1804204 (Refugee)
[2023] AATA 4833
•7 December 2023
1804204 (Refugee) [2023] AATA 4833 (7 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Stanley Chan (MARN: 0430097)
CASE NUMBER: 1804204
COUNTRY OF REFERENCE: China
MEMBER:Rodger Shanahan
DATE:7 December 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 07 December 2023 at 4:57pm
CATCHWORDS
REFUGEE – protection visa – China – decision on the papers – insufficient information provided – inconsistencies – delay in seeking protection – failure to attend Departmental interview – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 426A
Migration Regulations 1994 (Cth), Schedule 2CASES
MIEA v Guo (1997) 191 CLR 559Any 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 7 February 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of China, applied for the visa on 23 October 2017.
The applicant was represented in relation to the review.
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 (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.
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.
CLAIMS AND EVIDENCE
Protection Visa Application
The applicant provided the following responses in his protection visa application:
a.Why did you leave China: I have a [specified] farm in [City 1]. The local government was helping us to establish business at the beginning. All good until late 2016, because of the environmental issues, without warning, we were told to shutdown. No compensation, no grace period. They brought it big machines to level the whole place. I left with nothing except debt;
b.Did the applicant experience harm in China: No;
c.What will happen to you if you return to China: We ask compensation, we were threatened to shut up or we will be put in jail.
Pre-Hearing Submission
On 7 December the applicant’s adviser asked for the case to be decided on the papers and that the following statutory declaration made by the applicant be taken into consideration:
In October 2017, shortly after my arrival in Australia, I had the opportunity to make new acquaintances who introduced me to a lawyer named [Mr A], a gentleman in his forties. My friends provided me with [Mr A]'s contact information, and I promptly reached out to him. [Mr A] returned my call and visited my residence in [Suburb 1]. During our meeting, he offered to assist me in the application process for a subclass 866 visa. In exchange for his services, I paid him an amount of $1800. [Mr A] provided assurances that he would successfully secure the visa on my behalf and navigate any appeals that might arise. Regrettably, my communication with [Mr A] abruptly ceased after that initial meeting. As time passed, and with no information regarding the progress of my visa application or appeals process, I grew increasingly anxious about my residency status.
In 2021, I decided to take proactive steps to address my immigration situation. I sought the assistance of a registered migration agent named Stanley Chan to investigate and follow up on my case. The purpose of this submission is to present an accurate account of my circumstances, and I sincerely hope that the tribunal will thoroughly consider the details provided herein.
Prior to my arrival in Australia, I was engaged in operating a [specified] farm in [City 1], and the local government initially supported our business endeavors. Everything appeared to be progressing well until late 2016, my second daughter suffered an accidental injury. Due to the government's failure to remit the collected medical insurance premiums to the insurance company, we were unable to receive the rightful compensation. I had to lodge complaints and appeals with various government departments, and even resorted to taking the matter to court, but the court refused to hear the case. Shortly thereafter, despite my business operating normally, the bank defaulted on my business loan, falsely claiming that I owed repayments and withholding further loans. This led to the closure of my business, leaving the loan unpaid, and I subsequently faced detention for debt collection. Unable to change this situation, I came to Australia.
This unfortunate turn of events left me with nothing but a substantial amount of debt and an uncertain future. My attempts to seek compensation and justice for the losses incurred were met with severe repercussions. I, along with others who were similarly affected, were threatened with imprisonment if we persisted in pursuing our claims against the government. It became evident that the government's primary concern was to adhere to directives from higher authorities, leaving ordinary citizens like myself with no recourse and stripped of our basic rights.
I now find myself in a dire predicament with limited options and nowhere to turn. My well-founded fear of persecution in my home country has driven me to seek refuge and protection in Australia, a nation known for upholding the principles of justice, human rights, and fairness. I implore the AAT to consider my case with the utmost compassion and empathy, recognizing the dire circumstances I face if I were to return to my home country. I seek your understanding and assistance in securing my right to protection and refuge in Australia.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is a [age] year old Chinese man. I have seen a copy of his passport and accept that he is a Chinese national. He arrived in Australia on a tourist visa [in] July 2017 and applied for protection on 23 October 2017.
The applicant was scheduled to appear at a hearing before the Tribunal on 20 December 2023 however on 7 December 2023 he advised the Tribunal via his representative that he was happy for the Tribunal to make a decision based on the papers, including a statutory declaration that he provided to the Tribunal.
Pursuant to s 426A of the Act I have decided to make my decision on the review without taking any further steps to have the applicant appear before me in person.
The mere claim to fear persecution for a particular reason is not sufficient to establish that such a fear is reasonable or ‘well-founded’. The applicant is expected to satisfy the Tribunal that all of the statutory elements necessary to establish that such a fear exists, are met. As Kirby J stated (MIEA v Guo (1997) 191 CLR 559 at 596:
‘the mere fact that a person claims fear of persecution for reasons of political opinion dioes not establish either the genuineness of the asserted fear or that it is well-founded, or that it is for reasons of political opinion. It remains in the first place for the Minister to be satisfied and, where that decision is adverse, and a review is sought, for that applicant to persuade the reviewing decision-maker that all the statutory elements are made out.’
Regarding the applicant’s protection claim, his written claims are brief and lack detail. There is also an inconsistency between his brief claim in his application and what is in his statutory declaration. For example, he said in his protection visa application that his [specified] farm was levelled by the government without warning or compensation ‘because of the environmental issues’.
In his statutory declaration he claimed that a daughter suffered an accidental injury, the government failed to remit the premiums to the insurance company and he took the matter to court. The bank then defaulted him on his business loan falsely claiming he owed them money, forcing the business to close and leaving him with debts that he would be jailed for because he couldn’t repay them. He came to Australia because of this.
This account is entirely inconsistent with the brief claim he gave as part of his application and so different as to be irreconcilable. I therefore believe the claim to have been fabricated. I also note that the applicant waited for nearly three months before he applied for protection despite claiming that he came to Australia to escape detention for false debts. The applicant also failed to attend his Departmental interview despite being appropriately informed. I do not accept his claim that he was duped by a lawyer named [Mr A] once he was in Australia who never informed him about what was expected of him after applying for protection. This relies on his credibility which I have found is lacking as a result of the inconsistency in his claim.
In view of the insufficient information provided, inconsistency and the inability of the applicant to attend the hearing, the Tribunal is not satisfied that the applicant ever faced serious harm in China involving a dispute involving his [specified] farm.
As the applicant hasn’t raised any other claims to fear persecution, and having regard to all the evidence and her claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any s 5(J) reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the applicant ever had his [specified] farm destroyed by the government without compensation, or that it was closed because a bank claimed that he had defaulted on his payments, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China that there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s 36(2)(aa).
CONCLUDING PARAGRAPHS
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).
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).
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.
Rodger Shanahan
MemberATTACHMENT - 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.
…
Key Legal Topics
Areas of Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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Appeal
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