1802641 (Refugee)

[2023] AATA 4856

1802641 (Refugee) [2023] AATA 4856 (18 December 2023)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  1802641
COUNTRY OF REFERENCE:                   China

MEMBER:  Sean Baker

DATE:  18 December 2023

PLACE OF DECISION:  Sydney

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

Statement made on 18 December 2023 at 12:57pm

CATCHWORDS
REFUGEE – protection visa – China – past harm – fined at a highway toll station – threatened by the toll station director – beaten up – petitioning – no real chance of future harm – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 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 dependant.

STATEMENT OF DECISION AND REASONS APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 January 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant, a citizen of China, applied for the visa on 21 July 2017.

CLAIMS AND EVIDENCE

Evidence before the Department

1. The applicant provided a statement with his protection application, in which he claimed that:

·     He was a villager in [Village 1], [Town 1], Heibei province.

·     In May 2016 the government acquired their family land in order to urbanise the area.

·     The applicant purchased a [truck] with savings and borrowing from relatives.

·     In July 2016 the applicant passed through [a] toll station of [named] highway and was fined 2, 000 Yuan because, the officials claimed, his truck was overloaded. Despite believing he should not pay the fine, he did so in order to deliver the [goods] on time.

·     In August 2016 he again went through the toll way and was required to pay the fine. This time he got into a dispute with the station director [Mr A]. The applicant was beaten badly on his head by security. When the applicant called the police, the police only listened to [Mr A] and required the applicant apologise.

·     Because he had offended [Mr A], they made things difficult for the applicant when he went through the toll station, making him wait a long time, which made him late. The applicant’s business became worse.

·     In September the applicant was stopped again, made to wait and then fined 3, 000 Yuan. The applicant was so angry he reported the toll station to the [Road 1] Bureau. When he tried to go through the toll station after this he was not allowed to pass and [Mr A] told the applicant there was no point reporting him and threatened the applicant that he would be unable to afford food. The Bureau told the applicant they had found no illegal behaviour of the toll station.

·     The applicant then petitioned at the [District 1] Bureau for Letters and Calls. He did not get a response so he returned in a month. On his way home he was beaten up by some strong men with sticks and warned not to report again.

·     In November 2016 the applicant went to [City 1] Municipal Letters and Calls Bureau to report [Mr A]. After this [Mr A] called the applicant and threatened him. That night a dozen people attacked his home and the applicant and broke three of his ribs and threatened his family. He was hospitalised for nearly two months and did not get any response from his reports to the Bureau.

·     He saw from the television news that [Mr A] was named one of the outstanding employees of 2016 in [City 1].

·     The applicant was so fearful of retaliation that he sold his truck to others cheaply and for the personal safety of himself and his family, he travelled to Australia.

1. The applicant provided a copy of his People’s Republic of China passport.

1. The applicant attended an interview with the Department on 15 January 2018 with the assistance of a Mandarin interpreter. The applicant provided testimony consistent with his above claims. He said he had scars on his hand and body from the attack. He said he could not go back because he could not own a business, as he would need to be constantly providing protection money to people in order to operate his business.

1. The delegate refused to grant the visa on the basis that the delegate accepted the applicant had been required to pay bribes, but that the harm feared was not for a Refugee reason, and that the paying of bribes did not constitute significant harm and was a risk faced by the population generally.

Evidence before the Tribunal

1. The applicant appeared before the Tribunal on 15 December 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. At the hearing the applicant provided evidence consistent with the above claims.

1. At the hearing the applicant provided a copy of his most recent People’s Republic of China passport. He confirmed that he had acquired this at the Sydney Consulate of the People’s Republic of China and had had no difficulties acquiring it.

CRITERIA FOR A PROTECTION VISA

1. 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.

1. 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.

1. 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).

1. 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.

1. 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

1. 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

1. The issue in this case is whether the applicant has a well-founded fear of persecution on return to China or, if not, whether there is a real risk he will suffer significant harm if he is removed from Australia to China. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Past events

1. The applicant has provided consistent evidence about his claims in his application, at interview with the Department, and at the hearing. He provided this evidence in a spontaneous, unrehearsed manner, and was able to provide further detail where prompted. The evidence followed logically and was detailed where needed.

1. I accept that the applicant is a resident of [Village 1], [Town 1], Heibei province. I accept that his wife and one adult son live in the village. His wife is caring for the applicant’s elderly mother. His son works in a [factory]. His wife is not working and supports herself with money from their son as well as some money the applicant is occasionally able to send to her. The applicant’s younger child is studying [subject] at a school that teaches about [subject] in [City 1]. The applicant had worked in a [factory] similar to that his son works in, and also worked the family farm before driving the [truck]. He has worked in Australia as a labourer ever since he arrived [in] May 2017.

1. I accept that the applicant had his family land acquired by the government in 2016 and that he then purchased a [truck] with savings as well as borrowing from relatives in June 2016. I accept that the applicant would purchase [Product 1] from Shanxi and transport it to his home area to sell to local [Product 1] companies. He made this trip 5 or 6 times a month he said.

1. I accept that the applicant was fined at [the] toll station of [named] highway on four occasions from July to September 2016, that he protested about this and was then threatened by [Mr A] the toll station director. I accept he was beaten by security and that the police did not assist. The applicant told me that they would fine every [truck] which had dealings with a [Product 1] company associated with [Mr A].

1. I accept that the applicant petitioned the [Road 1] Bureau, the [District 1] Bureau for Letters and Calls, and the [City 1] Municipal Letters and Calls Bureau to report [Mr A], and that none of these complaints went anywhere. I accept that [Mr A] was aware of these complaints and threatened the applicant and that the applicant was beaten up on one occasion and in November 2016 had his home attacked and had three of his ribs broken and his family threatened. Despite some concerns about the length of his claimed stay given the injuries he claims to have received; I am willing to accept that the applicant was hospitalised for nearly two months. I accept that the applicant saw that [Mr A] was named one of the outstanding employees of 2016 in [City 1] in around March 2017.

1. I accept that the applicant then sold his truck around March or April 2017 and travelled to Australia.

1. The applicant claims that [Mr A] or people connected with him have been to the applicant’s family home once after his arrival in Australia, in approximately July 2017. His wife told them that the applicant had sold the truck and would not do that business anymore. The applicant said that since that time they have not visited his family.

Future harm

1. When I asked the applicant what he thought would happen to him if he returned to China now, he said that he was afraid [Mr A] and people associated with him would come and harm the applicant because the applicant had previously made complaints against [Mr A] and [Mr A] thought that is not good for his reputation. When asked if there was anything else he feared might happen he said there was not, he just wanted to stay in Australia for several more years.

1. I asked the applicant what work he would do if he returned to China. He said he would work as a labourer or work in a [factory] as he had in the past. If he did not drive a truck again, I asked the applicant, why would [Mr A] or anyone else have a reason to harm him? He responded that because he had previously gone to the petition office, there was already an unfavourable record against [Mr A] because of the applicant. The applicant said that he had been the only one to take this action against [Mr A]. I asked the applicant how [Mr A] harming the applicant now would change that unfavourable record. He said that [Mr A] had told the applicant there was no point suing him as the applicant would never win, but that [Mr A] wanted to make sure the applicant could not survive.

1. When asked if there was any other basis on which he may be harmed on return to China the applicant said there was not.

1. When I put to the applicant that if I accepted he would return and not drive a truck, I might consider there was no chance of [Mr A] or anyone else harming him, the applicant said that the political situation was also not good. When asked to expand on this he said that the authorities were not making things better for people in China.

1. I accept that the applicant would return to his home area, where his wife, eldest child and mother live. I accept that he would choose to work as a labourer as he has done for five years in Australia or in a factory, as he did from leaving school until June 2016.

1. I accept he would not drive a truck again, but I do not accept that this is for reasons of avoiding offending his persecutors. I find that the applicant only operated the truck for less than a year. This is significant because he has spent a much more considerable period of time working in a [factory] and as a labourer in Australia. I find he would undertake these roles, which he is more familiar with, and because he sold the truck prior to his departure, does not own the truck. I find he would not drive a truck as he would not choose

to or be able to buy a truck and drive it again, and because he has other employment options which he would choose.

1. The applicant has claimed that he would be harmed by [Mr A] or others associated with [Mr A] because of the complaints he has made against [Mr A], which are not good for [Mr A]’s reputation. The applicant did not claim, and I do not accept, that the applicant would make further complaints against [Mr A].

1. Having considered this I do not accept that [Mr A] or anyone associated with [Mr A] would seek to harm the applicant due to the complaints and petitions the applicant made, given the significant period of time that has elapsed since these events, and because on the evidence of the applicant, [Mr A]’s reputation does not appear to have been damaged by the actions of the applicant, with [Mr A] being awarded one of the outstanding employees of 2016 in [City 1] in around March 2017, after the applicant had made complaints against him. Even if I accept that the applicant was the only one who made such complaints, the evidence from the applicant does not demonstrate, or indicate, that [Mr A] would have a reason or any motivation for harming the applicant because of the applicant’s past actions or for any other reason if the applicant returned now or in the reasonably foreseeable future. The applicant could not explain why [Mr A] would harm him now or in the future and make sure the applicant could not survive given that [Mr A] appears to have been in a favoured position as an official having been awarded outstanding employee after the applicant had made his complaints. I consider that this demonstrates the complaints of the applicant had none or very little impact upon [Mr A]’s reputation. Given this fact and the significant period that has elapsed, I consider the information before me does not support that there is more than a remote chance of the applicant being harmed by [Mr A] or anyone else connected with [Mr A] if the applicant returns, now or in the reasonably foreseeable future.

1. I have also considered the applicant’s claim that the political situation is not good. I accept that the applicant may have some justifiable grievance against the political situation, but I do not accept that the applicant will be harmed for any reason connected to this generalised grievance he may hold. Nor do I accept that this would lead to a greater chance of the applicant being harmed by [Mr A] or anyone associated with [Mr A].

1. I find that there is no real chance of the applicant being seriously harmed by [Mr A], people connected with [Mr A] or anyone else for any reason if the applicant returns to China now or in the reasonably foreseeable future.

1. Adopting the same reason, I find that there is no real risk of the applicant suffering significant harm from [Mr A], people connected with [Mr A] or anyone else if he is removed from Australia to China now or in the reasonably foreseeable future.

Conclusions

1. 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 s 36(2)(a).

1. 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 is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

1. 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

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

Sean Baker 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.

…