1731308 (Refugee)

1731308 (Refugee) [2021] AATA 3648 (27 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1731308
COUNTRY OF REFERENCE:                   China
MEMBER:Angela Cranston
DATE:27 July 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 27 July 2021 at 1:07pm
CATCHWORDS

REFUGEE – protection visa – China – similar protection claims – alleged political views against the Chinese government –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5J, 36, 65, 438, 499
Migration Regulations 1994, Schedule 2
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 8 December 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of China, applied for the visa on 8 August 2017. In his application, the applicant stated the following:
My name [name deleted], from Weihai city, Shandong Province, China. I arrived astray on [date] July 2017 on subclass 600 visitor Visa.
My political views are completely different from the Chinese Communist Party. I cannot accept their political views. If I go back to China, I would be persecuted inhumanely. Therefore I am writing this letter to a Australian government to seek for protection. I feel much safer here.
I was born in a very traditional family in Shandong province China. I was influenced by Chinese education since I was young so that I always support Chinese Communist Party. My parents was very good citizens in China. They have been complying with the law and they were kind to others. They are always of good characters for their whole life. When I was young, my parents always teach me how to become a good person. They also send me to school to be educated. I was forced to accept the way that Chinese government educated me and I supported Chinese government by taking practical action, such as joining Communist Youth League in China. I remember that when I was studying middle school, my class teacher told us the brilliant history of Chinese communism and encouraged us always support Chinese communism and we would have a good life. At that time, I was young and do not understand what democracy is when I was lack of knowledge. Therefore, I have a good impression on Chinese government. In addition, I have undertaken the military service in China for four years. I thought as a man I should make a contribution to the country to defend the country and protect the people.
However, day by day I found that the things happened in China did not like the story that my class teacher told me. In my hometown the corruption, unfairness happens everywhere from village government to town government from state owned company to private company. If they have special relationship with Chinese Communist Party, they can do whatever things they want. In China, people do not have rights and they suffered for it. For example, governments confiscate private land for public use. I saw many events with my own eyes.
Most people’s lives are very difficult, particular in inland city of China because corrupted businessmen and government officials take away the wealth which should belong to the public or the country. At the moment, the Chinese government continues their buying and selling behaviour and ignoring people’s lives. Those poor people are still struggling for food. I have my principles and I was trying my best to contribute to the society but in return I was eliminated from the society because of my honesty.
Nowadays the non-human rights things as I previously mentioned are still happening in my hometown. The most citizens have no rights to protect their lives or properties. Only very small part of people has rights to get what they wanted. Those people have the special relationship with government or even they work for the local government. Therefore, you can see there is no fair or justice in China. The government never care poor people. They don’t have enough money to see doctors when they are sick or necessary and their children have no money to study. Those kids have no futures.
I like peace, justice and freedom. But my personal experience told me there were no fair and no rights as a normal resident in China. The power and justice belonged to Chinese government and all the people who have special relationship with Chinese official members. In China you can do anything if you have enough money and special relationship.
In China people are not able to express their true thoughts freely. Any speech against Chinese Communist Party is intolerant. One of the well-known examples is Ai Weiwei who was the designer consultant of the main Olympic stadium in Beijing 2008. He joined investigation of many accidents which are caused by political corruption and criticised the Chinese Communist Party. Then he was arrested for no reason in 2011. After government released him he is still under surveillance until now and he is not allowed to go overseas. Another example I know is a famous TV host said something about previous Chairman Mao Zedong of China in an unofficial occasion and soon he was forced to resign from that TV company. Similarly, an Australian reporter was expelled from China because of inappropriate public speech in relation to Chinese government. Sadly people are not able to see or heard the above examples through medias. The government has the right to prohibit the dissemination of such news.
I feel very happy while in Australia because there is peace, justice and freedom everywhere. After I arrived in Australia, I have been deeply attracted by the culture, society atmosphere and lifestyle here. I felt warm which I have never felt in China before. I am honest person and I have deep hatred for the dark government. Staying in Australia, my life quality has been improved and I have no more suffers as before.
Recalling of living in that dark, unethical and no human rights country. I almost felt desperate. After coming to Australia, I felt Australia like other European countries is harmonious and vibrant and people here were nicely and orderly. For example in the public area people stand in a queue wherever they are on train of bus. It is totally different to China I do love this country and adore this full of human rights environment.
The delegate refused to grant the visa and the applicant applied for review.
The applicant appeared before the Tribunal on 7 July 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant stated that he came to Australia and applied for protection in July 2017. He also stated that his English statement was written by a person who the applicant told his personal experiences to and it was correct. He had nothing to add and did not wish to change anything. He also stated that he had not spoken about his personal experiences to any other person.
When asked why he came to Australia, the applicant stated he came on a tour and felt that Australia was very beautiful and rich. He stated after a certain time of understanding he knew Australia was a democratic and free country and he therefore decided to apply for protection. He then stated his family was a traditional family in China, his parents were good citizens, he grew up in this environment and went to school. He stated his schooling was prepared by the Chinese government. The Tribunal asked him what that had to do with his coming to Australia. He stated he wanted to talk about the corruption, injustice and unfairness that he saw happen to other people in China.
The Tribunal put to him that his statement was very vague and asked if anything in particular happened to him that meant he no longer supported the Chinese government. He stated nothing in particular happened to him and he was not persecuted by any Chinese government official. The Tribunal put to him that he said he came to Australia in July 2017 and applied for protection in the same month because after a certain amount of time he understood that Australia had democracy and freedom and asked what he meant. He stated he had spent his life in China and had met many people who had unjust and unfair experiences. He stated he did not have this experience but his friend did so for him he didn’t like this. The Tribunal again asked what he meant by democracy and freedom and asked if he knew what democracy was. He stated he did not know but after three or four years in Australia he enjoyed life in Australia. When asked if he had performed any acts as a result of his new views he stated no.
The Tribunal put to the applicant that his written statement was the same as another protection visa applicant. He stated only he and the person who wrote his statement were there and he could not understand. The Tribunal put to him that it may find that his statement was the same as another protection visa applicant, that he did not know the definition of democracy and this may lead the Tribunal to conclude that he was not a refugee and would not suffer harm if he returned to China. He stated he was afraid of the corruption in China and if he returned to China he would be fearful. When asked what he would be fearful of, he stated he had seen and experienced corruption and injustice which caused him to have fear. He stated if he returned he would be fearful of what he would say and would not know if it would cause him hardship. The Tribunal put to him that he had said nothing in particular had caused him to come to Australia and he had not done anything in Australia. He said he abided by the law and in Australia he had run a [business]. The applicant stated there were potential problems which he could not foresee. He stated if he returned to China he could see unfairness and if he said something publicly he might be hurt by a government official.
Following the hearing, the Tribunal wrote to the applicant as follows:
Your written statemen is similar if not identical to the claims in another protection visa application.
This is relevant because the Tribunal may find your claims and the claims in another protection visa application is similar if not identical to the way they are expressed, with similar if not identical paragraphs or phrases used. This may lead the Tribunal to find that it is not satisfied that you have written these claims or that the claims in your protection visa application are personal to you.
If the Tribunal finds that these claims are not personal to you then, subject to your comments the Tribunal would affirm the decision under review.
The applicant responded stating that he found a lady who helped him translate his statement into English and he entrusted her to help him apply to stay in Sydney, that his information was true and why it was the same as other peoples was a coincidence. He also stated that for more than three years, he had been working hard, he was law abiding and hoped to continue to work and live in Sydney.
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 (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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Initial issue
The Tribunal exercised its discretion (and pursuant to Covid-19 Practice Direction for Migration and Refugee Division dated 27 April 2020) to hold the hearing by telephone. The hearing was held during the Covid -19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter. The Tribunal also had regard to the Tribunal's objective of providing a mechanism of review that is fair, just, economical and quick and the delay to the matter if the hearing was not to be conducted by telephone.
While the Tribunal spoke to the applicant by telephone, the Tribunal's observations were that the review applicant was given ample opportunity to submit all the evidence that he wanted the Tribunal to consider. The Tribunal considers that in these circumstances, it has given the applicant a fair opportunity before, during and after the hearing to provide all the evidence and arguments that he wanted the Tribunal to consider.
Substantive issue
The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugee definition in China and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of his being removed from Australia to China, there is a real risk that he will suffer significant harm.
In his protection visa application, the applicant state that his political views were different from the Chinese Communist Party, that he could not accept their political views and if he returned to China he would be persecuted. At hearing, he stated that he came to Australia in July 2017 on a tour and felt that Australia was very beautiful and rich and that he applied for protection in the same month he arrived because after a certain time of understanding he knew Australia was a democratic and free country.
The Tribunal finds that even though the applicant stated at hearing that his statement was his own and apart from the person who had helped him write it in English, he had not discussed his personal experiences with any other person, the applicant's claims and the claims of another protection visa applicant (AAT file number 1506949, 12 December 2016) are similar if not identical in the way they are expressed, with nearly if not identical paragraphs or phrases used. When this was put to the applicant at hearing, he stated he could not understand that and after hearing suggested it was a coincidence. Given the similar if not identical paragraphs and phrases used, the Tribunal does not accept it could be a coincidence. The Tribunal finds that it is not satisfied that the applicant's claims in his protection visa application have been written by him or are personal to him. In addition, even though he initially stated at hearing that he applied for a protection visa because after a certain time of understanding he knew Australia was a democratic and free country, he was then unable to explain what democracy was.
While the Tribunal accepts the applicant may be happier in Australia, the Tribunal finds the applicant’s evidence in relation to his alleged political views against the Chinese government are vague and unconvincing. While the applicant stated at hearing he was afraid of the corruption and injustice in China these claims are speculative. Neither does the Tribunal accept that the applicant will speak out against any alleged corruption or injustice or that he holds an anti-government political opinion or will express anti-government opinions in the future. The Tribunal is therefore not satisfied, that there is a real chance that the applicant will be persecuted for reasons of his alleged political views.
The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reasons of his race, religion, gender, age, political views or for any other reason.
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 the Refugee definition.
Therefore the applicant does not satisfy the criterion set out in 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). The Tribunal has found the applicant’s claims of future harm speculative. The Tribunal has also rejected the applicant's claims that he holds or will express anti corruption or anti injustice or anti Chinese government political views. The Tribunal is therefore not satisfied that there is a real risk the applicant will suffer significant harm as defined in s36(2A) and s5(1) because of her political views or for any other reason.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).]
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Angela Cranston
Member

ATTACHMENT - 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.
…

[2021] AATA 3648

27 July 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Remedies