1731981 (Refugee)

[2022] AATA 2816

1731981 (Refugee) [2022] AATA 2816 (29 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1731981

COUNTRY OF REFERENCE:                   China

MEMBER:Nora Lamont

DATE:29 June 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 29 June 2022 at 1:36pm

CATCHWORDS
REFUGEE – protection visa – China – fear of harm from workplace manager and associates – reported manager’s cost-cutting measures to directors and local government – beatings and arrest – credibility – vague and inconsistent claims and evidence – delay in applying for protection and period as unlawful non-citizen – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), 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 dependants.

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 1 December 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 1 August 2017.

3. The applicant appeared before the Tribunal on 4 March 2022 to give evidence and present arguments. However, the applicant said he was at work and did not have enough phone power and could not do the hearing. I adjourned the hearing to 28 April and the applicant again stated he was working and that he could not attend the hearing. I rescheduled the adjourned hearing for 29 June 2022.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. There are no non-disclosure certificates on the applicant’s file.

6. The applicant presented his Chinese passport to the Department and claims he is a citizen of China. He travelled to Australia on a valid Chinese passport. The Tribunal has assessed the applicants claims against China as his country of nationality and receiving country.

7. There is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in a third country for the purposes of s.36(3) of the Act.

   CRITERIA FOR A PROTECTION VISA

8. 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.

9. 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.

10. 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).

11. 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.

12. 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

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’ 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

14. The applicant was born in Chongqing China in [Year]. He is currently separated from his wife who remains in China with his son. He first arrived on a visitor’s visa and for a period of time he was unlawful.

    Claims

15. The applicant’s claims were given to the Department in a personal typed statement and are summarised as follows: [1]

    · The applicant began working as [an Occupation 1] in a ‘[Workplace]’ in 2002 where he discovered he was interested in [Job task] and so transferred to the [Section]. With great effort he graduated from assisting [to] a [Occupation 2] in 2006, and gradually became the [Workplace]’s head [Occupation 2]. The applicant took pride in [his work].

    · In October 2015 the [Workplace] manager retired and was replaced by an individual named [Mr A]. In an attempt to impress his superior [Mr A] adopted measures to reduce costs and thereby increase profits. Staff were forced to resign which affected the [Section]; the applicant approached [Mr A] and attempted to persuade him to stop firing staff. [Mr A] refused to listen and so in order to boost staff morale the applicant used his own funds to buy presents for them, despite being deprived of his three-month bonus by [Mr A].

    · In March 2015 [Mr A] substituted the [Section]’s [Material] with one made from recycled waste [Material] which was hazardous and illegal. The applicant decided to inform his superiors of [Mr A]’s actions but instead of hearing back the applicant was threatened by [Mr A] and told he would be taught a lesson. Several days later the applicant was beaten by some strangers on his way home and warned that if he did not ‘obey’ his life would be at risk.

    · The applicant then decided to report [Mr A] to the government; inspectors were sent to the [Workplace] and found the applicant’s allegations to be true, but [Mr A] bribed them to hide their findings.

    · The applicant then ‘received violent treatment from [Mr A] and his men’ and was arrested by police for having slandered government officials.

    · The applicant attempted to find a new job but was prevented from doing so. He heard through friends that the Australian government would be able to help and protect him and so he came to Australia in December 2016.

    [1] [File number]

16. The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of China, there is a real risk that he will suffer significant harm.

    Tribunal Hearing

17. At the hearing the applicant said that he is going through a divorce from his wife as he has been gone from China for six years. He said his parents and older brother still live in Chongqing.

18. I asked him why he came to Australia and he said that when he was in China he was working there and there was a situation that was not satisfactory to him. I asked him what happened, and he said he reported someone who had brought in bad materials. He was [an Occupation 2] at a [Workplace] and a new manager [Mr A] started and he was bringing in cheap materials and he had a lot of bad arguments with him. He went to his superior and made a complaint about him and he tried to get revenge on me.

19. He said he was walking with his wife and son and 3 or 4 guys beat him up. He said they told him to watch himself. He said he went to the police, but they were useless as it was such a big [Workplace], they had connections to the police. I asked what type of injuries he sustained, and he said bruising and some bleeding. He said after the beating he was arrested by the police and was held at the watchhouse for 15 days. He was beaten by the police whilst he was in custody. I asked why he was arrested, and he said they all were (the others who beat him) but that they let the other people go.

20. He said when he got out of the watch house, he resigned immediately from his job. He said he got another job nearby and was managing a [Section]. But he had lost confidence and then he tried to find a job further away. I asked where and he said Australia.

21. I asked if he could remember the dates and he said it happened in the early part of 2016. I asked when [Mr A] started, and he said October 2016. I asked him if other employees complained like he did and he said they got angry, but he was the head [Occupation 2]. He said [Mr A] made them do overtime and took away his bonus. He said he used bad [Material].

22. I asked if when he came to Australia if [Mr A] did anything and he said he heard the [Workplace] went bankrupt. I asked if he knew what [Mr A] was doing and he said probably working somewhere else.

23. I asked what he feared in China and he said had I heard of this other case in China. I asked him what case and he said if you don’t know don’t bother. I asked him to explain, and he said that in China the government is corrupt and there is mafia everywhere. I asked how this affects him? He said there is surveillance and darkness in China.

24. I asked if he had thought of moving to another place in China and he said when he was a teenager he moved to another city and [worked].

25. He said he works in [Job sector] now and lives in [Suburb]. I asked him why he had a delay in between arriving in Australia and outing in his protection claims. He said he needed to find out what type of country Australia was first. I asked what he thought would happen to him should he be returned to China. He said that work in China will kill him and he will feel depressed. He doesn’t trust them.

26. He asked me what Complimentary Protection was and I explained. He said I had his and his child’s fate in my hands.

    Findings

27. For the reasons that follow I have a number of concerns with the applicants claims.

28. First, there are inconsistencies with the applicant’s oral claims to the Department and his oral claims to the Tribunal. He said to the Tribunal that he was with his wife and son and he was attacked and beaten on the street. He was then arrested along with the people who beat him. However, he told the department that: [2]

    The applicant was attacked at the end of March 2016 – he could not remember the exact date but placed it between the 20th and 30th of March. The applicant had finished his shift at the [Workplace] and was making his way back to his lodgings when four men came out of a darkened street and attacked him. The assailants had machetes and the applicant was cut on his [Body parts], requiring a three-day stay in hospital and six stitches. The attackers had not said anything to the applicant during the incident.

    [2] Decision record AAT Folio

29. When I asked the applicant what his injuries were, he just said some bruising and bleeding. He did not claim they had machetes or that he required a hospital stay or that he required stiches. He did not claim they attacked him after work in the dark, rather he told me he was with his wife and son.

30. His arrest and beating by the police are not found in his written claims or in his oral evidence given to the Department during his interview.

31. At the hearing I asked the applicant after he resigned where did he work, and he said he got a job in the same area as the [Workplace] where he previously worked as a [Section] manager. I also asked him if he had looked at living somewhere else in China and he moved when he was a teenager. Yet at the Department interview he stated: [3]

    After the attack the applicant spent a month at home recovering and made the decision after discussion with his wife not to return to his job. After the month he found employment in Hubei province, several hundred kilometres from the [Workplace], but was unable to remain there. The applicant changed his mobile number so that he could not be contacted by [Mr A] but [Mr A] ran into the applicant’s wife and son in April 2016 and told them to tell the applicant to return to work. The applicant had failed to give the three months’ notice required of him which resulted in the [Workplace] losing money. The applicant ignored this until his wife and child were harassed again in June of 2016 and warned that if the applicant did not comply his family would be harmed. The applicant resigned from his new job and returned to his home town.

    [3] Decision record AAT Folio

32. The applicant’s claims of moving to Hubei Province were not made at the Tribunal hearing even though I asked him explicitly if he had thought of moving to another location. Further, he did not claim his wife had been harassed by [Mr A].

33. In many respects the applicant’s evidence was forced and vague. I accept that the applicant had some work-related issues in China prior to coming to Australia. However, they are not for a refugee reason as per the Migration Act. I do not accept that the applicant was arrested and spent 15 days in the watch house where he was beaten and consider he has embellished his claims for migration purposes.

34. Given these concerns, I do not accept the applicant is a credible witness. For the reasons set out above, I do not accept the applicant’s claims to have been beaten and arrested along with his attackers while his wife and child were with him. It follows that I do not accept that the applicant was arrested for this beating, beaten whilst in custody, and that he spent 15 days in the watchhouse.

35. Given these concerns, I do not accept that if the applicant returns to China, he will face a real chance of persecution from [Mr A], his associates, the police or anyone associated with them. I find that the applicant does not face a well-founded fear of persecution as per s.5J(1) of the Act and therefore the applicant is not a refugee within the meaning of s.5H(1).

36. Nor do I accept that there are grounds for believing that as a necessary and foreseeable consequence of being returned to China, there is a real risk that the applicant will suffer significant harm from [Mr A], his associates, or the police. I am therefore not satisfied that the applicant meets the alternative provisions in s.36(2)(aa).

37. 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

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

    Nora Lamont
    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.

    …