1809411 (Refugee)

[2021] AATA 1491

1809411 (Refugee) [2021] AATA 1491 (30 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1809411

COUNTRY OF REFERENCE:                   China

MEMBER:Frances Simmons

DATE:30 April 2021

PLACE OF DECISION:  Sydney

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

Statement made on 30 April 2021 at 6:35pm

CATCHWORDS

REFUGEE – Protection visa – China – applicant failed to attend tribunal hearing – petitioning activities – efforts to expose official corruption – delay in applying for a protection visa– inability to question him about the veracity of claims –decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5,36, 65, 426, 441, 499

Migration Regulations 1994, Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 March 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a person to whom Australia owed protection obligations. 

2. On 8 April 2021 the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing at 2:30pm on 30 April 2021. The invitation stated that if he did not attend the hearing, the Tribunal may make a decision on the case without further notice.

3. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing and nor did he contact the Tribunal to explain his failure to appear or request a postponement of the hearing. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.441A(5). In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

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

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.

9. 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

10. 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

    Application to the Department

11. The applicant is [name deleted] born on [date of birth] in Henan province in the People’s Republic of China. The information before the Tribunal indicates he was a granted a TU 573 (Higher Education Sector visa) on 7 July 2016. The applicant provided a biodata page of his passport with his application for a protection visa.

12. In the protection visa application, the applicant made the following claims:

    I was persecuted by the Chinese Government because i made petition to reveal the government's officials' corruption behaviour.

    I have a [land] in my hometown and the field of land was good all the time. One day the local government noticed me that our land would be collected, but the compensation only have 1/5 price of the market price, so I and villagers disagree to sign the collection agreement. One day the local government sent people came to my home to collect land. They destroy [sic] all goods of land and threaten me. And then they forced me sign the collection agreement, I and my parents were beaten by them because refused to sign it. after that, I called the police, but the police only let us to wait. However, I did not receive any results. So we decided to made petition and we wrote public letter to distribute, to hope that get a reasonable explanation and compensation. however, after the officilas[sic] knew my behaviour, they sent police to catch me. I was so scared, escape china and fled to Australia. please protect me. [errors in the original]

13. The applicant states the situation throughout China is the same because the government is corrupt and colludes with the police. He claims that he returns to China he will be persecuted by the police. He claims once he goes to prison, he will suffer mental and physical harm and he also that he may die in prison.

14. The applicant was invited to, but did not attend, an interview with the delegate to discuss his claims for protection. The delegate found the written material did not provide a sufficient basis to be satisfied that the applicant is, in fact, of interest to authorities or that he face harm of any kind for such a reason on return to People’s Republic of China. The delegate found the applicant was not a refugee or owed complementary protection.

    FINDINGS AND REASONS

15. On the evidence before it, the Tribunal accepts the applicant is a citizen of China.

16. The mere fact that a person claims fear of persecution 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 claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[1]

    [1] MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70

17. The information before the Tribunal about the applicant’s claims for protection is scant and lacking in meaningful particulars. The written claims set out in his protection visa application are vague but assert that the applicant will face harm for reasons relating to his petitioning activities and efforts to expose official corruption. He claims he was threatened, beaten and that the police tried to catch him. However, these claims are untethered to any dates or any meaningful detail and not otherwise supported by documentary evidence (records of petitions or medical evidence). For instance, in his written claims he refers to the police being sent to catch him but he does not explain how he was able to depart China using his own passport issued [in] 2016 and legally exit the country in July 2016.

18. The applicant claimed he has experienced serious harm in China in the past but his claims that he was beaten and threatened are extremely vague and lack any meaningful particulars The applicant filed a copy of the delegate’s decision with his application for review and was on notice of the delegate’s concerns that he had not provided sufficient information to support his claims. No additional evidence or claims have been provided to the Tribunal. While the applicant’s written claims and submissions assert that he was involved in petitioning, these assertions are not accompanied by any meaningful detail about the dates on which these activities occurred and nor are his claims otherwise supported by corroborating documentation. 

19. The hearing invitation put to the applicant on notice that the Tribunal had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The applicant's claims are vague and lack meaningful detail about the situation that has led to his claimed fear of harm. As noted above, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. The evidence before the Tribunal lacks any detail about the applicant’s past activities as well as any meaningful detail about his claims that he will be imprisoned if he returns to China. Had the applicant attended the hearing, the Tribunal would have questioned him about when he was involved in petitioning, his concerns about official corruption, and how he was able to depart the country legally in circumstances where he claims he was of interest to the police. The Tribunal would have sought further detail about why he believes he would face harm in China because of his petitioning activities and the threats and mistreatment he claims he experienced in the past.

20. The information before the Tribunal indicates that the applicant arrived in Australia [in] July 2016 holding a student visa. The applicant travelled on a passport issued to him by the Chinese authorities [2016]. No explanation has been provided as to why he did not apply for a protection visa until November 2017, well over a year after he first arrived in Australia. In circumstances where the applicant did not attend an interview with the delegate to discuss his claims and provided scant detail about his claims, this delay causes the Tribunal to have doubts about the genuineness of his claims. Had the applicant attended the hearing, the Tribunal would have discussed his immigration history with him and sought information about why, if he feared being imprisoned upon his return to China, he did not apply for a protection visa at an earlier point in time or take the opportunity to discuss his protection visa claims with the delegate.

21. On the limited evidence before it, the Tribunal is not satisfied that the applicant was ever persecuted by the Chinese authorities for petitioning or that he has ever taken any action of any type to expose official corruption in China. The Tribunal is not satisfied that the local government sent people to his home to ‘collect land’ or ‘destroy goods’ or threaten him or force him to sign an agreement. The Tribunal is not satisfied that his land was taken or that he was threatened or that he was involved in petitioning against corruption in government or that the police sought to catch him. The Tribunal is not satisfied that the applicant or his family members were threatened or beaten as asserted in his written claims. The Tribunal finds the applicant departed China legally in July 2016 on a passport issued by the Chinese authorities in [2016].

22. The Tribunal is not satisfied that he has experienced harm in the past for any of the reasons claimed.  The limited information the applicant provided with his protection visa application is not sufficiently detailed to be capable of satisfying the Tribunal that there is a real chance that he will face serious harm or significant harm if he returns to China now or in the reasonably foreseeable future on the basis of his political opinion or for any other reason.  It follows that the Tribunal is not satisfied that there is a real chance he will face harm or mistreatment from the authorities or anyone else on return for reasons related to his political opinion or for any other reason.

23. The Tribunal is not satisfied that the applicant has a genuine subjective fear of being harmed for reasons relating to his political opinion or for any reason if he returns to China, now or in the reasonably foreseeable future. Because the Tribunal is not satisfied that the applicant has ever engaged in petitioning activity in the past, the Tribunal is not satisfied that he would seek to do if he returns to China. The Tribunal is not satisfied that there is a real chance that the applicant will be arrested, imprisoned, beaten, killed or otherwise harmed because of his political opinion or for any other reason.

24. Having considered the applicant’s claims, the Tribunal is not satisfied that he has a profile that will attract the adverse attention of the Chinese authorities or that there is a real chance that he will be persecuted or face harm of any type in China because of his actual or perceived political opinion or for any other reason. On the limited evidence before it, the Tribunal cannot be satisfied that the applicant faces a real chance of serious harm or significant harm in China for any of the reason, now, or in the reasonably foreseeable future.

25. The Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. His fear of persecution is not well-founded as required by s.5J of the Act. Therefore he is not a refugee within the meaning of s.5H.

26. The Tribunal has considered whether the applicant meets the complementary protection criterion under s.36(2)(aa). For the reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant faces serious harm from the authorities, those acting on the instruction of the authorities or anyone else for any reason if he returns to China, now or in the reasonably foreseeable future. In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the 'real risk' test imposes the same standard as the 'real chance' test applicable to the assessment of 'well-founded fear' in the definition.

27. Having found that there is no real chance that the applicant will face persecution for any reason, 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 the applicant will suffer significant harm.  On the limited evidence before it, the Tribunal is not satisfied 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 that the applicant will suffer significant harm for any of the reasons claimed or for any other reason.

    CONCLUSION

28. 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).

29. 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).

30. 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

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

    Frances Simmons
    Member

    
    

    ATTACHMENT  -  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.

    …