1912790 (Refugee)

1912790 (Refugee) [2022] AATA 1522 (27 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1912790
COUNTRY OF REFERENCE:                   China
MEMBER:Louise Nicholls
DATE:27 April 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 27 April 2022 at 1:08pm
CATCHWORDS
REFUGEE – Protection visa – Bangladesh – applicant failed to attend tribunal hearing – in breach of the “one child” policy – delay in lodging the visa application – inability to question him about the veracity of his claims – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 426, 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

The applicant claims to be a citizen of the People’s Republic of China (China) and is [age] years old. He was born and lived in [a] Town, Hebei Province. He came to Australia as the holder of a tourist visa [in] June 2012.
The applicant applied for a protection visa on 30 November 2016. He provided a copy of the biodata page of his Chinese passport and an English language statement made on 25 November 2016.
The applicant attended an interview at the Department of Home Affairs on 17 April 2019.
On 10 May 2019 a delegate of the Minister for Immigration refused to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act) because the delegate was not satisfied that the applicant met the requirements for that visa.
This is an application for review of that decision and it was made on 22 May 2019. The applicant provided the Tribunal with a copy of the delegate’s decision record.
On 11 March 2022, the Tribunal wrote to the applicant advising that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited him to give oral evidence and present arguments at a hearing to be held on 26 April 2022. The invitation advised that if he did not attend the scheduled hearing and a postponement was not granted, the Tribunal may make a decision on the review without further notice or taking further action to enable him to appear before the Tribunal. The letter was sent by email, to the address for correspondence indicated in the review application.
The Tribunal received no response to the invitation letter. As an added precaution, the Tribunal sent the applicant SMS hearing reminders on 14 April 2022 and 22 April 2022. The Tribunal also checked Department and Tribunal records for any indication as to whether the applicant has provided further contact details since the lodgment of his review application. These checks yielded no new information.
The applicant did not appear before the Tribunal on the day and at the time and place he was scheduled to appear. He has not contacted the Tribunal by the start of business 27 April 2022, to seek a postponement of the hearing, or to provide any reason why he could not attend at the scheduled time. The applicant has not communicated with the Tribunal since 2 June 2019.
In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make a decision on the review without taking any further action to enable the applicant to appear before the Tribunal.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION
The issue in this case is whether the applicant meets the refugee criterion and, if not, whether he is entitled to complementary protection.
The relevant law is set out in Attachment A.
Country of reference
The applicant claims he was born in Hebei Province and is a citizen of China. He provided a copy of his passport which was issued in Hebei Province [in] 2007. He has consistently claimed that he is of Chinese nationality.
Taking into account the available evidence, and noting there is no issue as to identity or nationality, the Tribunal is satisfied that the applicant is a citizen of China and that China is the receiving country for the purpose of s.36(2)(aa) of the Act.
What are the applicant’s claims?
The applicant’s claims are set out in the statement accompanying the application for protection.
The applicant discussed his claims for protection with the delegate at an interview on 17 April 2019.
Essentially the applicant claims if he returns to China he faces serious harm from Chinese authorities because he and his wife were in breach of the “one child” policy when their second son was born in [year]. He claims that he and his wife were mistreated and forced to pay a large fine. He claimed he would be persecuted if he returned to China.
Assessment of claims and evidence
In the statement of 25 November 2016, the applicant stated that he was born in Hebei. He claimed he has been persecuted by the Chinese government because he had two children; the second child born in [year]. In addition to persecution, he had a huge debt imposed on him.
He and his wife married in 1999 and they have two sons. He claimed that when his wife became pregnant, she went to a relative’s home and the government authorities detained and mistreated the applicant to find out his wife’s whereabouts. Government authorities went to his house and took away all the valuables. He also had to pay a sum of money. He claimed that authorities took his wife and son to the town planning commission.
He stated that a penalty bill was issued for the applicant to pay and he went abroad and worked [overseas] and after 10 months hard work from 2010 to 2011 he earned income and paid off his debt.
He came to Australia on a tourist visa in 2012.
He claimed that even though the government has changed the policy and allows couples to have two children there is no freedom and democracy in China. He stated he would not be allowed to have any more children and if he did have more children they would not be able to be registered and would not have educational and employment opportunities.
He claimed the government was corrupt and there was no work in villages, and they were deprived of clean water, food and medical care. He stated that although he missed his family he does not wish to return to China.
In the interview with the delegate in April 2019 the applicant told the delegate that he and his wife had been subject to harassment during his wife’s second pregnancy. These included attempts to persuade his wife accept an abortion, being detained and being forced to pay a large fine in [year].
The applicant stated after that things got better, and he bought a property in around 2008. He stated that there were no further incidents with authorities and that that his children were registered, and the fines had been paid.
The applicant told the delegate that he feared if he returned to China the authorities would be after him and the government could force him to make a payment. He claimed that anyone with a second child could be targeted in China. He stated his family had not received any threats or harm while he has been in Australia.
The applicant told the delegate that he had delayed lodging a protection visa for four years because it was only in 2016 that people told him about the option to apply for protection visa.
He stated that he did not want to return to China as he fears being persecuted by the government and there are no human rights in China compared to Australia. He claims that even though his children were registered, and he had paid fines for the second child he still owed the government money. The applicant stated he could pay the money but he prefers life in Australia.
CONSIDERATION
The Tribunal has before it a statement made in 2016 and an account of the interview with the delegate as set out in the delegate’s decision record.
Given the claims made as to harassment and the imposition of a penalty took place in [year], the Tribunal accepts it is possible that the applicant may have been harassed and mistreated at that time.
The evidence before the Tribunal indicates that since that time the social compensation fee has been paid, the applicant’s children have obtained household registration (hukou) and he and his family had not suffered any harm or threats of harm since [year].
As set out in the delegate’s decision which was provided to the Tribunal, the applicant applied for protection some four years after his arrival in Australia and the Tribunal considers this is not consistent with the applicant’s claims that he genuinely fears harm if he were to return to China.
The applicant acknowledged in his 2016 statement that Chinese government policy had changed, and couples are able to have two children without paying a social compensation fee. The Tribunal also notes that more recent country information indicates that couples are able to have three children and Chinese authorities are encouraging couples to have more children[1].
[1] Country Information Report on China; Department of Foreign Affairs and Trade (DFAT), 21 December 2021, p. 30
The Tribunal does not accept that if the applicant returned to China he would not have access to work, clean water, food and medical care. The applicant has not referred to any credible country information and the Tribunal has no country information before it which would support such a claim.
The applicant stated that he still owed the government money. Without taking evidence from the applicant at a Tribunal hearing where he could have provided further details about the nature of the claimed debt and how the debt arose the Tribunal cannot be satisfied that this debt gives rise to any protection obligations. The Tribunal accepts the applicant’s claim that China has a poor record of human rights in some areas and that he prefers the environment in Australia, however, there is no evidence or country information which indicates that he would face a real chance of persecution for this or any other reason set out in the Act.
Does the applicant meet the refugee criterion?
In light of the above findings, the Tribunal is not satisfied that the applicant faces a real chance of serious harm amounting to persecution from the Chinese authorities for reason of his breach of family planning policies in [year].
It follows that the Tribunal is not satisfied that he has a well-founded fear of persecution for one of the reasons set out in s.5J(1) of the Act should he return to China, such as his imputed anti-government political opinion or membership of a particular social group, being persons who have had children outside the relevant family planning policies of the Chinese government.
The applicant has not claimed, and there is nothing to suggest, that he has a well-founded fear of persecution for any other reason listed in s.5J(1).
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Does the applicant meet the complementary protection criterion?
Having found that the applicant does not meet the refugee criterion, the Tribunal has considered whether on the evidence before it, there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to China
Having considered the applicant’s circumstances singularly and on a cumulative basis, and for all the reasons set out above, 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 that there is a real risk he will be arbitrarily deprived of his life or suffer the death penalty, or subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
The Tribunal is therefore 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.
Louise Nicholls
Senior Member

ATTACHMENT
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.
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 1522

27 April 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice