1809523 (Refugee)

[2024] AATA 1245

1809523 (Refugee) [2024] AATA 1245 (8 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1809523

COUNTRY OF REFERENCE:                   China

MEMBER:Hee-Jung Kim

DATE:8 April 2024

PLACE OF DECISION:  Sydney

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

Statement made on 08 April 2024 at 3:51pm

CATCHWORDS

REFUGEE – protection visa – China – reporting toxic pollution – fear of employer – employment terminated – fear of killing – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 425, 499
Migration Regulations 1994, Schedule 2

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 16 March 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of China, applied for the visa on 7 November 2017. On 21 February 2018, the applicant was invited to attend an interview with a delegate scheduled for 14 March 2018, but he did not attend. He did not provide to the Department any reasons for his non-attendance at the interview, nor did he provide any further information in support of his visa application. The delegate refused to grant the visa on the basis that the written material did not provide a sufficient basis for the delegate to be satisfied of the applicant’s claims and therefore the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligation.

3. On 6 April 2018, the applicant applied for review of the delegate’s decision to the Tribunal and provided a copy of the decision record with his application for review. Since lodging his review application, the applicant has corresponded with the Tribunal only once to update his contact details by submitting a signed Change of Contact Details form with a copy of his passport biopage at the Tribunal’s Sydney Registry on 22 July 2019. In the form, the applicant provided an updated email address for correspondence with the Tribunal in connection with the review and confirmed that he agrees to the Tribunal sending all correspondence by email.

4. On 28 February 2024, the Tribunal invited the applicant to appear before it on 8 April 2024 to give evidence and present arguments in relation to the issues under review because it considered that it could not decide the review in the applicant’s favour on the basis of the material before it. The invitation was emailed to the applicant’s nominated email address provided in the Change of Contact Details form submitted 22 July 2019, but the email returned to sender as undeliverable. On the same date (i.e. 28 February 2024), the Tribunal also posted the hearing invitation to the applicant’s residential/postal address which he provided in his review application.

5. The applicant did not appear before the Tribunal on the day of the hearing at the scheduled time and place. There is no evidence that the applicant contacted the Tribunal to explain his non-appearance or to seek an adjournment. On the day of the hearing, the Tribunal Registry staff made several checks of the Tribunal premises prior to and after the time of the scheduled hearing but the applicant was not present.

6. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing and that notice of invitation to appear was given to the applicant in accordance with s 425A of the Act. The applicant failed to appear and has not provided any reasons for his non-appearance. He has not engaged with the Tribunal since lodging his review application, other than to update his email address for correspondence in July 2019. In these circumstances, the Tribunal has decided to make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

   CRITERIA FOR A PROTECTION VISA

7. 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.

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 because the person is a refugee.

9. 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).

10. 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-5LA, which are extracted in the attachment to this decision.

11. 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

12. 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

13. The issue in this case is whether the applicant meets the criteria for the grant of a protection visa under s 36(2) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Nationality

14. The applicant claims to be a citizen of China and provided a copy of the biopage of his Chinese passport issued [in] 2014 to the Department and the Tribunal. The delegate was satisfied of the applicant’s identity and that he is a citizen of China. In the absence of evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of China and that China is his receiving country for the purposes of assessing his claims for protection.

    Evidence before the Department

15. In his protection visa application, the applicant provided that he was born in [specified year] in Puyang, Henan province, is a Chinese citizen and does not have citizenship or a right to enter or reside in any other countries. He claimed that he is Han Chinese and did not list any religion. He claimed that he was divorced and has [number of children], born in [specified years], living in Puyang. He did not provide the details of any other family members. He claimed that he lived at the same address in Puyang from January 1997 until he departed China. He did not provide any other addresses in China. He completed high school in Puyang in [year]. He worked as an [occupation 1] at [Business 1] in Kunshan, Jiangsu province from March 2008 to December 2010, and at [Business 2] from January 2011 to March 2017. He claimed that he was unemployed from April to November 2017, travelling and financially supported by his savings. He departed China from [a named] airport [in] October 2017 and arrived in Sydney, Australia on [the following day].

16. In relation to his reasons for claiming protection in Australia, he provided the following information in his visa application:

    ·The [type] factory he worked for released toxic waste gas and polluted the environment. He reported it to the manager but the manager ignored him. He told the residents around the factory and the residents reported it to the government. The government came to inspect but didn’t do anything. However the manager and the boss found out the applicant told other people about the pollution and the residents protested. The boss sacked the applicant and told him that he will be in trouble.

    ·If the boss has any problems with the factory, the applicant is worried that he will have bigger problems. He thinks the boss will find him and give him a very big problem. They can kill him and pretend it’s a car accident.

    ·He did not move or try to move to another part of China to seek safety because he doesn’t feel safe in China. He does not think the authorities can and will protect him because nobody will help him and there is nowhere to go.

    Delegate’s decision

17. The delegate noted that because the applicant did not attend the interview, they were only able to consider the information in the written claims. They found that the written material did not provide a sufficient basis to satisfy that the applicant is, in fact, in danger of being harmed by his boss due to reporting his factory for polluting the environment or that he faces harm of any kind for such a reason on return to China. Therefore, the delegate was not satisfied there is a real chance that the applicant would suffer persecution for reasons relating to his boss wanting to harm him. As the delegate found there is no real chance the applicant would suffer serious harm for his claimed reasons, they also found that there is no real risk of the applicant facing significant harm as defined in s 36(2A) for the claimed reasons if he returned to China in the foreseeable future.

    Evidence before the Tribunal

18. The applicant has not provided any additional information or evidence to the Tribunal in support of his protection claims since lodging his application for review.

    Reasons and findings

19. It is the responsibility of an applicant for a protection visa to specify all particulars of his or her claim to be owed protection and to provide sufficient evidence to establish the claim: s 5AAA(2) of the Act. The Tribunal does not have any responsibility or obligation to specify or assist in specifying any particulars of the applicant’s claim, or to establish or assist in establishing the claim: s 5AAA(4).

20. The Tribunal has reviewed all of the material before it. The limited evidence which consisted of some information about his background and the general written claims in the protection visa application and a copy of his passport, lacks meaningful and specific detail to satisfy the Tribunal of the applicant’s claims. His protection claims in particular are lacking in important details such as the dates or timeline of the claimed events, the name of his employer who fired him and the location of the factory. Although the applicant provided the addresses and names of the 2 [companies] in Kunshan and Shuzhou in Jiangsu province he previously worked for, it is unclear from the written material which of these two specifically relates to the events in his protection claims. Further, he has not provided any details about when and for how long the toxic waste gas was released by the factory, what kind of gas it was and how it polluted the area, what impact it had on the nearby residents, when he reported the concern to the manager and then to the residents, who were these residents he spoke to, in what ways did the residents report to the government, to which government it was reported and who came to inspect, what other actions were taken by the residents to cause problems for the factory, when and how did the applicant’s manager and boss find out he spoke to the residents, and when was he fired from his job and what reasons were given for his termination. He did not attend the Departmental interview to provide oral evidence and he has not submitted any additional information to the Department or the Tribunal to support his vague written claims. For example, he did not provide a copy of any termination letter from his employer to corroborate his claim to have been sacked.

21. Whilst claiming that his boss will find him, give him a very big problem and that they can kill him and pretend it’s a car accident, he has not provided any explanation for these assertions. There is no information about the identity or the location of his boss and whether there has been any contact between the applicant and his boss, manager or anyone associated with his former employer since the applicant departed China in October 2017. He claimed that nobody will help him but the written evidence does not indicate he had sought help from the authorities or anyone in China and was refused such help. He also expressly stated in his visa application that he did not experience harm in China.

22. The applicant did not attend a hearing before the Tribunal to provide more detailed oral evidence about his claims, and there is insufficient evidence before the Tribunal to be satisfied that any of the claimed events occurred to the applicant.

23. The Tribunal is prepared to accept the applicant’s biographical background summarised at [15], including that he was born in [year] in Puyang, Henan province, went to school there, he is divorced and his [children] live there. Based on the background information he provided in his visa application, the Tribunal is also prepared to accept that the applicant’s home address is in Puyang, Henan province, but he has worked in Jiangsu province from March 2008 to March 2017.

24. However, having regard to the very general and vague claims devoid of specific personal details in the available material, the Tribunal does not accept the applicant’s claimed reasons for leaving China and fear of returning to China. Specifically, the Tribunal does not accept that the applicant reported to his manager and told the nearby residents about the toxic waste gas that was released by his employer factory which polluted the environment. It follows that the Tribunal does not accept any of the claimed subsequent events, including that the residents reported to the government, the government came to inspect and didn’t do anything, the residents protested, the applicant’s manager and the boss found out about the applicant informing the residents and fired the applicant, and that the boss told him that he will be in trouble.

25. As the Tribunal rejects the applicant’s claims about the events in China, it does not accept that he did not move, or try to move, to another part of China or that he left China because he doesn’t feel safe in China. It also does not accept that he will be harmed in anyway if he returns to China as a result of his claimed past events, specifically that his boss will find him and give him a very big problem or harm him in any way if he returns to China and that his boss or anyone associated with his former employer will kill him and pretend it’s a car accident.

26. The applicant has not raised any other claims for protection and the Tribunal finds that no other claims clearly arise on the material before it.

27. For the reasons set out above and having considered the available material and the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that the applicant faces a real chance of serious harm on return to China for his claimed reasons or for any other reason in s 5J(1)(a), now or in the reasonably foreseeable future. Therefore, the Tribunal is not satisfied the applicant has a well-founded fear of persecution in China, and the applicant does not meet the definition of refugee in s 5H(1). The Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligation under s 36(2)(a).

28. 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).

29. The Tribunal has found that the applicant will not be harmed for his claimed reasons or for any other reason upon return to China. For the same reasons set out above, the Tribunal is not satisfied that there is a real risk that the applicant will be harmed upon return to China. Therefore, 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 he will suffer significant harm. 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.

    Hee-Jung Kim
    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.

    …