1728933 (Refugee)

[2023] AATA 4541

1728933 (Refugee) [2023] AATA 4541 (25 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1728933

COUNTRY OF REFERENCE:                   China

MEMBER:Mr S Norman

DATE:25 October 2023

PLACE OF DECISION:  Sydney

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

Statement made on 25 October 2023 at 3:00pm

CATCHWORDS
REFUGEE – protection visa – China – land appropriated by local government for development, inadequate compensation and formal complaint – house damaged, wife injured and applicant threatened by village head’s underlings – no response to hearing invitation – applicant’s responsibility to supply facts in necessary detail – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36(2)(a), (aa), 65, 426A
Migration Regulations 1994 (Cth), Schedule 2

CASES
Luu v Renevier (1989) 91 ALR 39
MIEA v Guo (1997) 144 ALR 567
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MIEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 2 November 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant who claims to be a citizen of China, applied for the visa on 3 August 2017. The Department delegate’s decision was lodged with the Tribunal.

   CRITERIA FOR A PROTECTION VISA

2. 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.

   Mandatory considerations

3. 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

5. By hearing invitation letter dated 3 October 2023 (dispatched by email to the authorised recipient), the Tribunal advised the applicant it had considered all the material before it relating to his application, but it 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 on 25 October 2023. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice.

6. The Tribunal also sent two SMS hearing reminder texts to the applicant shortly prior to the hearing (though at the time and date of this decision, it was noted the first SMS text had failed to be delivered).

7. Regarding the hearing, the applicant did not respond to the Tribunal hearing invitation letter, as he was invited to do. Neither did he request the Tribunal hearing be re-scheduled. Neither did he attend the Tribunal at the day and time of the scheduled hearing.

8. Further, the applicant did not attend a Protection visa (PV) interview scheduled for 1 November 2017 at the Department Sydney office.

9. Accordingly, and after considering the evidence, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

   The applicant’s claims:

10. In support of the PV, the applicant claimed:[1]

    [1] PDF – from p.16.

    ·     He is a Chinese citizen from Anhui Province. His family remain in China

    ·     In China, the applicant had leased land on which he planted fruit, and this had generated a good income for him

    ·     In 2013 the local government appropriated this leased land in order to build infrastructure. In 2013 the applicant was given compensation but he later learnt the amount should have been far more– he believed the village head was corrupt

    ·     The applicant had then asked the village head for an explanation but he was asked to leave

    ·     The applicant then made a complaint at a relevant department; he was told to fill out some forms and await the result

    ·     Several days after lodging the report the applicant was beaten by people sent by the village head; he was then detained at the local police station

    ·     After his release the applicant decided to make another report, sending a complaint to the local government. Two days later the applicant received a call from his wife that the village head and some others had gone to the applicant’s home and damaged his belongings; the applicant’s wife was also injured   

    ·     The applicant’s family was then threatened repeatedly by the village head’s underlings. Unable to live in that way, the applicant’s wife divorced him [in] June 2015

    ·     The applicant was monitored after that, with people following him and preventing him from obtaining work

    ·     The applicant had no income, as ‘they did not let him work’, and his life was ‘getting worse and worse’ until he learnt from a friend that the ‘Australian government pays attention to human rights’

    ·     He said that in Australia he felt a freedom he had never felt before. He does not wish to return to China

    Assessing the applicant’s claims:

11. The Tribunal has seen a photocopy of the applicant’s passport on the Department file (expiry date: XXX 2026[2]) and I accept he is a citizen of China, and that China is his receiving country. However, the mere fact that an applicant claims to fear harm 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/s claimed. Further, the Tribunal is not required to accept uncritically any and all the allegations made by an applicant (Randhawa v MIEA (1994) 52 FCR 437, p.451). That being said, the applicant did not provide sufficient detail to satisfy the Tribunal (ie) that his farming land was compulsorily obtained; or that he had petitioned against the compulsory land acquisition; or that he had come to the adverse attention of anyone in China for any reason he claimed, or that he would come to the adverse attention of any person in China, should he return.

    [2] PDF – P.56.

12. It remains for the applicant to satisfy the Tribunal that all of the statutory elements for the grant of protection are made out (MIEA v Guo & Anor (1997) 144 ALR 567 p.596); and although the concept of the onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 p.288), the relevant facts of the individual case will have to be supplied by the applicant themselves, in as much detail as is necessary to enable the decision maker to establish the facts. A decision maker is not required to make the applicant’s case for him or her (Prasad v MIEA (1985) 6 FCR 155 pp.169-70; Luu & Anor v Renevier (1989) 91 ALR 39 p.45). The Tribunal acknowledges this guidance had been developed for the purposes of considering refugee protection claims, however, I am satisfied it is materially applicable to the assessment of complementary protection claims.

13. That said, based on the claims he has provided, the Tribunal is not satisfied all the statutory elements for the grant of protection are made out. Accordingly, I do not accept the applicant has a well-founded fear of persecution for a reason prescribed in the Act; or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm.

14. Neither is there any issue, squarely raised by the evidence though not articulated, that has satisfied the Tribunal the applicant has a real chance of suffering serious or significant harm in China.  

    Finding:

15. For the reasons given above, the Tribunal is not satisfied 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 considered the alternative criterion in s.36(2)(aa). However, and for the same reasons, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

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

    DECISION

17. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Mr S Norman
    Member