1810720 (Refugee)

1810720 (Refugee) [2024] AATA 1347 (9 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1810720
COUNTRY OF REFERENCE:                   China
MEMBER:Sue Zelinka
DATE:9 April 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 April 2024 at 9:14am
CATCHWORDS
REFUGEE – Protection Visa – China – feared the financial pressure in China supporting his family – applicant doesn’t fear any harm from the authorities or anyone else – not satisfied that the applicant has a well-founded fear of persecution – 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 28 March 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 20 November 2017. The delegate refused to grant the visa on the basis that he was not satisfied that the applicant is a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on 22 March 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 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 issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant is a married man aged [age] whose wife and child remain in China. His passport confirms that he is a Chinese national and left that country in September 2017. The village from which he came, where his parents still live, is near Fuqing in Fujian Province.
At the Department
The applicant’s claims were originally set out in his protection visa application (PVA). He said that he had a food factory and a developer tried to take it over at only half its proper price. The developer ‘smashed it up’. The applicant said he complained to the police but was ignored. He then made a ‘petition and public letter’ but officials knew of it and sent police to catch him. He therefore left China.
The applicant did not attend an interview with the Department and the delegate made his decision based on the written material before him.
At the Tribunal
At hearing, the applicant supplied some biographical data in answer to the Tribunal’s questions. He said he came from a rural area where his family engaged in subsistence farming on a plot in their village. The applicant ceased his formal education after primary school and was apprenticed to a [Occupation 1]. He worked as a [Occupation 1] and then moved the 20 kms or so from the village to Fuqing, perhaps about 2001. He built a [business] and some accommodation for himself and his wife, whom he had married after moving to Fuqing, on an empty site. There was no shopfront: the applicant delivered his goods to his list of customers and his wife sold some on the street.
It was difficult to establish the actual basis for this arrangement: both the leasing of the land and the building of structures on it. However, it seems that the applicant found an empty plot in an industrial area and squatted on it until the owner introduced himself and they agreed on a rent. The applicant said first that he had a lease of five or ten years but then said that he and the owner had no formal agreement: they did not know about the law. The applicant simply paid a yearly rental and the owner made no objection to the applicant building on it – both a structure containing the necessary [equipment], and another structure in which the applicant and his wife (and, later, two children) lived.
The Tribunal also had some difficulty in establishing the sequence of events which led to the applicant’s departure, but it is satisfied that the events unfolded in the following manner. At the end of 2015, the owner came to the applicant and said he had received an offer for the land, and that the applicant would have to vacate the premises. The applicant argued that he had built the structures and had equipment there; hence he should receive compensation. The owner ceased charging him rent but said he had to go. The Tribunal asked what steps he had taken to look for another site for his equipment and he said he couldn’t find any: he worked at night and his machinery was noisy, so he could not go to any areas zoned residential. Indeed, it appeared that the area where he was working would be re-zoned as the owner was selling to a developer who intended to build houses. The Tribunal asked if he could sell his equipment to other [businesses] but he said he could not: the dismantling of the large pieces of equipment in order to move them would make it very difficult to re-assemble them. Anyway, he had no offers for his equipment.
The applicant continued to live and work on the site for a year, paying no rent. At the end of 2016, the owner turned up with the developer. Workmen dismantled the [business] equipment and stacked it on site. The developer and the owner offered compensation to the applicant but he argued it was insufficient. He got into an argument on the site and the police were called. The applicant was taken away by the police and kept in custody for about ten days, after which he was released with no charges against him. The applicant and his wife rented elsewhere in Fuqing and the applicant found work in a [business] owned by someone else. He did this for six months or so and then came to Australia. He claims that he never received any compensation money from the owner.
The Tribunal put it to the applicant that these events occurred over six years ago and the matter is finished. There are no threats against him. There were no charges laid by the police. The Tribunal asked what he feared about returning to China. The applicant said that he feared the financial pressure he would face in China supporting his family. He remits money to his wife and two children and is their sole support. His parents till have their subsistence farm but the applicant said there is no profit in farming.
The Tribunal put it to him that he had made his living as a [Occupation 1] in China for a number of years, working for himself or for [businesses] owned by other people. It asked him if he had learned new work skills whilst in Australia and he replied that he had become a [occupation] in the construction industry. The applicant reiterated that he could not make a living in China.
Analysis, findings and reasons
The Tribunal notes that there are some discrepancies between the applicant’s claims a written in the PVA and his claims as put forward at hearing, mainly in relation to the police role. In the PVA, the applicant appears to claim that he wrote a letter and/or petition that caused the authorities to regard him adversely and send the police to him. This was not raised at all at hearing: no such claim was made. The Tribunal is satisfied that the testimony presented at hearing represents what actually happened, and the written claims do not. This is because the evidence at hearing was systematically gathered through questioning, and the Tribunal had the opportunity of clarifying each point.
The Tribunal accepts the applicant’s testimony as it is set out in paragraphs 14-17 above. This shows that the applicant squatted on someone else’s land and then came to an arrangement to pay rent for this land without any formal leasing agreement. He built structures on this land with the tacit consent of the owner but without any formal consents. When the landowner wished to sell this land to a developer, he informed the applicant who simply continued to stay there, although no rent was paid during the year between the initial approach and the time when the developer was ready to begin work. The developer did not destroy the applicant’s equipment but simply packed it up and left it on site. The authorities in the form of the police were only involved when a fight broke out; the applicant was removed from the site and held in custody but then released. There were no charges.
The applicant agrees that there are no threats against him nor does he fear any harm from the authorities or anyone else. There are no claims, nor does the evidence suggest, that there is a real chance that serious harm will befall him in the reasonably foreseeable future if he returns to China. The applicant’s concern about his future in China relates only to poor economic circumstances. However, the Tribunal notes that he has consistently been able to find work in China in his trade as a [Occupation 1], in different locations, for over 20 years and has been able to support his family through this activity. It notes that he has acquired another trade during his years in Australia in a different industry. The Tribunal is satisfied that there is no real risk that he will find himself in circumstances in China where he and his family cannot subsist or that he would otherwise suffer significant harm.
Findings
The Tribunal is not satisfied that there is a real chance that serious harm will befall him in the reasonably foreseeable future if he returns to China for any of the reasons set out in s 5J(1)(a).
The Tribunal is not satisfied that the applicant has a well-founded fear of persecution within the meaning of s 5J(1) of the Act and for the reasons given, 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). As the ‘real risk’ test under the complementary protection criteria imposes the same standard as the ‘real chance’ test under the refugee criterion, for the same reasons as those set out above in paragraph 22, the Tribunal finds that the applicant does not face a real risk of significant harm. The Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to China there is a real risk that the applicant 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).
There is no suggestion that the applicant satisfies 2 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (a) 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.
Sue Zelinka
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.
…

[2024] AATA 1347

9 April 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction