1727531 (Refugee) - [2019] AATA 2481

1727531 (Refugee) [2019] AATA 2481 (16 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1727531
COUNTRY OF REFERENCE:                  China
MEMBER:Louise Nicholls
DATE:16 May 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 16 May 2019 at 11:22am

CATCHWORD
REFUGEE – protection visa – China – Federal Circuit Court remittal – fears serious harm from money lenders – loan sharks – inconsistent evidence – unreliable witness – credibility issues – no substantial risk of significant harm – decision under review affirmed

LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 19
Migration Act 1958 (Cth), ss 36, 48, 65, 91, 424, 438
Migration Regulations 1994 (Cth), Schedule 2
Migration Amendment Act 2014 (Cth)
Tribunals Amalgamation Act 2015 (Cth)

CASES
AMA15 v MIBP (2015) 244 FCR 131
MIAC v SZGUR (2011) 241 CLR 594
MIBP v SZVCH (2016) 244 FCR 366
Minister for Immigration and Border Protection v Singh [2016] FCA 1081
MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081
MZXRE v MIAC (2009) 176 FCR 552
SZEPZ v MIMA (2006) 159 FCR 291
SZGIZ v MIAC (2013) 212 FCR 235
SZRSN v MIBP [2014] FCA 527
SZVCH v MIBP [2017] HCASL 78
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

The applicant claims he is a citizen of the People’s Republic of China (China) and is [number] years of age. The applicant arrived in Australia [in] September 2009 as the holder of a visitor visa and as part of a Chinese tour group. He left the tour group on arrival in Australia and made his first application for a protection visa on 9 October 2009. His application was refused and later applications for merits and judicial review were unsuccessful.
He made a further protection visa application on 1 October 2013 on the basis that he was eligible to have his claims for protection assessed against the complementary protection criterion.
On 29 May 2014 the delegate refused to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act) on the basis that he did not meet the requirements for the visa. The applicant has sought review from the Tribunal.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Procedural history
The applicant first applied for protection on 9 October 2009. The applicant attended a Departmental interview and his visa application was refused on 4 December 2009. The Refugee Review Tribunal (RRT) affirmed the delegate’s decision on 16 March 2010.
The applicant did not hold a visa from 23 April 2010 until he made a further application for a protection visa on 1 October 2013 and he…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1727531 (Refugee)

Details

AGLC: 1727531 (Refugee) [2019] AATA 2481
Case: [2019] AATA 2481
Decision Date: 16 May 2019

CaseChat Overview and Summary

This matter concerned an application for complementary protection by a Chinese national who arrived in Australia in September 2009. The applicant claimed he feared serious harm if returned to China due to substantial debts owed to loan sharks, the compulsory acquisition and demolition of his farmland and storage facility without adequate compensation, and potential mistreatment by government authorities for his opposition to these actions. The applicant also alleged collusion between loan sharks, government officials, and the police.

The primary legal issue before the Tribunal was whether the applicant was entitled to complementary protection. This required the Tribunal to assess the credibility of the applicant's claims regarding his fear of harm from loan sharks and government authorities, and to determine if the circumstances he described engaged Australia's non-refoulement obligations. The Tribunal also considered the procedural aspect of continuing a review after a previous decision had been set aside, noting that it was obliged to determine the review based on the facts as they presented at the time of its current determination, having regard to all previously obtained material.

The Tribunal considered the applicant's oral evidence and documentary material, including his Chinese passport. It noted inconsistencies in the applicant's account regarding his marital status and the nature of his relationship with his wife. The Tribunal found that the applicant was a citizen of China and that China was a receiving country for the purposes of the Act. The Tribunal's reasoning focused on assessing the applicant's claims of persecution and harm, and whether these claims were substantiated by the evidence presented.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

In conducting the review the Tribunal has considered the material provided to the Tribunal and the oral evidence given at the previous hearing held by the Tribunal, differently constituted. Background The applicant is [age] and arrived in Australia [in] September 2009 on a Subclass 676 Visitor Visa as part of [a group]. He claims to be a citizen of China (PRC) from Hebei Province who has mainly lived in [City 1], Gaocheng, Shijiazhuang, Hebei Province. He attended school for [a number of] years, from [year] to [year]. From 1990 to September 2009 he states he was a self-employed [Occupation 1]. He gave no details of any earlier employment. In his documents and at earlier hearings the applicant claimed he was married in October 1982 and he has a wife and three children who remain in China. He claimed he and his wife were divorced. In the hearing held on 8 May 2019 he stated that he and his wife were de facto partners and had never had their marriage registered. When asked about whether he had paid a social compensation fee for his children he stated he paid a large amount of money before they each started school. He claimed that his children were all married; his son was living in a village not far from the applicant’s home village with his wife and [their] children, his daughter] is married, works [and] is living in the city of Shijiazhuang and his [other] daughter is married, works in [a company] and is living in Shandong Province. His mother is living with her [sister] in a village not far from his home village. He is not sure where his former partner (or wife) is living. The applicant has been living in Australia since 2008. He claimed that he has not been working since 2015 when he lost his permission to work. He claimed friends have given him money and he supports himself from those financial contributions. He lives in a share house in [Suburb 1], has a [Bank] account and credit card, a mobile telephone and is very cautious in how he spends his money.Country of reference The applicant claims he was born in China and is a Chinese citizen. He produced his current Chinese passport at the most recent Tribunal hearing. He has consistently claimed that he is of Chinese nationality; he appears to speak Mandarin fluently and is familiar with the geography and culture of Hebei Province, China. Taking into account the available evidence the Tribunal is satisfied that the applicant is a citizen of China and that China is a receiving country for the purpose of s.36(2)(aa) of the Act.What are the applicant’s claims? Essentially the applicant claimed that he borrowed money from money lenders (loan sharks) in China and has been unable to repay the debt and fears he will face serious harm from those money lenders or associated persons if he returns to China. He claimed that his family have been threatened by persons associated with the money lenders. He also claimed that he owned land and a storage facility in his home village. He claimed that his land was compulsorily acquired, his storage unit was demolished and that he did not obtain adequate compensation. He claims that he took certain actions to oppose the acquisition and development of his land and he feared that he would be mistreated by government authorities for reasons of his actions and continued activities if he returned to China.Claims and evidence

Evidence

Evidence Before The Court

He also claimed that he owned land and a storage facility in his home village. He claimed that his land was compulsorily acquired, his storage unit was demolished and that he did not obtain adequate compensation. He claims that he took certain actions to oppose the acquisition and development of his land and he feared that he would be mistreated by government authorities for reasons of his actions and continued activities if he returned to China.Claims and evidence In the application for protection made on 30 September 2013 the applicant claimed he had a [business] and borrowed money from the usurers (the money lenders) for that business. He expected that his business profits would be enough to cover the repayments for the loan however property developers and government officials acquired his fertile farmland with government acquiescence. The applicant is not a skilled person; he has always worked on his farm and his family had been working on the farm for generations. Without the farmland he cannot make money and cannot pay back the debt. If he does not pay back the debt he will be harmed by the usurers and detained by police who have links to the usurers. He will be persecuted by government authorities if he continues to claim proper compensation for the land. He claimed he had been beaten by usurers and their thugs and had been detained by the police for his protests against the authorities. He fears if he returns to China and the debt has not been paid, it will become larger due to compound interest. He claims he will be harmed by the usurers if he cannot repay the debt. As his farmland was used for development he will have no land to live on and will not be able to access adequate compensation. As a result, he will continue to claim his right to the farmland and will be arrested by police. He also claimed that there is a connection between the usurers, government officials and police and he will be punished if he cannot pay back his debt. He claims that the local authorities are corrupt and have colluded with the property developers and will not act to protect him if he returns to China. The applicant attended an interview with the delegate on 17 April 2014. During that interview he stated that he lived for some time in Beijing and some time in Tianjin before he left China in 2009. He visited [Country 1] for one week in February 2009 for a holiday because he felt under pressure and was interested in work and business opportunities. He did not stay in [Country 1] because he did not think it was a nice place. He stated that he owned his home in his village and his mother and son are currently living in that home. He stated he had a storage facility built on that land, but later in the interview he claimed that the government occupied the land and had built a development on it and the storage facility was destroyed. He claimed he borrowed a sum of [specified] RMB (renminbi) for his [business] in 2007. He was making repayments each year after he sold his [products]. In 2008 developers and the government sought to appropriate his farmland and he was unable from this time on to make money from his [business] to repay the debt.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

At the Tribunal hearing on 8 May 2019 he produced his current Chinese passport and a copy of his biodata page was taken.CONSIDERATION The issue in this case is whether the applicant is entitled to complementary protection. The relevant law is set out in Attachment A.What information can be considered on remittal? Where a direction is given to reconstitute the Tribunal, the AAT Act requires the reconstituted Tribunal to continue the proceeding.[5] In completing a reconstituted review, the Tribunal may have regard to any record of the proceeding as previously constituted.[6] This includes any record of evidence taken in the proceeding. The Tribunal must determine the review by dealing with the issues as they present themselves at the time of its determination and according to the facts as the Tribunal finds them to be at that time. [5] s.19D(4) of the AAT Act, inserted by the Tribunals Amalgamation Act 2015 (No.60 of 2015). [6] s.19D(4) of the AAT Act, inserted by the Tribunals Amalgamation Act 2015 (No.60 of 2015). See also SZEPZ v MIMIA (2006) 159 FCR 291 at [39] and MIAC v SZGUR (2011) 241 CLR 594 at [50]. In SZEPZ v MIMA (2006) 159 FCR 291, a Full Court of the Federal Court found that, where an RRT decision has been set aside by a court and the matter remitted for reconsideration owing to a jurisdictional error, it does not follow that all the steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the material obtained when the decision that had been set aside was made and is obliged to continue and complete the particular review and not to commence a new review.[7] [7] MZXRE v MIAC (2009) 176 FCR 552 at [5] North and Rares JJ. In conducting the review the Tribunal has considered the material provided to the Tribunal and the oral evidence given at the previous hearing held by the Tribunal, differently constituted. Background The applicant is [age] and arrived in Australia [in] September 2009 on a Subclass 676 Visitor Visa as part of [a group]. He claims to be a citizen of China (PRC) from Hebei Province who has mainly lived in [City 1], Gaocheng, Shijiazhuang, Hebei Province. He attended school for [a number of] years, from [year] to [year]. From 1990 to September 2009 he states he was a self-employed [Occupation 1]. He gave no details of any earlier employment. In his documents and at earlier hearings the applicant claimed he was married in October 1982 and he has a wife and three children who remain in China. He claimed he and his wife were divorced. In the hearing held on 8 May 2019 he stated that he and his wife were de facto partners and had never had their marriage registered. When asked about whether he had paid a social compensation fee for his children he stated he paid a large amount of money before they each started school. He claimed that his children were all married; his son was living in a village not far from the applicant’s home village with his wife and [their] children, his daughter] is married, works [and] is living in the city of Shijiazhuang and his [other] daughter is married, works in [a company] and is living in Shandong Province.