1833105 (Refugee)

[2022] AATA 5214

1833105 (Refugee) [2022] AATA 5214 (17 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr David Ho (MARN: 9903257)

CASE NUMBER:  1833105

COUNTRY OF REFERENCE:                   China

MEMBER:Dr Colin Huntly

DATE AND TIME OF

ORAL DECISION AND REASONS:         17 February 2022 at 12:29 pm (WA time)

DATE OF WRITTEN RECORD:                28 April 2022

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decisions under review.

Statement made on 28 April 2022 at 3:42pm

CATCHWORDS

REFUGEE – Protection visa – China – land acquisition – dispute with the local authorities –no ongoing dispute between any of the relevant parties in China – unlawful in Australia for seven years – manufactured claim to support his application for protection – delay in applying for protection in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65

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.

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 26 October 2018 to refuse to grant the applicants Protection visas under the Migration Act 1958 (Cth) (the Act).

2. At the hearing on 17 February 2022 the Tribunal made an oral decision and gave an oral statement of decision and reasons.

   STATEMENT OF DECISION AND REASONS

3. Attached to this decision record is a corrected transcript of the oral reasons for decision delivered to the applicant at the time of their delivery in person.

   DECISION

4. The Tribunal affirms the decisions under review.

   Dr Colin Huntly
   Member

   
   

   Corrected Transcript

   ORAL DECISION OF MEMBER HUNTLY

   INTRODUCTION

   Application for review

5. This is an application for review of a decision made by a delegate for the Minister on 26 October 2018, refusing to grant the applicant’s Protection visa under s.65 of the Act.  The criteria for a Protection visa are set out in s.36 of the Act and Sch.2 to the Regulations. 

   Applicant migration history

6. The applicants claim to be citizens of China.  Movement records reveal that Applicant 1 first entered Australia on [date] June 2007.  Applicant 2 first entered Australia on [date] December 2007.  Between them Applicant 1 and Applicant 2 have two children.  Applicant 3 is the eldest of these two children and is a son born in Australia on [date].  Applicant 4 is also a son, born to the couple in Australia on [date].

7. Applicant 1 lodged a Protection visa application on behalf of the family unit outlining the claims for protection in an application dated 14 December 2017. 

8. The delegate refused to grant the applicants Protection visas because Applicant 1’s evidence relating to holding a well-founded fear of harm in China was variable and lacked credibility.  Given this, the delegate found that the applicants’ claims for protection did not enliven Australia’s protection obligations at s.36(2a) of the Act (the refugee criteria).  Based on the same findings, the delegate further found there was nothing in the claims advanced by the applicants to suggest that Australia’s protection obligations were enlivened under the complementary protection criteria at s.36(2)(aa) of the Act.  This is the decision that the applicants have requested the Tribunal as presently constituted to review.

   Background – Procedural

9. The applicants appeared before the Tribunal as constituted by Member [A] on 21 May 2021.  After Member [A] became unavailable, the applicants appeared before the Tribunal as presently constituted on 13 September 2021 and finally, on 17 February 2022 to give evidence and present arguments.  Tribunal hearings were conducted with the assistance of an interpreter in the Mandarin and English languages. 

   Identity

10. Applicants 1 and 2 provided copies of their PRC passports to the Department with their application for protection.  Applicants 1 and 2 have also provided birth certificates for their two Australian-born children to the Department.  There is no reason for the Tribunal to doubt the validity of these documents.  The Tribunal has had the benefit of interviewing Applicant 1 and Applicant 2 in person on three occasions.  I note that the nationality law of the Peoples Republic of China includes Chinese citizenship for people born to parents who are Chinese citizens. 

11. There is nothing in the evidence presented in support of this application that suggests any of the applicants have a right to enter and reside in a third country for the purposes of s.36(4) of the Act.

12. Based on the information before it, the Tribunal finds that all four applicants are currently citizens of China, which is also the receiving country for the purposes of the Refugee and Complementary Protection Assessments. 

    President’s Direction

13. I have had regard to the President’s Direction ‘COVID-19 Special Measures Practice Direction – Migration and Refugee Division’, 27 April 2020.  I have also had regard to the President’s Direction ‘Conducting Migration and Refugee Reviews’, 1 August 2018.  In particular:

    ·that ‘members are to take all reasonable steps to complete cases allocated to them as quickly as possible’;[1] and

    ·that ‘Generally, in reviewing a decision to refuse the grant of a protection visa, members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.’[2]

    [1]At [2.1] (consistent with AAT Act 1975 s.33(1)(b)).

    [2]At [8.1].

    Claims and evidence

14. Section 5AAA of the Act clarifies that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.  On this view the Tribunal does not have any responsibility or obligation to specify, or assist in specifying particulars of a claim, or assist in establishing a claim.  This is consistent with the well settled proposition that it is for an applicant to make their own case.  Further, applicants are expected to present their case in full before the primary decision‑maker and not to wait until after the primary decision has been made.

15. Two obligations here are particularly relevant; the ongoing requirement under s. 104 of the Act for an applicant to ensure that their relevant details are correct, and also to correct any incorrect information at the first reasonable opportunity.  Second, s.423A of the Act requires the Tribunal to draw an adverse inference about the credibility of an applicant’s claim or evidence where an applicant raises a claim or presents evidence that was not put forward before the primary decision was made in relevant circumstances.

16. In such cases if the Tribunal is satisfied that an applicant does not have a reasonable explanation as to why a claim was not raised, or evidence not presented before the primary decision‑maker, the Tribunal is required to draw an adverse inference unfavourable to the credibility of the claim or evidence.  It is clear then, that applicants are required to present claims and evidence to the primary decision‑maker unless they have a reasonable explanation for not doing so.

17. In making such an assessment, I have had regard to Migration and Refugee Division ‘Guidelines on the assessment of credibility’ (July 2015), which provides at [8]:

    It is in the nature of an application for protection that determinations are made at least in part on an assessment of the applicant’s credibility and on the credibility of the claims themselves.

18. I also note that the same source, at [13] provides that:

    In relation to protection visa applications made on or after 14 April 2015, if an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made and the Tribunal are satisfied that the applicant does not have a reasonable explanation why the claim was not raised or the evidence was not presented before the primary decision was made, the Tribunal must draw an inference unfavourable to the credibility of the claim or evidence.  This refers to the requirements of section 423A of the Act.

19. Further, at [17]–[19] of the Guidelines it cautions that:

    Procedural fairness requires an applicant to be made aware of the case against him or her to be provided with an opportunity to respond to the issues arising to his or her case.  The Tribunal is under a duty to ensure that an applicant has an opportunity to be heard on the issues to be decided by the Tribunal.  A Member should maintain and be seen to have an open mind when conducting a hearing.  There is a duty to clearly and unambiguously raise with the applicant the critical issues on which his or her application may depend.  An applicant may be plainly confronted with matters, which bear adversely on his or her credit or which brings his or her account into question.

20. With respect to contradictions, inconsistencies and omissions, [27]–[28] states:

    Contradictions, inconsistencies and omissions, may arise in the evidence before the Tribunal.  The Tribunal will consider all the evidence before it, assesses whether contradictions or inconsistencies are material to an applicant’s claims and would lead to an adverse credibility finding.

    Mandatory considerations

21. In accordance with Ministerial Direction No.84 made under s.499 of the Act, I have taken account of the refugee law guidelines and complementary protection guidelines, prepared by the Department. 

22. I have also had regard to country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT), for China (22 December 2021), especially at [3.86]–[3.89] relating to land protests; [3.117]–[3.121] relating to family planning policies in China; and exit and entry procedure at [5.31]–[5.35]. 

    CLAIMS

23. At the second hearing with the Tribunal as presently constituted, I summarised the claims for protection that were advanced by Applicant 1.  Briefly, in summary I note the following:

    ·     Applicant 1 claims that in September 2006 his father received a letter from the County Government Office requesting him to surrender a block of land to allow private property development of the land and that, although aged [age] at the time, Applicant 1 decided to take up the responsibility of fighting against the land acquisition on behalf of his father. 

    ·     Towards the end of 2006 he remonstrated with County Chief [Mr B], demanding reasonable compensation.  Protests occurred outside [Mr B]’s office in January 2007 and because Applicant 1 had been a part of those demonstrations, he was held without charge in solitary confinement for 10 days by the local authorities. 

    ·     As a result of this, Applicant 1 claims that his father suggested Applicant 1 should move to stay with cousins in Guangzhou.  Applicant 1 further claims that he returned to live with his family in Fuqing when he was unable to get a job in Guangzhou.  This occurred in February 2007. 

    ·     Applicant 1 claims that he again saw [Mr B] in his office in March 2007.  Following a physical altercation, Applicant 1 was again arrested and detained for a month and beaten while he was held unlawfully. 

    Consideration

    Applicants 1 and 2

24. Applicant 1 arrived in Australia in late June 2007.  Applicant 1’s family sold a large portion of the land in question to the local authorities for an acceptable price in 2009. 

25. At the hearing in September 2021, I raised with Applicant 1 my concerns that there did not appear to be an ongoing dispute between any of the relevant parties in China, given that his father had sold a large portion of the land to the relevant people, and that his mother, father, and sister, and her family, all live peacefully in Fuqing.

26. I also raised with Applicant 1 that he had renewed his Chinese passport in 2015.  This suggested that there was no outstanding issue between Applicant 1 and the Chinese government at that time.  Applicant 1 suggested that his dispute was with the local authorities and, therefore, he had no dispute with the Chinese authorities nationally.  I also pointed to Applicant 1’s delay in seeking protection in Australia until 2017, when he claims that he had a well-founded fear of harm in China from 2007. 

27. I suggested to Applicant 1, that staying unlawfully in Australia for such a long period of time; (having children and getting married) before eventually seeking protection in Australia, was not consistent with what would be reasonable for someone to do who genuinely feared harm in another country.  I told the applicants that we would need to discuss these concerns further at the next hearing, and I also noted that the same sorts of concerns had been held by the delegate in the first instance. 

28. At the hearing on 17 February 2022, Applicant 1 and Applicant 2 gave consistent evidence about their having met and fallen in love in 2009.  They were concerned to pay back debts that had been taken out to pay for their education in Australia.  Their families in China were in reasonably good health and still living in the same place that they were when they had left China to come to Australia.  Both applicants gave the same evidence with respect to Applicant 1 not telling Applicant 2 about his fears of harm in China until just before the application for protection in 2017. 

29. I asked both applicants, separately, why they had taken so long in seeking protection in Australia.  Both applicants, separately, suggested that circumstances of life, with children, and living in a foreign country, had made it difficult for them to concentrate their minds to the fact that they were unlawful in Australia for seven years. 

30. I accept both applicants are sincere in saying that they were concerned to pay back debts owing back in China when they first arrived in Australia.  However, based on their evidence, I find that both Applicant 1 and Applicant 2 came to Australia looking for a different life; that they embarked on that different life together at an early stage, and worked collaboratively in Australia to send money back to China; and, that at all times in their relationship they have wanted to have a family and raise them in Australia. 

31. I also find that both Applicant 1 and Applicant 2 were content to live unlawfully in Australia for as long as possible.  Nothing in the evidence suggests that either Applicant 1 or Applicant 2 genuinely turned their mind to becoming lawful in Australia for the period of seven years that they were unlawful in this country.  Accordingly, I find that the delay in seeking protection for such a long period of time is not reasonable in all the circumstances and reflects poorly on their credibility. 

32. With respect to Applicant 1’s claims, I find that his particular delay in seeking protection at the first reasonable opportunity is compounded by the following factors:

    ·     The applicant’s own evidence is that after experiencing what he regarded to be unacceptable persecution and harassment in Fuqing in January 2007, he moved away for a period of a month, and then returned.  His reason for returning was that he was unable to obtain work in another city.  By his own evidence he was only away for a period of weeks.  This evidence is more consistent with a visit to regional cousins than it is with a flight from a well-founded fear of persecution.  Despite being given several opportunities in the course of the third hearing to fully explain the circumstances of his alleged persecution in China before coming to Australia, the applicant made no mention of his claim to have experienced a second period of incarceration by the local authorities in Fuqing on his return. 

    ·     The failure of Applicant 1 to tell his partner of nine years that he had experienced any persecution in China until late 2017 is significant. 

33. Taken together with the fact that Applicant 1’s father did in fact sell the land for an appropriate price or an acceptable price, to property developers in 2009, on the basis of the foregoing evidence I find that Applicant 1’s claims are entirely lacking in credibility and are not genuinely subjectively held by him. 

34. Late in the final hearing, Applicant 1 suggested that he had evidence of corruption in local government in China.  I asked Applicant 1 if there was any particular reason why he had left it so long to raise this particular integer of claims.  The applicant’s response about his late raising of this material was not satisfactory.  Accordingly, I find this integer of his claims to be of late invention and not genuinely held by Applicant 1.

35. I note that Applicant 2 makes no claim for protection arising out of her own personal circumstances and relies entirely on the claims of Applicant 1.

    Applicants 3 and 4

36. Turning to Applicants 3 and 4, who have lived their entire young lives in Australia.  I note that in the DFAT publication relating to China (22 December 2021) at [3.120], DFAT states as follows:

    The likelihood of enforcement of penalties for non-compliance, both before and after the new family planning rules varies from place to place.  DFAT understands that Fujian, for example, does not enforce its family planning policy strictly and penalties have not been imposed in some years.  People who give birth overseas would have their children counted as if they were born in China and the policies of the place they returned to in China would apply. 

37. I also note the evidence of Applicants 1 and 2 relating to applicant 4 as having an infant thyroid problem.  During evidence it was explained to me by Applicant 1, that Applicant 4’s thyroid problem had resolved and responded to the current treatment regime.  There is no reason to expect that the parents would not continue to pursue this treatment regime for their child if returned to China.  There is no suggestion that the child or children, as it were, would be the subject of particularised harm on return to China for any reason discussed at the hearings.  Having said that, I have considered the best interests of the children with respect to this decision. 

38. There is no suggestion by the parents that they wish to be separated from their children and I note that the children have an entitlement to Chinese citizenship.  I accept the evidence of both Applicant 1 and Applicant 2 that they speak Mandarin almost exclusively at home and that their children have functional levels of Mandarin language.  I note that relocation to China for the family unit would be dislocating for both the children and the parents.  However, I also note that both parents have continued to maintain their family connections in China, and there is nothing to suggest that the children would not be able to access social services, such as education on returning to China.  Accordingly, any considerations on the relocation of the children with the parents to China, lack the quality of particularisation of harm that would be required to engage Australia’s protection obligations with respect to those children. 

    SUMMARY

39. I have considered the claims made by Applicant 1 on behalf of the family unit and I find that there is nothing in the evidence to suggest that Applicant 1, Applicant 2, Applicant 3, or Applicant 4, hold a genuinely well-founded fear of harm for the purposes of the Act at s.36(2)(a) (the refugee criteria), given my finding that the claims advanced by Applicant 1 on behalf of the family unit are lacking in credibility as discussed above.

40. Accordingly, there is no real chance of serious harm to any of the applicants on return to China now or in the reasonably foreseeable future from any person for any reason. 

41. I have also considered the alternative criteria at s.36(2)(aa) of the Act.  On the basis of the same considerations, there are no grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to China, that there is a real risk that they would suffer significant harm now or in the reasonably foreseeable future for the purposes of s.36(2)(aa).  For the purposes of s.36(2B) of the Act, I also find that none of the applicants are members of the same family unit as a person who would qualify for a Protection visa under any of those provisions.

    DECISION

1. The Tribunal affirms the decisions under review. 

   END OF ORAL DECISION  [12.28 pm]