1809596 (Refugee)

1809596 (Refugee) [2022] AATA 1507 (9 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1809596
COUNTRY OF REFERENCE:                   China
MEMBER:Joseph Lindsay
DATE:9 May 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 9 May 2022 at 11:04am
CATCHWORDS
REFUGEE – protection visa – China – applicant came to Australia to work – does not fear returning to China – unaware of written claims – inconsistent evidence – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 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 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 26 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 is a citizen of China, applied for the visa on 4 August 2017. The applicant attended an audio hearing with the Tribunal on 9 May 2022 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 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).
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.
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
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
The applicant made the following claims in his written protection visa application:
My name is [name]. I was born in [Shandong] province on [date]. I have one daughter and one son. I got along well with my wife and we used to have a very happy life. Unfortunately, our life changed a lot since the new director of our village took over the position. He was in this high position but never work on developing and enhancing people's life and care about people's concerns. Instead, he only cared about his own power and wealth. If villagers came to him for help, he would ask for high compensations. He gathered money from villagers privately and use the money to bribe higher authorities. He became very wealthy with his connections, but people's life was turning worse and worse. I did not want to let him have his full swing and let this bad culture grow anymore in our village, also I wished to bring a better life to my family. I decided to advocate my friends, relatives and neighbours to write letters to the township government and report the director together, but we did not know that he had already built his connections in the government by giving bribery. The government officers threw away our letters and informed the director. Therefore, my decision brought a series of retaliatory actions from the director, both financially and physically. Also, his revenge threatened the life safety of me and my family. My friends told me that the Australian government fully respect human rights and provide protections to people who are suffering or under oppression. That is why I applied for Australian visa and came to Sydney.
I finished my primary school and middle school in my home town, then started working. I met my current wife in the [factory] where I worked. We got married in 1988 and she gave birth to our son and daughter. Our life used to be very happy, but everything started to change since the new director of the village took over the position. Previously, the former director would always ask for villagers' opinions and discuss with everybody before implementing a plan. Villagers would also go to the old director for help if they were in trouble. Nonetheless, the new director named [Mr A], he totally ignored to connect with the villagers and began his dictatorship governance of the village. He never considered for the villagers but only his own benefits. Ever since he took over the director position, he set a lot of obstacles for people, so that people had no choice but to ask him for favours. He would ask for a high compensation for every favour and that was how [Mr A] made lot of illicit money to become more and wealthier and bought his new house and car, but on the contrary, villagers' life was getting worse. In addition, [Mr A] was also involved in many bribery issues with the higher authorities from the government. He bribed those officers for connections so that he could do illegal things at his wish. I had enough witnessing that our village's life quality was turning down day by day, so I tried to persuade all my relatives, friends as well as neighbours to write letters to report [Mr A]'s evil practices to the local government. Even though not all of them were willing to support me, because some were worried about the troubles that might come along with, I still had some support. We wrote down all the evil that [Mr A]'s had done and posted the letters to the local government together. However, our reports were coped stealthily by the government officers and they told [Mr A] that I was the leader of this action. Knowing about the fact, [Mr A] surely would resent me. For revenge, he sent his people to beat me up in a small alley where I passed by every day from work. My forehead and nose were all bleeding. After that, he created many difficulties to the people who helped me in order to estrange them from me and make them hate me. This caused so much mental torture and pressure to me and my family.
However, with my wife's firm support, I was still unbowed to [Mr A]. I collected more evidence and wrote down exactly how I suffered from him. I went to Wendeng city alone and submitted the documents to the city government, hoping someone could finally return us the justice. Things went contrary to my wish again. Even officers from the city government took [Mr A]'s bribe and they turned a blind eye to my report. Hearing that I reported him again, [Mr A] kept a closer eye on me. He sent his people to hit me again, which took me one month to recover. Moreover, he also warned my boss to deduct my monthly salary, otherwise he would set obstacles to our factory, and if I did something against him again, I would be dismissed. My family was not wealthy. My wife had no income and just stayed home to take care of the family. The whole family depended on me to live. I felt really pressured under his financial threat.
Once from a talk with my friends, I heard that Australian government respects human rights and provide protections for people who are under oppression and danger, so I applied for the Australian visa and came to Sydney. Having seen and experienced the life in Australia myself, I feel that I have never had such a free, safe and democratic life ever. I am truly happy about the life here, but as my visa is about to expire, I have to get back to the old life again. I am very scared of [Mr A]'s governance and that is why I am applying for the protection visa. I hope Australian government can provide me protections and enable me to have a better life. Thank you!
In the hearing, the applicant made clear that he did not know what visa he had applied for because his lawyer made the application for him. The applicant made clear that he had no idea of what the definitions of refugee were or of complementary protection. The applicant indicated that he was surprised that it was a hearing about a decision by the Department to refuse him a protection visa, and he indicated he did not know what a protection visa was. The applicant indicated that he just came to Australia to work and he wanted to stay in Australia to work. He said he was never harmed in China and he indicated that he did not fear returning to China. He said that he did not know what was written in his protection visa application because the lawyer wrote it all for him.
In discussion with the applicant about the information that was written in his protection visa application, the applicant kept repeating that he just wanted to stay in Australia to work. When the Tribunal asked the applicant if he had any protection claims to make, he said that he just wanted to stay in Australia to work and for the Australian government to protect him so he could work. He said he had no other claims to make. When the Tribunal put to the applicant that it may find that the claims made in his protection visa application were not credible, in response he said he had no comment to make.
Analysis and findings
The Tribunal has carefully considered the applicant’s claims and the evidence available to the Tribunal in respect to those claims. The Tribunal accepts that the applicant did not know what visa he had applied for because his lawyer made the application for him. The Tribunal accepts that the applicant had no idea of what the definitions of refugee were or of complementary protection. The Tribunal accepts that the applicant was surprised that it was a hearing about a decision by the Department to refuse him a protection visa, and he did not know what a protection visa was. The Tribunal accepts that the applicant just came to Australia to work and he wanted to stay in Australia to work. The Tribunal accepts that the applicant was never harmed in China and he did not fear returning to China. The Tribunal accepts that the applicant did not know what was written in his protection visa application because the lawyer wrote it all for him.
The Tribunal accepts that the applicant had no protection claims to make, and that the claims made in his protection visa application are not credible.
In particular, the Tribunal does not accept that the applicant ever had any adverse interaction with any “village director” or any person named “[Mr A]” or that the applicant ever had any “retaliatory action” of any kind taken against him as a result of such alleged interactions. The Tribunal does not accept that the applicant was ever beaten. The Tribunal does not accept that the applicant ever approached the Chinese authorities to complain about the actions of any “village director” or an official of any kind, and nor does the Tribunal accept that the applicant was ever beaten for any reason, let alone having made any complaint. The Tribunal finds that all the applicant’s written protections claims are not credible.
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). 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).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Joseph Lindsay
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.
…

[2022] AATA 1507

9 May 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction