1915729 (Refugee)

[2021] AATA 5134

1915729 (Refugee) [2021] AATA 5134 (1 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1915729

COUNTRY OF REFERENCE:                   China

MEMBER:Amanda Paxton

DATE:1 December 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 01 December 2021 at 2:43pm

CATCHWORDS

REFUGEE – protection visa – China – applicant failed to attend hearing – fears being harmed and mistreated by moneylenders – applicant has provided very limited information –   inability to question him about the veracity of his claims – decision under review affirmed

LEGISLATION

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

Migration Regulations 1994, Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 June 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who is a citizen of China, applied for the visa on 30 May 2018.

3. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a Protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Migration Act 1958 (the Act).

4. The applicant applied for review of the refusal decision at the Tribunal on 18 June 2019.

   CRITERIA FOR A PROTECTION VISA

5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.

6. 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.

7. 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: s5H(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: s5H(1)(b).

8. 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.

9. 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

10. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Credibility

11. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J of the Act in China and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm.

13. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background

14. The applicant stated in his application that he was born on [date] in the city of Jining, Province of Shandong, China.[1] In addition to the information provided in the visa application form, the applicant’s passport provides the same date and place of birth on the passport bio-data page.[2]

    [1] [Department file number], Doc Id 5832159, Application for a protection visa - record of responses.

    [2] [Department file number], Doc Id 5832158.

15. The applicant stated that he was married [in] January 1998 to [Ms A] whose date of birth is [date][3], however there are no members of the same family unit either included or not included in the application.

    [3] [Department file number], Doc Id 5832159, Application for a protection visa - record of responses.

16. The applicant speaks, reads and writes in the Mandarin language.[4]

    [4] [Department file number], Doc Id 5832159, Application for a protection visa - record of responses.

17. The applicant identifies with the Chinese ethnic group and has no religion.[5]

    [5] Ibid.

18. The applicant stated in his application record of responses that he departed from Guangzhou China, legally as the holder of Chinese passport [number] [in] August 2017, and arrived in Melbourne Australia on [date] August 2017 as the holder of a visitor visa.

    Written claims for protection

19. The applicant’s written claims for protection are included in the application for protection visa Record of Reponses.[6] The applicant’s claims are summarised below.

    ·     The applicant fears being harmed and mistreated by moneylenders in China because he owes them money and cannot repay his debts.

    ·     The applicant was born in Shandong Province, in [year]. His parents are farmers.

    ·     After his graduation, he felt confused about his future, and he faced difficulties in finding a good job.  He claims that to access such jobs people need to have the right connections. He did not have those connections, so he found a job in a factory to support his family. Because he did not earn enough. He borrowed money from a local money lender at a very high rate.

    ·     The high interest rate makes it difficult for the applicant to repay the money.  Therefore the criminal syndicate has targeted the applicant and his family. The criminal syndicate discovered that the family went to the police, and they started to insult the applicant at his home every day.  The applicant had no other choice but to escape to Australia.

    ·     Chinese official corruption is extremely widespread, and bureaucrats shield one another. It is the same all over China and the whole political system in China is corrupt.

    ·     The applicant does not think that the government would protect him from aggressive and unscrupulous moneylenders.

    ·     The applicant believes that if he returns to China the local money lender, criminal syndicate and the police will continue to persecute him.

    [6] Ibid.

20. Apart from the copy of the bio-data page of his passport, the application for protection visa form and the application for review at the Tribunal, the applicant has not provided any further documents to either the Department or Tribunal to support his claim for protection in Australia.

21. The Department file indicates that the applicant was provided with opportunities to specify the particulars of his claim to be a person in respect of whom Australia has protection obligations. The application form completed by the applicant stated that they should provide all the details about why they are seeking protection and where possible, documentation to support their claims.  It also stated that the decision on their case may be made on the information provided in the application and that it was important to include all details relevant to their case and supporting documentation with the application.

22. In addition, on 13 June 2018 the applicant was sent an acknowledgement of valid application letter by the Department, which stated he could provide additional information relating to his claims.[7] The applicant was provided three channels for providing additional information: ImmiAccount, mail or in person at the time of the collection of personal identifiers. The letter also informed the applicant that the decision on his application could be made without another opportunity to present any further information.

    [7] Doc id. 5832160 Acknowledgement of application letter dated 30/5/2018 pp 27 of bookmarked Department file.

23. The applicant has not lodged any pre-hearing submissions to the Tribunal.

24. On 16 November 2021, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing by video conference at 9.00 am on 1 December 2021. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision without further notice. No response was received.

25. On 16 November 2021, the applicant was invited to attend a test dial for the hearing which was to be conducted by Microsoft Teams on 24 November 2021. Tribunal records indicate that the hearing attendant for the test-dial attempted to contact the applicant by telephone twice after 11:00am on his listed phone number, but that the applicant did not respond on either occasion. On 16 November 2021, the Tribunal sent the applicant a further invitation to participate in a test dial scheduled for 24 November 2021 at 12:00 noon, to ensure that the applicant could participate in the hearing using your preferred device. The applicant did not attend the meeting at the scheduled time, and further attempts to contact the applicant were made on three further occasions.

26. On 25 November 2021, the applicant was called on the listed number to discuss his upcoming hearing, but he did not respond. On the same day, the Tribunal sent an email marked urgent requesting the applicant contact the Tribunal in relation to his hearing.

27. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. He has not contacted to the Tribunal to explain his absence.  The Tribunal is satisfied the applicant was provided with a full opportunity to attend a hearing to provide evidence and argument. 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 attend a hearing.

28. In essence the applicant claims he is at risk of harm in China at the hands of money lenders because he borrowed money from a local money lender at a high rate and is unable to repay his debts. He claims he became the target of a criminal syndicate who discovered he went to the police and started to harass him every day. He claims the government will not protect him because it is corrupt, and he will continue to be persecuted by the criminal syndicate on return to China.

29. However, the applicant has provided very limited information regarding his involvement with the money lender and the problems he faced because of this. For example, he has not provided details of the money lender, the reasons, amount and terms of the loan. He has not provided any details about the criminal syndicate, or the action they took to recover the loan. He has not provided any information about his claimed contact with police or their response, or the basis for his claim that the government will not protect him.

30. If the applicant had attended the hearing it would have been possible for the Tribunal to explore these issues fully. However, he failed to do so and, on the limited evidence currently before it, the Tribunal is not satisfied that he faces a real chance of serious harm or a real risk of significant harm at the hands of a criminal syndicate because he has borrowed money from a money lender and cannot repay the loan or for any other reason.

31. On the evidence before it, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in s.5J(1) or 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 he will suffer significant harm.

    CONCLUSION

32. 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).

33. 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).

34. 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

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

    Amanda Paxton
    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.

    …