1808999 (Refugee) - [2024] AATA 2499

1808999 (Refugee) [2024] AATA 2499 (14 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1808999
COUNTRY OF REFERENCE:                   China
MEMBER:Paul Noonan
DATE:14 June 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 14 June 2024 at 4:23pm

CATCHWORDS
REFUGEE – Protection Visa – China – land disputes – made a petition to reveal the local authority’s corruption – other migration visa options had apparently been exhausted – applicant has presented significantly contradictory evidence – delay in applying for protection in Australia – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 March 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 26 June 2017. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on 17 April 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
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…

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 1808999 (Refugee)

Details

AGLC: 1808999 (Refugee) [2024] AATA 2499
Case: [2024] AATA 2499
Decision Date: 14 June 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking a protection visa, who claimed to fear persecution in China due to his involvement in a petition against local authorities regarding a land dispute. The applicant alleged that his family's farm land was seized without compensation and that he had been subjected to violence and arrest by authorities and their agents when he resisted. He also raised a claim that he needed to remain in Australia to support his son's medical treatment.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, specifically whether he had a well-founded fear of persecution or faced significant harm if returned to China, either on refugee grounds or under complementary protection provisions. This required the Tribunal to assess the credibility of the applicant's claims and the evidence presented.

The Tribunal found significant contradictions in the applicant's evidence regarding his father's situation and his own history of arrests and harm. It also noted the considerable delay in lodging the protection visa application and the applicant's migration history as factors undermining his credibility. Consequently, the Tribunal did not accept the applicant's account of land appropriation, arrest, or violence. Furthermore, the Tribunal found the claim regarding his son's medical condition to be a last-minute attempt to bolster his case, unsupported by evidence. Based on these credibility findings, the Tribunal concluded that there was no real chance the applicant would suffer serious harm upon return to China, and therefore, he did not have a well-founded fear of persecution.

The Tribunal affirmed the decision under review, meaning the applicant's protection visa application was refused.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The most recent DFAT China report was issued on 22 December 2021.CLAIMS AND EVIDENCEBackground The applicant is a [age]-year-old man, born in Shijiazhuang, Hebei Province, China. He speaks, reads and writes Mandarin and stated that he does not identify with an ethnic group or religion. He finished middle school and has not undertaken any further education. In Australia he has been working in [industry]. The applicant told the Tribunal that his parents live in his home area in China and his two sons live with them. His former partner lives there as well and he was divorced from her six years ago. In China he used to work on a farm and he never had a stable job. His family has a long history of farming the same land. His younger brother still farms the same land. He remains in contact with his family in China and talks to his parents regularly and his brother on occasion. The applicant informed the Tribunal that his family farm is about 10 kilometres from a town of about 10,000 residents. The farms in the area are run by individual families. In Australia the applicant stated that he has been working in [industry]. He has no religion and has never had any involvement in politics. The Tribunal accepts all of the above to be true.CONSIDERATION The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Country of nationality The delegate was satisfied that the applicant’s country of nationality is China, and the Tribunal is also satisfied that this is the case, on the basis of the biodata with respect to his Chinese passport, a copy of which is retained on the Department’s systems and file, and accordingly it has assessed his claims with respect to China as the country of reference or receiving country for the purposes of this appeal. Migration history The applicant was first granted a Student (TU-573) visa on 3 March 2014 while he was still residing in China. He arrived in Australia on [date] March 2014 and has not departed Australia since then. This visa ceased on 20 July 2016. He applied for a Student (TU‑500) visa on 8 July 2016 which was deemed invalid on 11 July 2016. He lodged a further application for a Student (TU-500) visa on 11 July 2016 and was granted an associated Bridging (WA‑010) visa. This application was refused on 4 November 2016. The applicant then proceeded to lodge a Protection (XA-866) visa on 19 June 2017. Documents before the Tribunal

Decision

Reasons for decision

The Tribunal finds that the applicant has contradicted himself with respect to the situation of his father variously stating that he is unharmed because he has given up protesting but also that he continues to protest and has been threatened as a result. The Tribunal would expect consistent evidence with respect to the important evidence of the current situation of his fellow landholding family members. This causes the Tribunal to further doubt the overall credibility of the applicant’s claim to fear persecution for this reason. Conclusions The Tribunal finds that the applicant has presented significantly contradictory evidence with respect to his claim to fear persecution for reason of a corrupt land action by local Chinese authorities with respect to past harm, arrest history and the situation for his fellow family members who still reside on and farm the claimed family land in China. Further, his significant delay in applying for protection and his associated migration history further undermine the credibility of his claim. For all of the above reasons, the Tribunal does not accept the applicant to be a credible witness. It does not accept that his family land was appropriated by corrupt local Chinese authorities. The Tribunal does not accept that he was arrested and beaten by the Chinese authorities or agents of the Chinese authorities or the police for refusing to sign a compensation agreement, nor that he left China for fear of harm for any reason claimed. The Tribunal has also considered the applicant’s claim, introduced at hearing, that he needs to stay in Australia to support the medical treatment costs of his son. The Tribunal has found that the applicant is not a credible witness. The Tribunal notes that the applicant did not present any medical evidence with respect to this claim. Given the Tribunal’s findings with respect to the applicant’s lack of credibility as a witness, the Tribunal considers that he has introduced this claim at the last minute merely for the purpose of attempting to strengthen his claims for protection. The Tribunal does not accept that the applicant’s son in China is suffering from [medical condition]. It follows that the Tribunal does not accept that the applicant’s son requires financial support from the earnings of the applicant in Australia for medical treatment reasons. For these reasons, the Tribunal does not accept there to be a real chance the applicant would suffer serious harm from the local Chinese authorities or their associates or the general Chinese authorities, or that there is a real chance that he will suffer serious harm due to his son being unable to access medical treatment, as a result of the applicant returning to China. It follows that the Tribunal does not accept the applicant has a well-founded fear of persecution for any reason claimed if he returns to China, either now or in the reasonably foreseeable future.Complementary protection In considering whether the applicant meets the complementary protection criterion under s 36(2)(aa), the Tribunal has considered whether it 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 will suffer significant harm.

Ratio Decidendi

Legal Principle Established

The delegate was satisfied that the applicant’s country of nationality is China, and the Tribunal is also satisfied that this is the case, on the basis of the biodata with respect to his Chinese passport, a copy of which is retained on the Department’s systems and file, and accordingly it has assessed his claims with respect to China as the country of reference or receiving country for the purposes of this appeal. Migration history The applicant was first granted a Student (TU-573) visa on 3 March 2014 while he was still residing in China. He arrived in Australia on [date] March 2014 and has not departed Australia since then. This visa ceased on 20 July 2016. He applied for a Student (TU‑500) visa on 8 July 2016 which was deemed invalid on 11 July 2016. He lodged a further application for a Student (TU-500) visa on 11 July 2016 and was granted an associated Bridging (WA‑010) visa. This application was refused on 4 November 2016. The applicant then proceeded to lodge a Protection (XA-866) visa on 19 June 2017. Documents before the Tribunal The applicant supplied a copy of the delegate’s decision to the Tribunal. As noted at hearing, the Tribunal also had access to the Department file which contained his original written claim for protection. Claims for protection In his written claim for protection the applicant stated (in summary) that he feared persecution in China from the authorities because he made a petition to reveal the local authority’s corruption. This was because local authorities had seized a potato field on his farm on behalf of a developer and they had not offered him any compensation. When the authorities found out they sent police to arrest him, but he evaded capture. He then decided to flee to Australia. He was not personally harmed in China but now fears he will be arrested and that he will die in prison if required to return to China. When questioned by the Tribunal about his current fear of persecution in China the applicant stated that he fears retribution by local authorities because he had not cooperated with them when they seized a portion of the family farm to build a freeway. He had refused to sign an unsatisfactory compensation agreement that the local authorities asked him to sign. They had come to his workplace and made a scene when he did this. He submitted that as he refused to sign the compensation agreement the matter remains open and unresolved. His father has been trying to lodge a petition to a higher authority and as a result has received further threats of harm. The applicant also submitted that his son has [medical condition] and he needs to stay in Australia and work to help pay for his treatment. When questioned about past harm in China the applicant submitted that the local authorities had enlisted gangsters to clear his land of crops and he had been bashed when he resisted them. He had then complained to the police and they came and arrested him and bashed him in response. He stated that he was arrested around the beginning of 2013 after trying to arrange a petition and he was arrested between four to eight further times subsequently by the police.Credibility concerns