidence. The relevant statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the criteria for the grant of a protection visa depends not on a particular matter being established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.”

35. Whether the applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future. The Tribunal acknowledges that to do so without the benefit of a hearing is often made more difficult.

    Legislative framework - Refugee

36. 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.

37. 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 themselves of the protection of that country: s 5H(1)(a).

38. 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).

    Well-founded fear and ‘real chance’ of persecution

39. 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.

40. The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[4]

    [4] Chan Yee Kin v MIEA (1989) 169 CLR 379.

41. Furthermore, the decision-maker in considering the application of the ‘real chance’ test, as it is referred to, needs to pay regard to the “reality not the appearance” [5] of a real chance, meaning careful consideration of the factual material available and the individual circumstances and context.

    [5] Per Mansfield J in SRBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 79 ALD 723 at [30]; see also BEQ19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 621 per Farrell J.

42. Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’.[6]

    [6] FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].

43. If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b),(c).

    Serious harm

44. For the purposes of s 5J(4) of the Act, s 5J(5) provides that the following are instances of serious harm: (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.

    Modification of behaviour

1. Section 5J(3) provides that a person does not have a well-founded fear of persecution if he or she could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country.

2. However, this does not apply to a modification that would conflict with a characteristic that is fundamental to the person’s identity or conscience, or that would conceal an innate or immutable characteristic. It does not apply to a modification that would require the person to alter his or her religious beliefs (including by renouncing a religious conversion), conceal his or her true religious beliefs, cease to be involved in the practice of his or her faith, conceal his or her true race, ethnicity, nationality or country of origin, alter or conceal his or her true political beliefs.

3. It would not apply to an applicant having to conceal a physical, psychological or intellectual disability, enter into or remain in a marriage to which that person is opposed, accept the forced marriage of a child, alter his or her sexual orientation or gender identity, or conceal his or her true sexual orientation, gender identity or intersex status.

   If not a refugee-Complementary protection

4. 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’).

5. 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.

   Significant harm

6. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A) of the Act: s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act

7. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where:

   ·     it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm;

   ·     where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or

   ·     where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.

8. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition, and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.[7]

   Relocation

   [7] (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180])

9. Under s 36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm.

10. The Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC[8] and SZFDV v MIAC[9] which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant, and the impact upon that person of relocation within his or her country.

    [8] SZATV v MIAC (2007) 233 CLR 18;

    [9] SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

    Mandatory considerations

11. Subsection 499(1) of the Act provides that the Minister may give written directions to a person or body (e.g. the AAT) having functions or powers under the Act, if the directions are about the performance of those functions, or the exercise of those powers. Sub-paragraph 2A of section 499 requires that a person or body must comply with a direction.

12. Ministerial Direction Number 84 of 24 June 2019, issued under s 499 of the Migration Act 1958, states that:

    Where the Department of Foreign Affairs and Trade has prepared country information assessment expressly for protection status determination purposes, and that assessment is available to the decision maker, the decision maker must take into account that assessment, where relevant, in making their decision. The decision maker is not precluded from considering other relevant information about the country.

    Reports take into account relevant and credible open source reports, as well as information obtained on the ground.

13. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’, and ‘Complementary Protection Guidelines’ as prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade[10] (DFAT) expressly for protection status determination purposes, and to the extent that they are relevant to the decision under consideration.

    [10] DFAT Country of Origin Information Reports (COI) prepared with Department of Home Affairs, Country of Origin Information Services Section (COISS). Dependence

    Background

    Visa history

14. The applicant’s visa history is limited to the information available from the Department’s file. This discloses that the applicant arrived onshore on a Subclass FA 600 Visitor visa on [date] September 2016. The applicant had applied for the visitor visa granted on 15 August 2016. He has remained onshore since that time and is currently on a Bridging visa A, granted 5 December 2016.

15. The applicant lodged his protection application for a XA Protection (Subclass 866) visa recorded on 25 November 2016.

16. The applicant was invited to an interview with a Department officer on 13 October 2017 to consider his protection claims for the visa. According to Department records, the applicant did not attend the interview to discuss his claims, and which the applicant has acknowledged to the Tribunal, explaining that he “missed the date” for the interview.

17. The Department decision notes that the written material in support of the visa, comprised the application and the applicant’s passport, but did not provide ‘a sufficient basis’ to conclude that the applicant was at risk of harm ‘of any kind’ on his return to China.

    Summary of Application information

18. The only information available for this review as to the applicant’s claims is found in the application form[11] which includes the applicant’s answers to the relevant questions[12]. The only other document provided is a copy of his Chinese passport. No other written submissions or evidence in the form of documents or witness statements or supporting or corroborating material from the applicant has been produced or submitted. In effect, the Tribunal is considering the same information as was before the Department.

    [11] Department file [deleted]

    [12] Application form QQ 43-48

19. The application form sets out personal details of the applicant all of which are not repeated here. In summary, the applicant is a [age] year old citizen of China of Han ethnicity, living in Guangdong province before travelling to Australia. He married in 2002 and has an [age] year old daughter. His immediate family all remain living in Guangdong province. He states he was employed in China as a factory worker from October 1998 until August 2016. The applicant has not identified any Australian-citizen relatives or Permanent residents living in Australia and travelled on his own when he left China as a tourist. He has travelled to [Country 1] for 1 month for a holiday in February 2016. He states he has no other contacts in Australia and has not applied to migrate to any other country.

20. The applicant’s exit from China was checked and authorised by the MPS Exit and Entry Administration which reveals that the applicant’s departure was security-checked before he left, freely and without hindrance.

    CONSIDERATION OF Claims and evidence

21. The issue in this case is whether the applicant, who is outside his country of nationality, is a refugee and meets the refugee criterion for protection in s36(2)(a) of the Act, as required and set out in the legislative summary above, based upon the information provided in this instance in the answers to the questions in the application form. There is no other available information submitted for consideration.

22. In the alternative, where the Tribunal finds the applicant is not a refugee, the Tribunal must consider whether the applicant meets the complementary protection criterion in s 36(2)(aa) of the Act.

23. The applicant’s protection claims are contained in his answers to the relevant questions, numbered 43-48 of the application form. The answers verbatim are set out as follows:

    Q43

    I LEFT THE COUNTRY TO RECIEVE PROTECTION SO THAT I WOULDN'T HAVE TO GO TO JAIL FOR SOMETHING IDIDN'T DO. I WORKED IN A [FACTORY] FOR QUITE A WHILE AND WHEN I FIRST STARTED, EVERYONE SAID I HAD TALENTS BUT IN MY OPINION, IT WAS BECAUSE I WAS WORKING AND TRYING HARDER THAN EVERYONE ELSE. I STARTED OFAS A BEGINNER AND I WAS ONLY ALLOWED TO [DO BASIC WORK] FTC. BUT AFTER A FEW YEARS, I WAS GIVEN THE POSITION OF A SMALL TEAM LEADER AND I WAS INCHARGE OF MAKING SURE EVERYONE WAS DOING WHAT THEYRE SUPPOSED TO DO, I LIKED MY POSITION BUT I WANTED TO AIM HIGHER. ONE DAY, WE WERE TOLD THAT THEY WERE GOING TO CHOOSE A NEW MANAGER AS OUR OLD MANAGER IS GOING TO RETIRE, THE FIRST THING THAT WENT IN MY MIND WAS, I HAVE TO GET THE POSITION, SO I WENT AND CHECKED THE LIST OF QUALITIES THAT WE HAD TO HAVE SO THAT WE COULD BE QUALIFIED AND SURPRISINGLY, I ALREADY ACHIEVED ALL OF THEM. I WENT AND TALKED TO THE PERSON IN CHARGED OF IT AND SPOKE TO THEM EXPECTING TO GET THE FORM TO APPLY. BUT INSTEAD OF CONGRATULATING ME, HE TOLD ME THAT THERE WAS THE POINT OF TRYING BECAUSE THE MAYOR'S SON WAS GOING TO GET THE POSITION AND NO ONE COULD DO ANYTHING ABOUT THAT BECAUSE IF ANYONE SAID A NO TO THE MAYOR, WE WOULD ALL BE PUNISHED AND TREATED BADLY LIKE NOT GIVEN ANY CHANCES TO DO ANYTHING ELSE. AFTER HEARING THAT, I WAS VERY UPSET ABOUT IT AND IN MY OPINION, HE KNOWS NOTHING ABOUT [OUR JOB], HE PLAYS COMPUTER GAMES 24/7 WHY DOES HE HAVE THE RIGHT TO BE THE MANAGER OF THE WHOLE COMPANY, I JUST THOUGHT THAT IT WASN'T RIGHT.

    Q45  

    BEFORE 1 LEFT, THEY TOLD ME THAT IF! DON'T JUST BE QUIET ABOUT EVERYTHING AND JUST LET THE MAYOR'S SON TAKE THE POSITION, THEY WOULD BLAME ME FOR STEALING PARTS [USED] IN THE FACTORY AND SELLING THEM ILLEGALLY TO OTHER PEOPLE AND EARNING MONEY AND BY REPORTING THAT, IT WOULD LEAD TO ME BEING IN JAIL FOR 10 YEARS. AFTER HEARING THAT, MY FAMILY TOLD ME THAT IT WOULD BE BEST FOR ME TO LEAVE THE COUNTRY TO ANOTHER COUNTRY SO THAT I CAN GET PROTECTION AND NOT HAVE TO GO TO JAIL FOR SOMETHING I DIDN'T DO. I USED MY HARD WORK TO GET TO WHERE I AM TODAY, I STARTED WITH [BASIC WORK]. THAT IS HOW 1 REACHED THE TEAM MANAGER POSITION I HAVE TODAY. JUST BECAUSE THE OTHER PERSON IS THE MAYOR'S SON DOESN'T MEAN THAT THEY CAN JUST SKIP THE WHOLE QUEUE OF WORKING FROM THE BOTTON.
    AFTER 1 COULDN'T DO ANYTHING, THE MAYOR'S SON MADE IT TO THE MANAGERS POSITION. A WEEK LATER, HE STARTED TO FIRE THE PEOPLE THAT WERE DOING COMFORTABLE BUT HARD JOBS AND STARTED BRINGING HIS FRIENDS INTO THE COMPANY. HE STARTED CHANGING THE RULES AND RISING THE PRICES OF ACTIVITIES. AROUND 2 WEEKS LATER, THERE WAS AN OBVIOUS DROP IN THE AMOUNT OF MONEY MADE AND THAT WAS WHAT THEY WERE GOING TO BLAME ME FOR, THEY WERE GOING TO BLAME ME FOR THE MONEY DROPTHEY WERE GOING TO SAY THAT MONEY WAS LOST WAS BECAUSE I STOLE FROM THE COMPANY.

    Q 46

    1 THINK THAT THE MAYOR WOULD HARM ME BECAUSE HE ALREADY KNOWS THAT I AM TRYING FOR THE SAME POSITION AS HIS SON AND IF I GET IT THEN IT WOULD MEAN THAT I WOULD GO TO JAIL FOR SURE BECAUSE THEY ALREADY THREATENED ME THAT THEY WOULD BLAME ME FOR STEALING PARTS AND MAKING MONEY BUT EVERYONE KNOWS THAT I DIDN'T DO THAT BUT AT THE SAME TIME, NO ONE CAN SAY ANYTHING BECAUSE THEY ALSO THREATENED THAT IF ANYONE SAYS ANYTHING, THEY WOULD ALL BE FIRED AND KICKED OUT OF THIS COMPANY WHICH NO ONE WANTS TO HAPPEN SO OBVIOUSLY, I WOULD JUST BE KICKED OUT OF THE COMPANY.

    Q47

    I KNOW THAT THIS WILL HAPPEN IF I GO BACK BECAUSE THE MAYOR HAS THE POWER TO DO IT, IF HE ONCE SAID THAT HE WIL DO IT, HE WOULD ACTUALLY DO IT, IF HE SAYS THAT HE WILL PUT ME INTO JAIL, I KNOW THAT HE WOULD. BEFORE I LEFT, THEY TOLD ME THAT IF I DON'T JUST BE QUIFF ABOUT EVERYTHING AND JUST LET THE MAYOR'S SON TAKE THE POSITION,THEY WOULD BLAME ME FOR STEALING PARTS [USED] IN THE FACTORY AND SELLING THEM ILLEGALLY TO OTHER PEOPLE AND EARNING MONEY AND BY REPORTING THAT, IT WOULD LEAD TO ME BEING IN JAIL FOR 10 YEARS. AFTER I TOLD MY FAMILY THAT I AM AT RISK OF BEING PUT TO JAIL, THEY TOLD ME TO GO SOMEWHERE SAFE AND HIDE SO THAT THEY CAN'T GET TO M E. JUST BECAUSE THE OTHER PERSON IS THE MAYOR'S SON DOESN'T MEAN THAT THEY CAN JUST SKIPTHE WHOLE QUEUE OF WORKING FROM THE BOTTON. AFTER I COULDN'T DO ANYTHING, THE MAYOR'S SON MADE IT TO THE MANAGERS POSITION.

    Q 48

    I DON'T THINK THAT THE AUTHORITIES CAN PROTECT' ME IF I GO BACK BECAUSE IT'S ME, A NORMAL PERSON GOING AGAINST THE MAYOR,THE HEAD OFTHE WHOLE SUBURB. IT IS OBVIOUS THAT THEY WOULD PREFER TO BE ON THE SIDE OF THE PERSON THAT HAS MORE POWER AND MORE MONEY. AFTER A FEW DAYS, I WENT HOME AND THERE WOULD ALWAYS BE RUBBISH AROUND MY HOUSE BLOCKING THE DOORWAY, ONCE I EVEN GOT A FINE AND A NOTIE SAYING THAT I WAS DUMPING RUBBISH EVERYWHERE. I REPORTED IT TO THE POLICE BUT THEN I REALISED THAT THEY DIDN'T CARE BECAUSE THE MAYOR ALREADY PAID THEM MONEY AND HENCE THE REASON THAT I STILL HAVE GO'ETEN NO REPLY FROM THEM SAYING ABOUT MY CASE. APART FROM THAT, I STILL HAD TO PAY MY FINE. I ALREADY HAVE AN EXAMPLE OF WHY THE MAYOR WOULDNT PROTECT' ME AND I HOPE THAT IT WOULDN'T HAPPEN AGAIN AND I DON'T WANT TO BE PUNISHED AND PUT INTO JAIL FOR SOMETHING I DID NOT DO. I REALLY WANT TO MOVE TO A NEW COUNTRY TO HAVE A NEW BEGINNING AND A NEW START TO EVERYTHING. IF I GO BACK, I WOULD BE PUT INTO JAIL FOR SURE AND THEN EVERYTHING WOULD BE AN END FOR ME”

24. In summary, the applicant contends that:

    ·He had a personal dispute with his employer while applying for promotion as a manager in his workplace when he was overlooked;

    ·He felt he deserved the manager’s role but it went instead to the mayor’s son because the son had influence from his father; the son took the job and the company started to lose money;

    ·The applicant decided to leave and was warned to do nothing and not report it afterwards because if he did, he could be falsely accused of stealing parts for sale illegally and go to jail for casing the company financial loss;

    ·His family suggested he leave the country for his own safety because the company’s downturn in business might be blamed on him and he fears going to jail;

    ·He thinks the mayor might still hurt him and authorities would not protect him because of the mayor’s influence; he gave as an example that he had found rubbish dumped around his house for which he was fined;

    ·He made a complaint to the police about the rubbish but still had to pay the fine and the police did nothing because they were corrupt and paid by the mayor and if he returns, he will be put in jail.

    Findings -  Is the applicant’s claim made out?

25. The applicant gives no timeline at all as to when the claimed events occurred. He states he took a holiday to [Country 1] in 2016 for a month, but the holiday is not said to coincide with his applying for the position or on leaving the company or the timing of his departure and the claimed dispute. He does not say that he has been accused of anything or harmed or arrested or detained by police. He does not say that he made any complaint at all. He does not explain what took place with his employer, who warned him about not reporting anything and when that occurred, and who threatened him if he did not go quietly. It is a private dispute where he fears a possible vendetta from his local mayor. He does not appear to have availed himself of China’s workplace laws which at the time, 2017, heavily favoured workers.[13]

    [13] Media -China Briefing - - 20 June 2017

26. It is likely that if the events as stated occurred, it was not long before the applicant left for Australia in September 2016. There is nothing to update the current circumstances in his hometown, the situation with the mayor and local police, and what may have happened since then, and whether any personal ‘threat’ concerning him still exists so that it could be concluded that there is a reasonable likelihood the applicant may be harmed in the foreseeable future, were he to return. As there was no hearing, and no responses from the applicant to requests for information, the Tribunal was unable to explore these claims in any detail. The applicant himself has not taken the opportunity to provide information and further particulars to detail the events which happened and the fear he claims to hold.

27. The Tribunal is not required to accept uncritically any or all allegations made by an applicant. Nor is it required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out or obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. The Minister (or the Tribunal on review) 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[14].This is consistent with the well-settled proposition that it is for the applicant to make his or her own case.

    [14] Section 5AAA of the Act, inserted by item 1 of sch 1 to the Migration Amendment (Protection and Other Measures) Act 2015 (Cth) with effect from 14 April 2015

28. The Tribunal has carefully considered the applicant’s claims as detailed in his application for a protection visa, both individually and cumulatively. The Tribunal did not offer the applicant the opportunity to attend a hearing, when he failed to provide additional information in support of his claims, and where he had been advised of the delegate’s decision, and the need to respond to the Tribunal within a particular time.

29. Without the benefit of the provision of further information or documentation from the applicant and in the absence accordingly of a hearing, the Tribunal is unable to be satisfied of the claims raised by the applicant in his application. The Tribunal does not accept the applicant’s statements at face value and gives them no weight. The claims are unsubstantiated by facts and are based on supposition and assumption. The fact is from the statements that the applicant has not been harmed or threatened by police, and the asserted threat arises only if the applicant were to make a complaint about the influence of the mayor. On his statements, he made no complaint and does not intend to do so. There is no evidence provided to link the fine the applicant says he received for rubbish dumping to the private dispute with the employer. There is no evidence produced to base a finding that the police in this instance, who are not identified, have themselves acted corruptly or in a threatening manner and so as to discriminate against the applicant and to bring the claim within the refugee criteria identified in s 5J(1) of the Act.

1. The Tribunal finds on the bare facts available that without more detail, the claims are nothing more than fanciful, far-fetched and implausible. It is not possible on any reasonably objective basis to conclude from the available information that the applicant is at risk of serious harm and has a well-founded fear of persecution in China in the foreseeable future, so as to meet the refugee criterion.

   DFAT country information report – Republic of China December 2021

2. In accordance with Direction No.84 made pursuant to s.499 of the Act, the Tribunal has also had regard to country information assessments prepared by the Department of Foreign Affairs and Trade with the assistance of COISS.

3. From the most recent DFAT country information report, referenced as ‘Report People’s Republic of China 22 December 2021’, the Tribunal has extracted relevantly the following assessments. The report takes into account a “general, rather than exhaustive country overview” and “based on DFAT’S on-the-ground knowledge and discussions with a range of sources in the People’s Republic of China and Australia.”[15]

   [15] Purpose and Scope at ch 1; paragraph numbers refer to the extracted paragraphs from the report.

4. STATE PROTECTION

   Police

   5.1 The Ministry of Public Security oversees the police force, which is organised into specialised police agencies and local, county, and provincial jurisdictions. These agencies often collectively and individually called the local ‘Public Security Bureau’ (PSB). The People’s Armed Police (PAP) is a paramilitary force organised under the People’s Liberation Army (PLA) responsible for internal security and stability (such as combatting riots and terrorism, but also domestic monitoring of perceived security threats), maritime security and support of the PLA. The PAP is also active in Xinjiang. Regular police generally do not carry firearms and gun crime is rare in China.

   5.2 Police maintain public order and social stability, which are overriding priorities for the CCP. Loyalty to the Party is important among police ranks, as it is in all government positions. Police, including at lower levels, can be investigated for corruption (which is a threat to stability and Party legitimacy) and loyalty offences.

   5.3 Police carry out day-to-day crime fighting activities and investigate crimes. Day-to-day crime rates are low in China but where crime does occur, DFAT understands that police investigate thoroughly and prosecute alleged criminals.

   5.4 Police are subject to little oversight, having the ability to issue their own warrants without the involvement of a court (or ignoring regulations where this is required). For example. according to the US Department of State Human Rights Report, while investigations into police killings are often announced, the findings of those investigations are often not announced. DFAT is not able to verify this. Freedom House’s 2021 Freedom in the World report describes police impunity as ‘the norm’.

   5.5 Police have access to enormous amounts of data and other evidence. Social media is monitored and an unprecedented number of closed-circuit television cameras have been rolled out during the COVID-19 pandemic as part of efforts to control the virus.

   5.6 For information related to criminal procedure, see Arbitrary Arrest and Detention.

   ARBITRARY ARREST AND DETENTION

   4.8 Arbitrary arrest and detention is commonly reported, especially in cases of political sensitivity and to exercise political leverage. This may, in instances, take the form of enforced disappearance, as family and friends may not know that a person has been taken into detention. Safeguard Defenders, a Spanish human rights NGO, alleged in a 2020 report that some detainees were forced to take false names to further obscure their location from friends, family and the public.

   4.9 Residential Surveillance at a Designated Location (RSDL) is sometimes used to detain activists, human rights lawyers and government critics, as well as people accused of national security or terrorism crimes or serious corruption. It may also be used if a suspect does not have a fixed place of residence. RSDL may be used to detain people for up to seven months before their formal arrest or release.

   4.10 The primary distinction between RSDL and ‘black jail’ (a secret, extra-legal detention facility) is that RSDL is a formal feature of the Chinese legal system. RSDL also reportedly often entails treatment more severe than in black jails, and occurs in government-run, custom fit-for-purpose facilities, whereas black jails are quasi-administrative holding centres for petitioners and criminals.

   4.11 Administrative detention is imposed for crimes of a minor nature that are not serious enough to warrant criminal prosecution and punishment under the Criminal Procedure Law or Criminal Law. It can involve detention in one’s home, an apartment rented by police, a hotel or other premises. It is imposed by public security organs at the local (county) government level. While there are various forms of administrative detention in China with different procedures and time-limits, the maximum period of administrative detention for any one act is 15 days, and where multiple periods of administrative detention are imposed concurrently for several acts, the maximum period of detention is 20 days.

   Internal Relocation

   5.24 Internal migration has been a key feature of Chinese economic and social life for decades. Migration to cities in the wealthy eastern provinces is particularly popular. A third of the population live in a place other than where their residence is registered with a local government. Urbanisation has been a key feature of China’s rapid economic development. There are no legal impediments to relocation, but the hukou system may limit freedom of movement in practice. As Mandarin is spoken throughout the country, DFAT assesses that Han Chinese[16] have little difficulty in resettling in different parts of the country (see Race/Nationality).

   [16] This applicant is Han Chinese

   Summary

5. In summary, the Tribunal finds the available country information assesses the following:

   ·     Those Chinese citizens with a higher profile and who are effectively activists critical of the State face a high risk of official persecution and repression.

   ·     High profile political activists as well as critics of the Chinese Communist Party and the government may be targeted and monitored and may come to the attention of authorities through their activities and may be at high risk of detention and imprisonment.

   ·     Petitioners asserting, agitating and complaining of local corruption or any other matter critical of the State are subject to a high risk of official discrimination.

   ·     ‘Petitioning’ authorities is nonetheless a common approach adopted by citizens seeking to complain over compulsory acquisitions and inadequate compensation and to reach resolution of private disputes in a less complex environment; the government officially encourages resolution but outcomes may vary greatly from locality to locality and many claims are beset by corruption and where police fail to intervene.  

   ·     Personal disputes tend to be localised and the applicant is able to move to other safe areas within China, removed from the area of the dispute and where internal relocation is a common event in China for many Chinese.

   ·     Policing is subject to little oversight and will vary according to context and location, but in summary, may also be aligned with the degree of activism and profile on the part of a complainant.

   ·     Corruption and corrupt officials who may support local crime are at risk of prosecution and imprisonment themselves but the actual level of prosecutions in such cases is uncertain and inconsistent.

6. On the available information, the applicant does not claim to have a profile as an activist or troublemaker.  The State through police and local government is generally not likely to intervene in personal disputes between citizens unless an issue critical of the government or highly-placed officials is pressed or it is orchestrated or organised and the organisers are targeted to avoid further or possible threats to public order and stability. There may be instances of corrupt behaviour however where police may choose either not to act, or alternatively, to arbitrarily arrest and detain individuals because of political interference from other corrupt officials. There is no evidence to support such a conclusion in this instance and in the context of the applicant’s labour dispute.

7. The Tribunal finds that in this instance there is no reliable evidence to satisfy a finding that the State will offer no protection to the applicant in the future. The available country information shows that police are often most interested in preventing public disorder, and threats to the standing of the government where and when arising. There is no information available in this case to show that the police, who are unidentified, are in fact acting corruptly against the applicant. There is no evidence police or authorities have any interest at all in the applicant who was freely able to depart the country in 2016. There is no evidence of any current threats against him in 2023. There is no evidence the applicant has made any complaint or petition about his treatment when employed, since 2016, other than what he says arose before his departure when he complained about rubbish dumping and was fined.

   Application of Department Policy – Guidelines – Procedural Instruction[17]

   [17] 15 November 2022

8. The Department’s Procedural instruction, in the interests of consistency in approach, guides all Protection visa decision-makers assessing whether a person seeking protection in Australia, will engage Australia’s protection obligations because the person is a refugee in accordance with the provisions in the Act. The Tribunal, where relevant, must have regard to such guidelines, but is not bound to follow them where to do so might lead to an inconsistency with the Act or Regulations.

9. As referred to in the guidelines, there must be a ‘real chance’ of persecution following from these claims, and serious harm, in the applicant’s home region, and which chance is not far-fetched or remote, and which is a real chance of an event (such as likely detention and imprisonment) occurring in the future, and with a reasonable degree of likelihood.[18]

   [18] DOHA Refugee Law Guidelines at 3.12.1(p.57 of 140)

10. It is likely in the absence of evidence in the foreseeable future of any intention on the part of the applicant to raise a petition against the mayor or government authorities for his treatment when employed, that the applicant in this instance would be at any risk of persecution in the foreseeable future. What is more likely is that the applicant would seek to resolve any employment issue using available country employment law. Available country information indicates that Chinese citizens are subject to comprehensive employment laws with an emphasis on consultation and which include disputes over employment terms and conditions and termination and severance.[19] There is little involvement by the State where for the most part, disputes are privately managed.

    [19] See e.g. thelawreviews.co.uk/title/the-labour-and-employment-disputes-review/china

11. Furthermore, the likelihood of persecution appears remote in the current context because of the length of time which has elapsed since these events occurred, possibly in late 2016, and the absence of any contemporary information about those who the applicant contends may have threatened him in the past, or whether the unidentified police who were involved in 2016 would not protect him, and where country information is that the Chinese government is now more attentive to attempting to prosecute corruption by State perpetrators generally.

    Refugee Law Guide

12. The Tribunal’s Refugee Law Guide notes that ‘persecution’ may still arise in the circumstances of an individual dispute[20] and reference is made to the decision in Applicant A v MIEA[21], where Brennan CJ notes:

    “The feared “persecution” of which Art 1A(2) speaks exhibits certain qualities. The first of these qualities relates to the source of the persecution. A person ordinarily looks to “the country of his nationality” for protection of his fundamental rights and freedoms but, if “a well-founded fear of being persecuted” makes a person “unwilling to avail himself of the protection of [the country of his nationality]”, that fear must be a fear of persecution by the country of the putative refugee’s nationality or persecution which that country is unable or unwilling to prevent.[22] [Tribunal’s highlighting]

    [20] Not being one legislated under s 5J(1)

    [21] (1997) 190 CLR 225 at 233.

    [22] Applicant A v MIEA (1997) 190 CLR 225 at 233.

13. Available country information shows that the incidence of failure by the State authorities including police in China to protect ordinary citizens is not reported as universal, but may be endemic, and may be inconsistent depending upon location and circumstance and personal profile. Such failure may still be considered sufficiently related to the context of ‘serious harm’ through “unwillingness to prevent” as to amount to persecution within the meaning of the Act and which will depend upon individual circumstance and context. The High Court has noted “a clear case for surrogate protection” may arise even in the context of persecution by non-state agents[23], as is contended for by the applicant.

    [23] See MIMA v Khawar (2002) 210 CLR 1 at [19] per Gleeson CJ, citing Horvath v Secretary of State for the Home Department (SSHD) [2001] 1 AC 489 at 497–8.

14. The applicant’s fear of unwilling surrogate protection in this case is subjective and appears on both the past events claimed, and on a foreseeability test, as both far-fetched and remote. Where there is no evidence of any details of past relevant events, such as when and in what circumstances the applicant left the company, or whether he had any contact with the mayor or police at all, the Tribunal can place very little weight upon statements that the applicant will not be protected in the foreseeable future by reluctant State authorities, who might be corrupt and unwilling to protect him.

15. For these reasons, the Tribunal does not accept that the applicant faces a well-founded fear of persecution in the foreseeable future and a real chance of serious harm should he return to China and is therefore not a refugee within the meaning given by the Act.

    Complementary protection and relocation - what if the applicant were to relocate to another part of the country?

16. The Tribunal has considered the guidelines aligned against the application in this instance but found nothing cumulatively in the context provided by the applicant that might require the Tribunal not to be guided by policy in consideration of the Tribunal’s decision.

17. Policy points to the need for consideration of the likelihood or foreseeability of a ‘real chance’ of persecution based on the available objective information, and foreseeability of persecution, not only in the applicant’s local area, but anywhere in China.

18. The Tribunal has found on the available information that there is no real chance of persecution of the applicant either in the foreseeable future on his return to his country of origin, either in his former local area and province, with his family, or anywhere in China he might choose to locate.

19. This is because the applicant’s issue arose in his hometown and the available country information shows that many millions of Chinese are continually and safely relocating from time to time, from their hometowns to all parts of the country, and there is nothing to prevent the applicant himself from doing so.

20. His generalised concern that if he were to make a complaint on his return, which he does not particularise and does not propose to do, means that “it would lead to me being in jail for 10 years” is not substantiated and is not the basis in s 5J(1) for a well-founded fear of persecution of the applicant anywhere and everywhere in China.

21. It could be, on the basis of a contextual political opinion where an applicant was clearly on the available information opposed to the government, and with a personal profile accordingly. But that is not the case as postulated in this instance. Rather, it is the possible though not established case of a simple private employment dispute, with nothing to do with government or the State as perpetrator, and the details of which have not been satisfactorily explained. Similarly, the harm claimed is not explained nor the likelihood of any further harm occurring in the future where the applicant himself takes no action, and the applicant could return home to Guangdong, or, if he chose, elsewhere in China, should he subjectively still fear serious harm upon his return.

    Conclusion

22. The Tribunal finds that the applicant does not have a well-founded fear of persecution and a real chance of suffering serious harm either on his return to China or at any time in the foreseeable future. The Tribunal rejects the applicant’s claims as far-fetched and remote and not substantiated on the limited available information from him for this review.

23. 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).

24. 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).

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

26. 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.

100.   Accordingly, the applicant does not satisfy the criterion in s 36(2).

DECISION

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

Alan McMurran
Member
-  Extract from Migration Act 1958

Attachment 

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.

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