1808200 (Refugee)

[2021] AATA 4970

1808200 (Refugee) [2021] AATA 4970 (1 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1808200

COUNTRY OF REFERENCE:                   China

MEMBER:Mr S Norman

DATE:1 November 2021

PLACE OF DECISION:  Sydney

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

Statement made on 1 November 2021 at 11:40am  

CATCHWORDS

REFUGEE – protection visa – China – particular social group – victims of crime gangs – imputed political opinion – opposition to government officials – land resumption – corruption – attack on business premises – state protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 36, 65, 424, 426A, 499
Migration Regulations 1994, Schedule 2

CASES

Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 144 ALR 567
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MIEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275

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 dependants.

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 13 March 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act). The applicant who claims to be a citizen of China, applied for the visa on 3 November 2017. The Department delegate’s decision was lodged with the Tribunal.

   CRITERIA FOR A PROTECTION VISA

2. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Mandatory considerations

3. 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

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

5. By s.424(2) letter of 30 August 2021 (dispatched by email), the Tribunal invited the applicant to provide any additional or updated information that was relevant to her case. The applicant was requested to respond in writing by 13 September 2021. No material response was lodged with the Tribunal.

6. By hearing invitation letter dated 3 September 2021 (again, dispatched by email), the Tribunal advised the applicant it had considered all the material before it relating to her application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 1 November 2021. The applicant was advised that if they did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on their case without further notice.

7. The Tribunal also sent two SMS ‘hearing reminder’ texts to the applicant shortly prior to the hearing.

8. On the day of the scheduled hearing (1 November 2021), a Tribunal officer contacted the applicant by telephone (with the assistance of an interpreter); she claimed not to be aware of the hearing; that she wished to speak with her lawyer (though the Tribunal notes that no ‘lawyer’ had been identified on the Tribunal CASEMATE database); and that (words to the effect) she may be able to proceed tomorrow. A Tribunal officer also recorded:

   ·     The applicant thought the Tribunal telephone contact was a scam and that she had ‘no idea who the AAT are or that there was a hearing scheduled for today’

   ·     The applicant also had claimed not have received any communications from the AAT

   ·     The applicant then disconnected the telephone call with the Tribunal officer

   ·     The Tribunal officer unsuccessfully attempted to contact the applicant on two further occasions

9. The Tribunal notes the applicant changed her address for service, as advised in her email to the Tribunal dated 26 June 2020. Also, that the abovementioned Tribunal letters issued to her (by email) were sent to the correct email address; and that the two SMS ‘hearing reminder’ texts were issued to the correct mobile phone number.

10. The Tribunal also notes the applicant had failed to attend the Department interview scheduled for 12 March 2018.

11. In the circumstances, and pursuant to s.426A of the Act, the Tribunal will makes its decision on the review without taking any further action to enable the applicant to appear before it.

    The applicant’s claims:

12. In her Protection visa application, the applicant claimed:[1]

    [1] PDF – from p.19 (‘PDF’ refers to the merged file on the Tribunal CASEMATE database).  

    ·     she had worked as an ‘Instructor’ in China, and that her family suffered from government corruption in China

    ·     she said that a local developer had colluded with the police and government officials to forcibly occupy her family shop

    ·     she said the relative of a city government worker wanted the applicant’s family’s shop, but the family were only offered around 30,000 RMB. As this was less than the value of the shop, her family refused

    ·     subsequently, a group of gangsters came to smash the shop. Her husband had then called the police, but the police did not stop the gangsters

    ·     the husband then petitioned the government - he wrote a letter and had posted it to the city government. However, the government did not reply

    ·     the husband was later illegally arrested and the police had seized their home. The applicant was not arrested at the time as she was outside the home

    ·     the police then said the applicant’s family had slandered the leader’s effective economic development, and therefore they had to be severely punished

    ·     the applicant’s husband was afraid this would have a bad impact on the applicant, and it was decided the applicant should be sent outside China

    ·     the applicant did not attempt to relocate within China because the government was riddled with corruption and they would protect each other. She said she would be caught and harmed no matter where she went to in China. She also believed she would be arrested should she return, and she would suffer abuse. She said local government authorities would not protect her

    Assessing the applicant’s claims:

13. The applicant lodged a photocopy of the bio-data page of her Chinese passport,[2] and the Tribunal accepts that China is her receiving country. However, the mere fact that an applicant claims to fear harm for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason/s claimed. Further, the Tribunal is not required to accept uncritically any and all the allegations made by an applicant (Randhawa v MIEA (1994) 52 FCR 437, p.451). That said, the applicant did not provide sufficient detail to satisfy the Tribunal (for instance) that her family shop and/or house was seized; that her husband petitioned the government; that her family were implicated for having slandered the leader; or, if she was possibly wanted by the authorities, why she was then able to depart China lawfully on a passport in her own name.

    [2] PDF – p.23.

14. It remains for the applicant to satisfy the Tribunal that all of the statutory elements for the grant of protection are made out (MIEA v Guo & Anor (1997) 144 ALR 567 p.596); and although the concept of the onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 p.288), the relevant facts of the individual case will have to be supplied by the applicant themselves, in as much detail as is necessary to enable the decision maker to establish the facts. A decision maker is not required to make the applicant’s case for him or her (Prasad v MIEA (1985) 6 FCR 155 pp.169-70; Luu & Anor v Renevier (1989) 91 ALR 39 p.45). The Tribunal acknowledges this guidance had been developed for the purposes of considering refugee protection claims, however, I am satisfied it is materially applicable to the assessment of complementary protection claims.

15. That said, based on the claims provided, the Tribunal is not satisfied all the statutory elements for the grant of protection are made out. Accordingly, I do not accept the applicant has a well-founded fear of persecution for a reason prescribed in the Act; or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk she will suffer significant harm.

16. Neither is there any issue, squarely raised by the evidence though not articulated, that has satisfied the Tribunal the applicant has a real chance of suffering serious or significant harm in China.  

    Finding:

17. For the reasons given above, the Tribunal is not satisfied 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 considered the alternative criterion in s.36(2)(aa). However, and for the same reasons, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

18. 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

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

    Mr S Norman
    Member