1801885 (Refugee)

1801885 (Refugee) [2020] AATA 3831 (1 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1801885
COUNTRY OF REFERENCE:                   China
MEMBER:Denise Connolly
DATE:1 September 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 1 September 2020 at 2:50pm
CATCHWORDS
REFUGEE – Protection visa – China – unfair land acquisition – participated in the protest –student visa cancellation– credibility concerns –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 116, 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 Home Affairs on 5 January 2018 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 28 August 2017. The delegate refused to grant the visa on the basis that he was not satisfied the applicant is a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on 31 August 2020 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the English and Mandarin languages.
CLAIMS AND EVIDENCE
Information provided to the Department
When making his protection visa application the applicant made the following claims. He was born on [date] in [Hebei], China. He does not have the right to reside in any other country. He speaks, reads and writes in Mandarin. He has never married. His parents reside in Hebei. He arrived in Australia [in] March 2013 as the holder of [a] Student visa, using his passport issued by the Chinese authorities [in] 2013. Prior to coming to Australia, he lived in Hebei with his parents.
In the written application the applicant claims he took part in a protest against unfair land acquisition and reported corrupt officials. The local government advised that his land would be acquired and compensated for a third of the market price. He disagreed and, together with others, organised a protest at the County Government Building. The police attempted to arrest them but he managed to escape. He heard other protestors were tortured in the detention centre. The police knew he participated in the protest and they wanted to arrest him as well. He was afraid, so he left China and fled to Australia to seek assistance. He claims that if he returns to China he will be persecuted by the police for opposing the Chinese Communist Party and, once he goes into prison, he will die from abuse.
Information provided to the Tribunal
The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records the applicant’s migration history. On 7 March 2013 the applicant was granted [a] Student visa. He arrived in Australia [in] March 2013. On 5 March 2014 [his] Student visa was cancelled under s.116 of the Act. On 28 August 2017 he applied for the protection visa.
The applicant did not attend his scheduled protection visa interview on 5 January 2018.
The delegate formed the view that the applicant’s claims were scant and lacked detail, such as dates of key incidents and the amount of compensation offered. The delegate found the written material was not sufficient for him to be satisfied that the applicant had protested against land acquisition or that he is a person of interest to the police. The delegate was not satisfied the applicant faces harm of any kind in China for the reasons claimed.
At the hearing on 31 August 2020 the Tribunal explained the requirements of the law. The following is a summary of the oral evidence provided by the applicant.
The applicant indicated that a migration lawyer assisted him with his visa application. He is still helping the applicant but is not his representative or authorised recipient. His protection visa application was completed by the lawyer once the applicant had told him his story. The applicant confirmed he was aware of the contents of the visa application and everything claimed in the application is true.
The applicant’s parents live in Hebei in the same house in which the applicant grew up. They have lived there at least since his birth. His father is a [farmer]. His father has always grown crops on the same land. His mother also works on the land. Before he came to Australia he worked on the land.
The Tribunal asked the applicant about his travel to Australia. He indicated he arrived in Australia when he was [age], in about 2017. The Tribunal noted that the delegate had recorded that the applicant arrived in Australia in 2013. The Tribunal asked the applicant why he appeared not to be aware of his arrival date. He indicated he could not remember when he came because it was a long time ago. The Tribunal asked about the visa he held when he came to Australia. He stated he held a Student visa but it was cancelled. The Tribunal asked about the circumstances of the cancellation. He indicated he could not remember when it happened but it was cancelled because he did not have the money to enrol at school. The Tribunal asked the applicant why he did not return to China if he could not afford to study in Australia. The applicant stated he did not think about returning to China. The Tribunal asked what the applicant was doing if he was not studying. He said he was not doing much. The Tribunal asked how he covered his costs of living in Australia. He stated he was [working].
The Tribunal asked the applicant if he had come to Australia primarily to work, given his Student visa was cancelled within one year of his arrival in Australia because he was not studying. The applicant indicated that his primary reason for coming to Australia was to study but his academic performance was poor so he stopped studying. The Tribunal raised its concern that the applicant chose to remain in Australia after a student visa was cancelled and asked why he did not return home in 2014. The applicant indicated that there was a demolition project in China and he had nowhere to live if he returned home. The Tribunal noted that the applicant had stated in his oral evidence that his parents continue to live in the same house where he grew up. It explained that it may not accept the applicant thought he had nowhere to live, given his parents have lived at the same residence since his birth. The applicant indicated that the demolition process takes a long time and that his parents are only living there temporarily. The Tribunal explained that it may not accept that there is any plan to demolish his parents’ home and that it may find the applicant can return to China to live with his parents. The applicant repeated his parents’ property is about to be demolished.
The Tribunal asked the applicant if he did not want to return home because he had performed poorly at study in Australia. The applicant acknowledged that that was part of the reason he did not want to return to China. He also said that if a person does not own property in China they are discriminated against and he does not own property.
The Tribunal explained that it may not accept his written claims made in August 2017 that he was involved in protests against unfair land acquisition, given that three years later his parents continue to reside in the same house and farm on the same land. The applicant then indicated that he did not know what the lawyer wrote in his visa application. The Tribunal asked the applicant if he had any other reason why he could not return to China. After some thought he responded “nothing”.
The Tribunal asked the applicant why he had not attended the delegate’s interview. He indicated he was out of town on the day.
The Tribunal asked the applicant if he knew the particulars of the claims made in the visa application. He indicated he would need to think about it. The Tribunal gave to the applicant a summary of the written claims and noted that they suggest that he is known to the authorities for protesting and wanted for arrest. It asked the applicant if he had any evidence to give as to why he was not aware of those claims. He responded “I can’t say anything”.
The Tribunal explained to the applicant that it may not be concerned that the applicant will be harmed if he returns to China. It asked why it should be satisfied he has a fear of persecution or significant harm in China. He indicated that demolitions have commenced in his hometown. As a person who does not have any money or property he will be discriminated against. The Tribunal explained that it may not accept that those circumstances would result in serious or significant harm. It explained that it may be satisfied the applicant can return to China, live with his parents and subsist there without being harmed. It asked the applicant if he had any other evidence to give. The applicant indicated that he had nothing more to say.
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
Nationality
The applicant claims to be a citizen of China. He provided to the Department a copy of his Chinese passport issued [in] 2013. The delegate was satisfied the applicant provided reliable evidence confirming his identity. Accordingly, the Tribunal finds that the applicant is a national of China and it is his receiving country for the purpose of assessing his claims for protection. There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any other country for the purposes of the Act.
Does the applicant have a well-founded fear of persecution?
The Tribunal has first considered the applicant’s written claims to have been involved in a protest against unfair land acquisition. It notes that the claim is scant on detail. It also notes that the claim was not repeated in the applicant’s oral evidence at the hearing. When its concerns were raised with the applicant he merely indicated he did not know what the lawyer had put in his visa application. Accordingly, the Tribunal does not accept that the applicant took part in a protest against unfair land acquisition. Nor does it accept that the government advised him that his land would be acquired for inadequate compensation. It notes he was only [age] when he came to Australia and his oral evidence is that he worked on his father’s land before he came. Accordingly it does not accept he owns or owned any land in China. It does not accept he reported corrupt officials. Nor does it accept that the police attempted to arrest him but he escaped. It is not satisfied that he is wanted for arrest in China because of his involvement in protests. Given that the Tribunal has not accepted any of these claims, it is not satisfied the applicant fears he will be persecuted by the police for opposing the CCP or that he fears incarceration or abuse for the reasons given. The Tribunal is of the view these claims were manufactured for the purpose of making the visa application.
When asked at the hearing why the applicant had not and cannot return to China he indicated that he would not have a home to go to because his parents’ place is now scheduled for demolition. The Tribunal does not accept this claim. The applicant made his protection visa application in 2017, some three years before the hearing. It does not accept the applicant’s oral evidence that his parents’ home is now about to be demolished. It has formed the view that the applicant manufactured this evidence at the hearing. However, even if it is the case that his parents’ house is about to be demolished, the Tribunal is not satisfied the applicant would suffer serious or significant harm as a consequence.
The applicant indicated that he cannot return to China because he does not have any money or own property and he will be discriminated against. On the basis of the evidence provided by the applicant, the Tribunal is not satisfied he has demonstrated that he will be discriminated against because he does not have money or property. It is of the view this is a speculative claim manufactured by the applicant for the purposes of the application.
When asked by the Tribunal if the applicant had any other evidence to give about why he cannot return to China, the applicant confirmed that he had nothing more to say. The Tribunal is satisfied the applicant had a fair opportunity to give his oral evidence as to why he cannot return to China. On the evidence before it, it is not satisfied that he fears returning to China. It has formed the view that the applicant made the protection visa application to achieve his preferred migration outcome, that is, to remain in Australia permanently.
The Tribunal is not satisfied the applicant has come to the adverse attention of the authorities in China, for the reasons he has claimed. It is not satisfied that he is known by the authorities or will be harmed or arrested in the future if he returns to China. It is of the view he has manufactured claims to fear harm for the purpose of making a protection visa application. On the evidence before it the Tribunal is not satisfied the applicant has a subjective fear of harm or a well-founded fear of persecution in China.
The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reasons of his political opinion, or imputed political opinion, or for any other reason set out in the Act, or that there is a real chance that he would be persecuted for one or more of those reasons. Therefore, he does not meet the definition of refugee. Accordingly, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
Is the applicant entitled to protection under the complementary protection criterion?
As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, it has considered whether he meets the criterion for the grant of a protection visa under the complementary protection criterion.
As indicated above, the Tribunal has not accepted the applicant’s claims to fear harm for the reasons he has claimed. It does not accept he will suffer any harm in the future because of those claims. It has considered his claim that he will be harmed because he does not have money or property. While the applicant may not lead a comfortable life the Tribunal is not satisfied there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm because he does not have money or property. It notes his oral evidence that his parents continue to live in the same house and grow crops and that he previously lived with them and worked on the farm. It is satisfied that the applicant will be able to reside with his parents and work on the farm if he returns to China. It also notes that since being in Australia he has [worked]. It is satisfied that the applicant will be able to secure some form of employment for income, whether that be on the farm or as [an occupation], and he will be able to subsist in China if he returns.
There is no other reliable evidence before the Tribunal to indicate there is a real risk the applicant will suffer significant harm, as defined in the Act, as a necessary and foreseeable consequence of the applicant being removed from Australia to China.
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 is a real risk that he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
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.
Denise Connolly
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.
…

[2020] AATA 3831

1 September 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction