1805543 (Refugee) - [2018] AATA 3602

1805543 (Refugee) [2018] AATA 3602 (23 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1805543
COUNTRY OF REFERENCE:                  China
MEMBER:Josephine Kelly
DATE:23 August 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 23 August 2018 at 1:52pm
CATCHWORDS
Refugee – Protection visa – Federal Court remittal – China – Social compensation fee – One child policy Land resumption – Household registration – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5(1), 36, 48A, 65, 91R, 91S, 424AA, 438, 499
Migration Regulations 1994, Schedule 2

CASES
AMA15 v MIBP [2015] FCA 1424
Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305
MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 243 FCR 1
SZGIZ v MIAC (2013) 212 FCR 235
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection 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 17 October 2013 and the delegate refused to grant the visa on 24 September 2014.
The Tribunal affirmed that decision on 21 October 2016 after a hearing had been held.
[In] February 2018, the Federal Circuit Court remitted the matter by consent because the Tribunal denied the applicant procedural fairness which constituted a jurisdictional error of the kind found in Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305, in circumstances where a delegate of the Minister for Immigration and Border Protection issued a certificate pursuant to s 43B(1)(a) of the Act on 25 September 2014 and the existence of the certificate was not disclosed to the applicant in the course of the review by the Tribunal.
The applicant appeared before the Tribunal on 10 August 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
Near the beginning of the hearing, the Tribunal explained the process of putting information to the applicant under s 424AA of the Act. It explained that it would put to the applicant information that it considers would be the reason, or part of the reason, for affirming the decision under review. It explained that it would tell him why the information is relevant to the review, and the consequences of the information relied on in affirming the decision under review, and invite him to comment on or respond to the information. It advised the applicant that he may seek additional time to comment on or respond to the information and if he did so, the Tribunal may adjourn the review if it considered the request to be reasonable.
RELEVANT LAW
The criteria for a protection…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1805543 (Refugee)

Details

AGLC: 1805543 (Refugee) [2018] AATA 3602
Case: [2018] AATA 3602
Decision Date: 23 August 2018

CaseChat Overview and Summary

The Tribunal considered the protection visa application of an applicant who arrived in Australia in 1998 and subsequently lodged an application for a protection visa. The applicant's initial application was refused in 1998, and a subsequent review by the Refugee Review Tribunal in 1999 also affirmed the refusal. The applicant remained in Australia unlawfully for 14 years before being located in 2013 and detained. The current decision concerns the applicant's claims for protection, specifically in relation to the complementary protection criterion under section 36(2)(aa) of the Migration Act 1958 (Cth), following a remittal from the Federal Court.

The primary legal issue before the Tribunal was whether the applicant satisfied the complementary protection criterion, given that his earlier application based on the refugee criterion had been refused. The Tribunal was required to determine if the applicant had established a claim for complementary protection, taking into account the limitations imposed by section 48A of the Migration Act 1958 (Cth), which bars further protection visa applications in certain circumstances where a previous application has been refused. The Tribunal also had to consider the relevance of country information and ministerial directions.

The Tribunal reasoned that, in light of Federal Court authorities such as *SZGIZ v MIAC* and *AMA15 v MIBP*, its consideration was confined to the complementary protection criterion. The applicant's claims revolved around fears of harm from villagers and authorities in China due to issues concerning farmland, social benefits, and a cancelled household registration. However, the Tribunal found that the applicant's evidence presented at the hearings differed from his initial application and that he lacked a clear understanding of the proceedings or the basis for his claims. Crucially, the Tribunal noted the applicant had provided no supporting documents beyond his passport. The Tribunal also considered the validity of a section 438 certificate, referencing case law that limited its use in judicial proceedings, and concluded it was not valid for the purposes of non-disclosure in this context.

Ultimately, the Tribunal affirmed the decision not to grant the applicant a protection visa. It found that the applicant did not satisfy the criterion in section 36(2) of the Migration Act 1958 (Cth), including any basis related to being a family member of someone who met the refugee or complementary protection criteria.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background The applicant was born in Fujian on [date]. He holds a Chinese passport issued in [Australia] in 2013. He is a citizen and national of China. He was a farmer in China until 1991 in a village near Changle City, Fujian Province. The applicant’s [specified family members] live at their home in that village. His wife works [in an occupation] and his son works. His [daughter] is married and lives in China. Another [family member] arrived in Australia on a [temporary] visa and obtained a protection visa. She lives in Australia. The applicant speaks Mandarin. He does not read or write in his own language. He does not speak, read or write English The applicant arrived in Australia on a [Country 1] passport holding a [temporary] visa on 12 April 1998. On 23 September 1998, the applicant lodged a protection visa application. On 19 October 1998, the applicant’s protection visa application was refused. The applicant did not attend the scheduled interview. On 23 November 1998, the applicant lodged an application for review in the former Refugee Review Tribunal (RRT). He did not attend an interview at the RRT. On 30 March 1999, the RRT affirmed the decision not to grant the applicant a protection visa. [In] May 1998, his bridging visa ceased but he did not depart Australia. He lived and worked here unlawfully for 14 years before he was located [in] October 2013. Consequently the applicant was detained in immigration detention until he was released [days later].The applicant’s claims for protection The applicant made the following claims for protection in his 2013 application:·He left China to escape harm and mistreatment from the authorities and the villagers.·He has been intimidated and threatened by the villagers with power who have denied him access to his farmland.·He claims villagers have supported the authorities.·He fears being unable to access social benefits since his household registration has been cancelled.·The applicant claims to fear the villagers and the authorities and stakeholders. ·The farmland under his title has been divided by the villagers with power. The authorities have told his family that he has no right to live in the village anymore.·He claims that he will seek access to the farmland and social benefits if he returns to China and therefore he will be harmed and persecuted by the villages and the authorities.Departmental interview The applicant attended a departmental interview with the assistance of a Mandarin interpreter via telephone on 17 September 2014. He provided to the Tribunal a copy of the decision record dated 24 September 2014 which includes a useful summary of that interview. A recording of that interview is before the Tribunal.Documents The applicant provided a copy of the identification page of his Chinese passport which was issued [in 2013] in [Australia] at both hearings before the Tribunal. It expires [in] 2023. He has provided no other documents to support his claims.Consideration and findings

Evidence

Evidence Before The Court

In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment 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 EVIDENCEThe issue in the case The issue in this case is whether the applicant satisfies the complementary protection criterion. Section 48A imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused. The Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 has held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa. The Federal Court in AMA15 v MIBP [2015] FCA 1424 upheld the Tribunal’s approach of considering only claims in relation to the complementary protection criterion in s.36(2)(aa), where the applicant had previously been refused a visa on the basis of the refugee criterion in s.36(2)(a). In light of these authorities, the Tribunal has considered the applicant’s claims only in relation to s.36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background The applicant was born in Fujian on [date]. He holds a Chinese passport issued in [Australia] in 2013. He is a citizen and national of China. He was a farmer in China until 1991 in a village near Changle City, Fujian Province. The applicant’s [specified family members] live at their home in that village. His wife works [in an occupation] and his son works. His [daughter] is married and lives in China. Another [family member] arrived in Australia on a [temporary] visa and obtained a protection visa. She lives in Australia. The applicant speaks Mandarin. He does not read or write in his own language. He does not speak, read or write English The applicant arrived in Australia on a [Country 1] passport holding a [temporary] visa on 12 April 1998. On 23 September 1998, the applicant lodged a protection visa application. On 19 October 1998, the applicant’s protection visa application was refused. The applicant did not attend the scheduled interview. On 23 November 1998, the applicant lodged an application for review in the former Refugee Review Tribunal (RRT). He did not attend an interview at the RRT. On 30 March 1999, the RRT affirmed the decision not to grant the applicant a protection visa.

Decision

Reasons for decision

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.Josephine KellySenior Member

Ratio Decidendi

Legal Principle Established

The applicant provided a copy of the identification page of his Chinese passport which was issued [in 2013] in [Australia] at both hearings before the Tribunal. It expires [in] 2023. He has provided no other documents to support his claims.Consideration and findings The applicant’s evidence at the first Tribunal hearing was different from the claims in his application. He told the Tribunal he cannot return to China because he has no land, he cannot do [Occupation 1] work there, and there are no social benefits in China. He denied that his hukou had been cancelled. At the second hearing, the Tribunal explained to the applicant that a higher court had found that the Tribunal had made an error in its decision and required the Tribunal to reconsider his case and decide whether to affirm the decision to refuse his protection visa application. It said that the Tribunal was continuing the process of considering his claim for protection. The Tribunal told the applicant that it had sent his legal representative a copy of a certificate that had been issued by the Department and asking for that person’s opinion as to whether it was valid. It told him that the legal representative replied that it was valid but that the Tribunal’s view was that it was invalid and so it sent to the legal representative the pages of the file that the certificate had stated should not be disclosed. He was not aware of that material. The Tribunal did not consider the s 438 certificate to be valid because the ground specified could not form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document or the information should not be disclosed: MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 243 FCR 1; Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR305. The ground specified was that the documents contained “information relating to an internal working document and business affairs”. Although the applicant said that he was aware that his case had been heard by the Federal Circuit Court which had found the Tribunal had made an error, it became apparent during the hearing that he had no idea why he had come to the Tribunal. He said that he was just told to come. He said that he was not aware what the Tribunal said in its 2016 decision. He said that it had not been translated to him or otherwise explained. The Tribunal read to the applicant paragraph 18 of its decision which set out the claims he had made in his 2013 application, and paragraphs 23 to 28, 30 and 31, and summarised paragraph 29. The following findings are made on the information the applicant has provided, including at the Tribunal hearings. The applicant’s son was born in [year]. He was the youngest of [number] children. At that time, the applicant was a farmer. [Number] children were girls. The applicant had to pay a fine of about 1,000 RMB when his second [child] was born because of the one child policy. The applicant said they were just ordinary people who needed to have a boy. In the countryside you need someone to support you in old age. The [daughter] got married and went far away.