2004847 (Refugee)

[2023] AATA 4572

2004847 (Refugee) [2023] AATA 4572 (21 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2004847

COUNTRY OF REFERENCE:                   China

MEMBER:Shahyar Roushan

DATE:21 November 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection (Class XA) visa.

Statement made on 21 November 2023 at 7:15pm

CATCHWORDS

REFUGEE – Protection Visa – China –applicant did not seek hearing – protection claims relate only to harm faced if returned to South Korea – not a citizen of South Korea – fear of harm by North Korean agents – no claims for protection relate to country of nationality –decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 499

Migration Regulations 1994, Schedule 2, cl 866.221

CASES
Applicant A v MIEA (1997) 190 CLR 225
Applicant S v MIMA (2004) 217 CLR 387
Appellant S395/2002 v MIMA (2003) 216 CLR 473
Chan Yee Kin v MIEA (1989) 169 CLR 379
Chen Shi Hai v MIMA (2000) 201 CLR 293
MIEA v Guo (1997) 191 CLR 559
MIMA v Haji Ibrahim (2000) 204 CLR 1
MIMA v Khawar (2002) 210 CLR 1
MIMA v Respondents S152/2003 (2004) 222 CLR 1
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51

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

BACKGROUND

1. The applicant arrived in Australia on [date] February 1999 on a fraudulent Korean passport under the alias [Alias 1]. She lodged an application for a Protection visa on 18 March 1999.

2. On 6 April 1999, a delegate of the Minister refused the applicant’s Protection visa application. The applicant, however, was not correctly notified of the delegate’s decision.  

3. On 22 July 2019, the applicant’s representative alerted the Department in writing to the incorrect notification and stated that the applicant’s name is [applicant name], she was born on [date], and she is a national of China.

4. The applicant’s representative subsequently presented to the Department certified copies of the applicant’s passport, birth certificate and Chinese national ID card issued in the name of [applicant name], born on [date] in Jilin, China.

5. Departmental records indicate that the applicant was eventually re-notified of the delegate’s decision on 20 February 2020, and she subsequently applied for a review of that decision.

6. This is a review of the decision to refuse to grant the applicant a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

   CLAIMS AND EVIDENCE

7. According to her Protection visa application, the applicant was born in South Korea and resided in that country until her departure for Australia. In response to questions in relation to her reasons for claiming to be a refugee, the applicant claimed, in essence, that she was engaged in ‘political activities’ against the North Korean government, she was blackmailed by North Korean agents, and she was in a ‘dangerous situation’ due to her father’s past activities against North Korea. She feared being captured and harmed by North Korean agents if she were to return to South Korea.

8. The applicant was not invited to an interview with the Department and as already noted, the delegate refused the application.

9. The applicant applied for a review of that decision on 11 March 2020.

10. On 26 September 2023, the Tribunal wrote to the applicant advising that it had considered all the papers relating to her 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 on 22 November 2023.

11. On 21 November 2023, the Tribunal was advised by the applicant’s representative that the applicant did not wish to participate in the hearing and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable her to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Relevant Law

12. Under s 65(1) a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied. The criteria for a protection visa are set out in s 36 of the Act and Part 866 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). As a result of amendments to the Act, some of the criteria in s 36 do not apply to visa applications made before 1 October 2001. However, the criteria in cl 866.221 of the Regulations, as applicable to this application, broadly reflect the criteria for a protection visa in s 36(2) of the Act. An applicant for the visa must meet one of the alternative criteria in cl 866.221(2), (3), (4) or (5): cl 866.221(1). That is, the applicant is either a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention), or on other ‘complementary protection’ grounds, or is a member of the same family unit as a person to whom Australia has protection obligations under either the Refugees Convention or the complementary protection grounds and that person holds a protection visa.

    Refugee criterion

13. Clause 866.221(2) is satisfied if the Minister is satisfied that the applicant for the visa is a person to whom Australia has protection obligations under the Refugees Convention.

14. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

15. The High Court has considered this definition in a number of cases, notably Chan Yee Kin v MIEA (1989) 169 CLR 379, Applicant A v MIEA (1997) 190 CLR 225, MIEA v Guo (1997) 191 CLR 559, Chen Shi Hai v MIMA (2000) 201 CLR 293, MIMA v Haji Ibrahim (2000) 204 CLR 1, MIMA v Khawar (2002) 210 CLR 1, MIMA v Respondents S152/2003 (2004) 222 CLR 1, Applicant S v MIMA (2004) 217 CLR 387, Appellant S395/2002 v MIMA (2003) 216 CLR 473, SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51.

16. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the regulations to a particular person. These provisions were inserted on 1 October 2001 and apply to all protection visa applications not finalised before that date.

17. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

18. Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). The expression ‘serious harm’ includes, for example, a threat to life or liberty, significant physical harassment or ill-treatment, or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant’s capacity to subsist: s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

19. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

20. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.

21. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

22. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.  Whether an applicant is a person to whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

23. If a person is found not to meet the refugee criterion in cl 866.221(2) he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a person to 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 applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: cl 866.221(4) (‘the complementary protection criterion’).

24. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act. 

    Mandatory considerations

25. 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.

    FINDINGS AND REASONS

26. 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).

27. The applicant entered Australia on a fraudulent Korean passport under the alias [Alias 1]. She subsequently submitted a copy of a passport issued by the Peoples Republic of China [date] in the name of [applicant name], born on [date]. She also submitted a copy of her national ID card issued in the same name and with the same date of birth.  

28. I find on the basis of this evidence that the applicant’s name is [applicant name] and that she was born on [date] in Jilin, China. I find that the applicant is a national of China. I also find that the applicant has no other nationality. She is not a citizen of South Korea.

29. The applicant has made no claims for protection against her country of nationality, China. She has not provided any further information to suggest that she has experienced serious harm or significant harm in China in the past or that she fears being subjected to serious or significant harm if she were to return to that country.

30. On the basis of the evidence before me, I am not satisfied that the applicant faces a real chance of persecution in China for one or more of the reasons enumerated in the Convention definition. I find that the applicant does not have a well-founded fear of being persecuted. I am also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that she will suffer significant harm.

    CONCLUSIONS

31. I am not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant does not satisfy the criterion set out in cl 866.221(2).

32. Having concluded that the applicant does not meet the refugee criterion in cl 866.221(2), I have considered the alternative criterion in cl 866.221(4). I am not satisfied that the applicant is a person to whom Australia has protection obligations under cl 866.221(4).

33. There is no suggestion that the applicant satisfies cl 866.221 on the basis of being a member of the same family unit as a person who satisfies cl 866.221(2) or (4) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in cl 866.221 for a protection visa.

    DECISION

34. The Tribunal affirms the decision not to grant the applicant a Protection (Class XA) visa.

    Shahyar Roushan
    Senior Member