1727737 (Refugee)

1727737 (Refugee) [2023] AATA 2377 (5 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1727737

COUNTRY OF REFERENCE: China
MEMBER:Louise Nicholls
DATE:5 May 2023.
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 05 May 2023 at 12:33pm
CATCHWORDS
REFUGEE – protection visa – China – particular social group – land resumption without compensation – physical assault – attacks by criminal gangs – detention – household registration – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 426, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant claims to be a citizen of the People’s Republic of China (China) and is [age] years old. He was born in Sichuan Province, China. The applicant entered Australia as the holder of a Subclass 600 visit visa [in] May 2017.
The applicant applied for a protection visa on 2 June 2017. The applicant provided a copy of an extract of his Chinese passport issued [in] 2016, including the biodata page.
On 31 May 2017 the applicant requested access to documents or information relating to his previous visit visa application. The applicant was provided with a number of documents in response to that request including his application for a Visitor Visa -Tourist Stream completed on 28 April 2017 and supporting documents.
The applicant attended an interview at the Department of Immigration on 13 October 2017.
On the 18 October 2017 the delegate of the Minister for Immigration and Border Protection refused to grant a protection visa under s.65 of the Migration Act 1958 (the Act) because the delegate was not satisfied that the applicant met the requirements for that visa.
This is an application for review of that decision, and it was made on 10 November 2017. The applicant provided a copy of the delegate’s decision together with his application.
On 24 March 2023, the Tribunal wrote to the applicant advising that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing to be held on 27 April 2023.
The invitation advised that if he did not attend the scheduled hearing and a postponement was not granted, the Tribunal may make a decision on the review without further notice or taking further action to enable him to appear before the Tribunal. The letter was sent by email, to the address for correspondence indicated in the review application.
The Tribunal received no response to the invitation letter. As an added precaution, the Tribunal sent the applicant SMS hearing reminders on 19 and 26 April 2023. The SMS reminders failed to be delivered. The Tribunal also considered whether there was any information indicating whether the applicant had provided further contact details since the lodgement of his review application. No further information was found.
The applicant did not appear before the Tribunal on the day and at the time and place he was scheduled to appear. He had not contacted the Tribunal by 27 April 2023, either to seek a postponement of the hearing, or to provide any reason why he could not attend at the scheduled time. The applicant has not communicated with the Tribunal since the lodgment of his application for review in November 2017 other than for a request made on 20 June 2018 for a letter for Medicare to confirm he still had an active matter before the Tribunal on that date. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make a decision on the review without taking any further action to enable the applicant to appear before the Tribunal.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Consideration
The issue in this case is whether the applicant meets the refugee criterion and, if not, whether he is entitled to complimentary protection.
The relevant law is set out in the attachment to this decision.
Background.
The applicant is [an age]-year-old male, born in Xuyong County, Sichuan Province, China, in [specified year].
The applicant claims to have Chinese citizenship by birth. The applicant can speak, read, and write in Mandarin. The applicant states that he is of Han ethnicity. He married [in] August 2008. He provided details of his wife and mother who were both living in China at the time of his application.
No education details were provided in his application form.
The applicant’s passport extract included arrival and departure stamps which appeared to relate to short trips to several Asian countries.
Assessment of evidence and claims.
The applicant’s claims were included in his application for a protection visa. The claims were brief and vague.
The applicant claimed he had a townhouse in his hometown. In 2011, the local government asked him to move because a big shopping centre would be built there. They promised sufficient compensation. However, they took his townhouse, and he did not receive any compensation.
He claimed he was threatened after he refused to sign the compensation contract and gangsters came to his home to threaten his family. They hit his family. When he tried to stop them, they started to beat him causing his family to feel afraid. He tried to complain but no one would help him.
He tried to move to another city to live. However, it was not easy to move with his family. Further, local government officers kept looking for him and threatening his family. He was worried about reporting the incident to higher authorities.
He claimed he would be threatened and beaten if he returned to China. A friend from his hometown told him if he returned, he would be detained once he arrived in China.
He claimed state authorities would not help him because they were the ones who forced him to sign the compensation contract.
He does not think he could relocate because he believes the police would not give him permission to change his household registration.
The applicant provided a copy of the delegate’s decision record with his application. The decision record included details of the applicant’s interview with the delegate on 13 October 2017. At the interview the delegate discussed inconsistencies between the applicant’s visitor visa application and protection visa application. The delegate also found that the applicant gave information in his interview which conflicted with the claims in his protection visa application.
During the interview the applicant stated he could no longer live in China because the government demolished the old family home where he lived with his wife, [children] and his widowed mother. He stated he had inherited the house.
He stated the house and his whole street was demolished for a redevelopment plan. He stated the developers needed the land and the land was being redeveloped for new houses. His family was never paid compensation. He initially gave evidence that he tried to seek compensation in 2011 and then revised that claim and stated it was in 2016 to 2017. He claimed he was badly injured in an incident in which his arm or hand was broken. He claimed that he and affected house owners attempted to obtain compensation at different levels of government and also at the police station where he was detained for three days.
He claimed that if he returned to China, he would continue to seek compensation and he could have his hand or arm broken.
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 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 of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (If the applicant had attended a Tribunal hearing, he would have had an opportunity to clarify his claims and prospective concerns and provide further detailed information; MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
If the applicant had attended a hearing, he could have provided further details about:
·His claims that his house had been resumed and demolished, including further details about when this event took place, how the land had been resumed, whether he and his family had notice of the proposed resumption and what steps they took to obtain alternative accommodation. He could have also explained what job he held at the time and he could have resolved the issue of whether his house was a townhouse or his old family home which had been inherited.
·His claims that he and his family had sought compensation and had not been successful. He could have provided further detail about when he first sought compensation and what steps he took to make his claim. He could also have explained what he meant when he claimed that government authorities had forced him to sign a compensation contract and what he understood this contract to have provided. He could have also given evidence on who had provided the compensation contract and whether he had signed such a document.
·The applicant could have given further information on the time and circumstances of the claimed mistreatment, that is, that he was beaten and detained and that his hand or arm had been broken in an incident. He also claimed that gangsters threatened and hit his family. If he had attended a hearing he could have given evidence about the circumstances of this claimed incident.
·The applicant could have given evidence about his attempt to move to another city, when this took place and for how long and why he had difficulties moving there with his family. He also could have explained why local government officers kept looking for him and threatening his family if he had moved away from his hometown.
·At the hearing the applicant could have explained the reason for those inconsistencies in his claims set out by the delegate in the decision record.
·The applicant could also have explained the circumstances in which he had applied for a visitor visa and why his application and supporting documents appeared to be inconsistent with some of his protection claims.
On the limited evidence available the Tribunal is not satisfied that the applicant’s home in Sichuan was resumed and demolished, or that he was not able to obtain compensation for the loss of his home, or that he complained to local authorities about the resumption. It is not satisfied that he was beaten and detained as a result of his claimed complaint activity or that his family were threatened or hit by gangsters. It is not satisfied that he was either forced to sign a compensation document or that he refused to sign such a document and was mistreated as a result. The Tribunal does not accept his claim that if he returns he will continue to seek compensation and that he could be assaulted by state authorities as a result.
As a consequence, the Tribunal is not satisfied that there is a real chance that if the applicant returns to China now or in the foreseeable future that he will face a real chance of serious harm for reasons of anti-government political opinion, or imputed political opinion.
The applicant has not claimed to fear harm from any other source, and no other claims are apparent on the information before the Tribunal. The applicant has not claimed, and there is nothing to suggest, that he has a well-founded fear of persecution for any other reason listed in s.5J(1) of the Act.
Therefore, the Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
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). However, based on the information before the Tribunal, and the assessment of facts above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China there would be a real risk that he will suffer significant harm. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Conclusion
For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore, the applicant does not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that he is also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Louise Nicholls
Senior Member

ATTACHMENT
CRITERIA FOR A PROTECTION VISA
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). 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.
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.
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). 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).
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.
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.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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.
…
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.
…

[2023] AATA 2377

5 May 2023.

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice