1931085 (Refugee)

[2024] AATA 3674

1931085 (Refugee) [2024] AATA 3674 (21 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1931085

COUNTRY OF REFERENCE:                   China

MEMBER:Paul White

DATE:21 June 2024

PLACE OF DECISION:  Sydney

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

Statement made on 21 June 2024 at 11:15am

CATCHWORDS
REFUGEE – protection visa – China – bad debt, family trouble and avoiding ex-boyfriend – supporting young adult child, finding employment and accessing health care – economic circumstances not systematic and discriminatory conduct or serious or significant harm – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), 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 dependants.

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 17 May 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who is a citizen of China, arrived in Australia [in] December 2017 and applied for the protection visa on 25 February 2018 (PV application). The delegate refused to grant the visa on the basis that the applicant did not provide details about what harm she fears in China. The delegate was not satisfied that the applicant's motive for not wishing to return to China was a fear of harm for any of the reasons provided in s 5J(1)(a) of the Act.

3. The applicant appeared before the Tribunal on 12 June 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant gave evidence about her background, her migration history, and her claims for protection.

   Claims and evidence

   Background

4. The applicant is a [Age]-year-old woman who was born in Hunan, China. She is Han Chinese. She said at Tribunal hearing she has no religion. She did not complete high school. She has [siblings] in China who are all farmers. She said she had been separated from her husband for a long time. He now lives in Guangzhou. Her [Age]-year-old son lives in the applicant’s house in Hunan in China and is currently unemployed. The applicant has [brothers and sisters] in China all of whom are farmers. They live separately in their own homes and have land to farm.

   Immigration  

5. The applicant has a People’s Republic of China passport issued [in] 2017 that will expire [in] 2027. She arrived in Australia in December 2017.  She went sightseeing for two weeks before starting work as [an occupation]. She was told to get a bridging visa so she could stay in Australia and work to make some money. She has been working in Australia for some 6½ years; [occupations/job tasks/workplaces].

   Claims

6. The applicant claimed in her PV application that she had left China due to a bad debt; family trouble and to avoid an ex-boyfriend. In response to the question about what she thinks will happen to her if she returns to China she said because Australia is safe, human freedom and with job opportunities.

7. I asked the applicant what difficulty she might have should she return to China. She said there would be no freedom and at her age it would be difficult to find a job. She said her employment prospects were better in Australia.

8. I asked her what she did with the freedom she had in Australia. She said she lives freely and there are more work opportunities here so she can make a living by doing a job. The applicant said she did not graduate from high school so it's difficult to get jobs in China. She said there was a lot of work in Australia.

9. The applicant said in Australia she has had some medical support. She would have difficulty paying fees for medical support in China. She has treatment from a Chinese medicine practitioner in Australia for a [physical] problem. She said she has not been to a western doctor as they are too expensive. She has been to an acupuncturist. She did not go to a neurologist. She said she had some difficulty with Medicare because she was here as an illegal.

10. I suggested she should have savings after six years working. She said she does not have much in savings because she pays various expenses in Australia, and she transfers money back to China from time to time. The applicant has a house in China. She pays a cheap annual rent on her house where her son is living in her absence. She speaks to her son every one to two weeks through her WeChat account.

11. The applicant said her son is looking for jobs in China. He graduated from college and worked as [an occupation] in a [workplace]. He did not like the work so gave up.  He is now looking for other jobs. The applicant is separated from his father who is now getting old as he is 10 years older than the applicant.

12. The applicant said she is not involved in any politics. She is not involved in politics because she is not educated so she can't be involved. She said she is just an ordinary person in Australia and China is not democratic.

13. I asked what she did in her spare time in Australia. She said she lives in a small room that she rents. If she is not working, she stays at home and rests or she helps others with cleaning.

14. I explained to the applicant this was her opportunity to make her case.  She said she wants to stay in Australia as employment will be a problem in China and she can find employment here.

15. I asked the applicant what problem she might have if she went back to China e.g. in a few weeks’ time. She said she didn't know the answer to that. The applicant does not have land. She said previously she lived with her parents on land but moved to the city when she married so now has no land.

    CRITERIA FOR A PROTECTION VISA

16. 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.

17. 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.

18. 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).

19. 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.

20. 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

21. 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.

    Analysis, reasons, and findings

22. Based on the applicant’s place of birth and her Chinese passport presented to the Tribunal, and, in the absence of evidence to the contrary, I accept that the applicant is a national of China.  I consider China as the country of nationality and the receiving country for the purpose of assessing her claims against the refugee and complementary protection criteria respectively.

23. The issue in this case is whether there is a real chance that the applicant will face persecution in China or a real risk that she will suffer significant harm if removed from Australia. For the following reasons, I have concluded that the decision under review should be affirmed.

24. As mentioned above the applicant is a refugee if she a person who has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, and the real chance of persecution relates to all areas of China. The applicant does not claim to have a well-founded fear of persecution for a reason mentioned above that brings her within the scope of s 5(1)(a) of the Act. The applicant claims any difficulties she might encounter if she returns to China relate to finding employment easily and level of income. There is no evidence to suggest the applicant will be denied employment for any reason covered by 5J(1)(a). The applicant claims she needs to work to support her son and the economy in China is not as good as in Australia. I note the applicant has been in employment in Australia since she arrived in a variety of jobs. She has developed extra skills in Australia to enhance her work prospects should she return to China.

25. With respect to the applicant’s claims to fear harm because of an inability to gain employment or because of she enjoys greater employment opportunities in Australia, the Tribunal finds the applicant has not articulated any claims which satisfy the thresholds for protection in this regard. The Tribunal notes she did not claim to fear harm on this basis before the Tribunal but testified she had greater opportunities here and wished to stay.

26. The Tribunal notes that in the absence of other considerations, economic circumstances are circumstances of general application in a country and lack the degree of particularity required to give rise to protection obligations under the refugee or complementary protection criteria. The applicant has not provided any evidence regarding her personal circumstances or outlined claims for the Tribunal to be satisfied that her particular circumstances would lead her to face a real chance of serious or significant harm on return to China for reasons of the prevailing economic circumstances in China.

27. The Tribunal notes the applicant has access to cheap housing in China and accepts the applicant’s evidence with respect to her relatively poor economic circumstances in China relative to Australia. However, there is no information before the Tribunal to suggest that the applicant will be subjected to harm on her return to China for one or more of the reasons mentioned in s 5J(1)(a) of the Act. The Tribunal also finds that the economic circumstances in China are generally not such as would meet the definition of serious harm contained in s 5J(5) of the Act.

28. Generalised economic circumstances in a country do not meet the requirements of systematic and discriminatory conduct in the absence of other considerations and do not constitute persecution or discrimination within the meaning of s 5J(4). The Tribunal finds that the applicant has not provided any evidence that the economic circumstances which she referred to in her claims amount to systematic and discriminatory conduct with respect to her.

29. Having regard to the applicant’s individual circumstances the Tribunal finds that the applicant would not face a real chance of serious harm on return to China now or in the reasonably foreseeable future.

30. For the reasons set out above, the Tribunal has found there is no real chance of the applicant suffering serious harm if returned to China on the basis of prevailing economic circumstances in China. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition. The Tribunal notes that this applies equally to the assessment of ‘well-founded fear’ for the purposes of s 5J. To the extent that the definitions of ‘serious harm’ and ‘significant harm’ differ, the Tribunal is satisfied that economic hardship falling short of denial of the ability to subsist does not constitute ‘significant harm’ of the kind contemplated by ss 36(2A) and 5(1).

31. 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 Malaysia, there is a real risk that he will suffer significant harm.

32. I find any difficulties the applicant may face relating to supporting her son, finding employment or health care assistance do not give rise to a real chance of serious harm within the meaning of the Act for the applicant. I appreciate the applicant seeks to stay in Australia where she can find jobs easily and live more easily that in China. However, I find this does not give rise to a real chance of serious harm within the meaning of the Act. The Tribunal has considered whether, having regard the applicant’s claims and her past experiences in China, there is a real chance the applicant will face serious harm or significant harm if she returns to China now, or in the reasonably foreseeable future.

33. The Tribunal finds that the applicant is not of adverse interest to anyone in China. For the reasons given above, the Tribunal finds the applicant was not harmed in China for reasons covered by s 5J(1) of the Act. The Tribunal finds that there is no real chance that the applicant will be harmed if she returns to her home in Hunan in China now, or in the reasonably foreseeable future.

34. The Tribunal has considered whether there is a real chance that the applicant will face significant harm for any reasons. The Tribunal is not satisfied that, if the applicant were to return to her home in Hunan now or in the reasonably foreseeable future there is a real risk she will face significant harm for any reason.

35. Having regard to the findings and having considered all the evidence before it, the Tribunal finds that there is no real chance that the applicant will face serious harm or significant harm from any person or group if she returns to China now or in the reasonably foreseeable future.

36. 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).

37. 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).

38. 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

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

    Paul White
    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.

    …