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

1. 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).

2. 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. 

3. The Tribunal affirmed that decision on 21 October 2016 after a hearing had been held. 

4. [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.

5. 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.

6. 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

7. 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, the applicant 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.

   Refugee criterion

8. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

9. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

10. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

11. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

12. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

13. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

14. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

15. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

16. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

17. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

18. 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 a protection 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 the applicant 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’).

19. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

20. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

21. 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 EVIDENCE

    The issue in the case

22. The issue in this case is whether the applicant satisfies the complementary protection criterion.  

23. 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).

24. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background

25. 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.

26. 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.

27. The applicant speaks Mandarin.  He does not read or write in his own language.  He does not speak, read or write English

28. 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.

29. 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.

30. [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

31. 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

32. 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

33. 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

34. 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.

35. 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.

36. 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.

37. 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”.

38. 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. 

39. 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.  

40. The following findings are made on the information the applicant has provided, including at the Tribunal hearings. 

41. 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. 

42. The applicant told the Tribunal at the first hearing that he moved away in 1991for two reasons.  The economic circumstances were very bad at that time and he said that he would have been arrested by the local government and forced to borrow from loan sharks to pay the bottomless local government fine. Later, he said that he was asked to pay a fine of more than 10,000 RMB. The Tribunal accepts that version of his evidence.  A farmer could not earn that much.  Nothing adverse happened to his wife because of their son’s birth. He agreed that Fujian was more tolerant in relation to the one child policy, especially in the country areas.

43. The applicant did not return to live at home.  He worked [in Occupation 1 jobs] where he could make more money until 1998 when he left China and came to Australia.  He paid for his expenses and sent the rest of his money back to his family.  Others had also left his home area to get work in 1991.

44. The poor economic circumstances in 1991 arose because the price of [one crop] plunged and the government increased water management fees.  The price of [another crop] was very low.  He could not make enough money from [that] crop in 1991 to support his family and had to go elsewhere to work.

45. During the period 1991 to 1998, the applicant would sometimes go home in the middle of the night to visit his wife and child if he was working close to his home.

46. The applicant left China in 1998 following the suggestion from a friend that the applicant was working really hard and it was not easy, so maybe he should go overseas.  He travelled to Sichuan and then to [Country 2] and [a named region], by boat on a river.   A person had lied to him. He was asked for $10,000 US.  He haggled and agreed on $1,000 US.  The person sent him to [Country 3] from [Country 2] under a load of [produce] in a transport vehicle.  He stayed in [Country 3] for three months.  He was asked for $10,000 US, more than 80,000 RMB.  Family members borrowed the money from loan sharks.  He was given a telephone number to call.  He got a passport and joined a [group] which went to [another country] and then to Australia where he left it.  His cousin, an Australian citizen was in Australia at that time and helped him to find accommodation to rent.  

47. The applicant repaid the loan sharks after almost five years in Australia. 

48. The Tribunal accepts that sometime after the applicant left China in 1998, a [factory] was constructed in his home area. The factory’s chimneys were very short and they used a lot coal.  The villagers could not plant food. Nothing was edible. The village people asked that the factory be demolished.  They also asked for compensation. The government took the land. He does not know what happened.  He does not know whether his wife received compensation.  She has had to deal with all of that.  He has had no involvement with the land resumption and compensation.

1. The Tribunal does not accept that he cannot return because of the loss of the land.  He left home in 1991 because he could not support his family from farming.  He did not return to farming. He has worked in [Occupation 1] in China and Australia and wants to stay here and work.  

2. When the Tribunal commented at the first hearing that there was not a real risk of him facing significant harm if the returned to China, the applicant said he does not know.

3. At the second hearing, the Tribunal put to the applicant pursuant to s 424AA of the Act the following information that he had provided during a compliance interview held [in] October 2013 after he had been found by the Department:

   ·He had no debts in Australia or overseas.

   ·There was no reason he cannot return to China.

   ·He was willing to depart Australia – I am willing to go home.

4. He did not wish to comment or respond to that information.

5. At the second hearing, when the Tribunal asked him if there was anything he wanted to say about why he should not be returned to China, he said that he had escaped from China and gave a similar account to that he had given at the first hearing, as set out above and which the Tribunal accepted.  The Tribunal then read out the complementary protection criteria to assist him to focus on what he needed to satisfy and asked him again.  He said that he has been here for 20 years is used to life here and does not know how he will be treated if he returns.

6. The Tribunal does not accept that the applicant has been threatened with significant harm or has suffered significant harm in China for any reason.  It accepts that he has had to work very hard.  The claims in his application are inconsistent with the evidence he gave at the Tribunal hearing in the following respects.  He did not leave China for the reasons he claimed. He had not lived in the village for seven years before he left.  He had not been mistreated by the authorities and the villagers, or been denied access to his land in 1998. It does not accept that he has no right to live in the village anymore.  He told the Tribunal at the first hearing he was not claiming that his hukou had been cancelled. He said that the Chinese government is not that bad.    

7. The applicant’s claim during the departmental interview to have asked for compensation and the Chinese authorities were looking for him everywhere is inconsistent with his not being in China when the land compensation arose and with his evidence at the hearing that his wife had dealt with that.  The Tribunal does not accept that claim. 

8. The applicant claimed towards the end of the first hearing that one of the reasons he left China in 1998 was the one child policy.  If he was able to repay loan sharks 80,000 RMB within five years of arriving in Australia, the Tribunal finds that he would have been able to repay any outstanding fine of 10,000 RMB for the breach of the one child policy over the 14 years he has worked in Australia, if indeed it had not been paid before he left China. He said that he does not know whether his son has a hukou, his wife dealt with that. He did not claim that the one child policy was a reason he cannot return to China now or in 2013.       

9. The applicant claimed during the first hearing that his age, [specified], will mean that he cannot work in [Occupation 1] in China because that work is different there.  He did not claim to suffer from any medical conditions that impacted on his ability to work.  He is clearly keen to work in Australia.  The Tribunal accepts that he would earn more if he worked in Australia than if he worked in China, but does not accept that he will be unable to work in China.

10. His answers during the 2013 compliance interview are inconsistent with his claims for protection.

11. In China he has a home to live in.  His wife and son work.  He said that they had a son to support them in their old age.  The Tribunal finds that if the applicant suffers any difficulty finding work, and if he has no entitlement to social benefits as he claimed, his wife and son will support him.   

    Conclusion

12. For the reasons given above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's being removed from Australia to China, there is a real risk that he will suffer significant harm.

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

14. 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

15. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Josephine Kelly
    Senior Member