2013029 (Refugee)

[2021] AATA 594

2013029 (Refugee) [2021] AATA 594 (3 February 2021)

Date:                  3 February 2021

DECISION RECORD

DIVISION:	Migration & Refugee Division
CASE NUMBER:	2013029
COUNTRY OF REFERENCE:	China
MEMBER:	Dr Jason Harkess
DATE:	3 February 2021
PLACE OF DECISION:	Melbourne
DECISION:	The Tribunal affirms the decision not to grant the Applicant a Permanent Protection (Class XA) (Subclass 866) visa

Statement made on 03 February 2021 at 9:59am

CATCHWORDS

REFUGEE – protection visa – China – family harassed by local developer colluding with police – father arrested – vague claims and evidence – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth), s 2A
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 56, 65, 426, 426A, 499
Migration Regulations 1994 (Cth), Schedule 1, cl 1401; Schedule 2, cls 866.1 to 866.611

CASES
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SZLPN v Minister for Immigration and Citizenship [2010] FCA 202
SZNRZ v Minister for Immigration and Citizenship [2010] FCA 107

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

INTRODUCTION AND OVERVIEW

Protection Visa Refusal – Application for Review

1. The Applicant is a citizen of China and is [age] years of age. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the Minister’) refusing to grant him a protection visa.

2. The Applicant originally applied for the protection visa on 9 January 2019. The visa was refused on 19 August 2020. The Applicant lodged his review application with the Tribunal on 20 August 2020.

Type of Visa

1. The specific type of visa the Applicant applied for is classified under the Migration Regulations 1994 (Cth) (‘the Regulations’) as a Permanent Protection (Class XA) (Subclass 866) visa.[1] Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of s 65 of the Migration Act 1958 (Cth) (‘the Act’).

   [1] See Migration Regulations 1994 (Cth), Sch 1, cl 1401; Sch 2, cls 866.1 to 866.611.

2. If granted, a Subclass 866 protection visa permits a non-citizen to remain in Australia indefinitely.

Applicable Criteria

1. The criteria for the grant of a protection visa are set out in s 36 of the Act and Sch 2 of the Regulations. An applicant must establish that they are a non-citizen in Australia and that they are either:

   (a)a person in respect of whom Australia has protection obligations because the person is a ‘refugee’ (‘the refugee criterion’);[2]

   (b)a person in respect of whom Australia has protection obligations because of other ‘complementary protection’ grounds (‘the complementary protection criterion’);[3] or

   (c)a member of the same family unit of a person who has been granted a protection visa on refugee or complementary protection grounds (‘family member protection criterion’).[4]

   [2] Migration Act 1994 (Cth), s 36(2)(a).

   [3] Migration Act 1994 (Cth), s 36(2)(aa).

   [4] Migration Act 1994 (Cth), s 36(2)(b), (c).

Reasons for Initial Refusal

1. In his original application form lodged with the Department, the Applicant sought a protection visa claiming that he met the refugee criterion or the complementary protection criterion. The delegate was not satisfied that he met either. The Applicant did not claim to meet the family member protection criterion. The delegate therefore refused the visa application.

2. The delegate’s reasons are set out in a decision record. A copy of that record was provided to the Applicant when he was notified of the delegate’s decision. That notification prompted the Applicant to lodge the present review application.

Issues for Determination by Tribunal

1. The following issues arise for determination by the Tribunal in relation to the present review application:

   (a)whether the Applicant meets the refugee criterion;

   (b)whether the Applicant alternatively meets the complementary protection criterion.

Determination of Application without Hearing

1. The Tribunal wrote to the Applicant by letter dated 12 January 2021, inviting him to appear before the Tribunal at a hearing of his application that would provide him with an opportunity to give evidence and present arguments in support of his case (‘the hearing invitation’). The hearing invitation indicated that the hearing was scheduled to take place by phone at 9:30 AM on 3 February 2021. The hearing invitation also indicated that if the Applicant did not participate in the hearing the Tribunal may proceed to make a decision in relation to his application without enabling him any further opportunity to participate in a hearing.

2. The Applicant did not respond to the hearing invitation and did not appear at the time and place at which the hearing was scheduled to take place. Several attempts were made by the Tribunal to contact the Applicant by phone, but without success, on the phone number that he had provided to the Tribunal for the purposes of the Tribunal communicating with him in relation to his review application. The last of those unsuccessful attempts was made at 9:30 AM on 3 February 2021.

3. No further communications have been received from the Applicant since his failure to appear at the scheduled hearing. The Tribunal is satisfied that the hearing invitation was sent to an email address that had been designated by the Applicant as a principal method by which the Tribunal could communicate with him in relation to his review application. The Tribunal finds that the Applicant has not communicated any explanation as to why he failed to appear at the scheduled hearing.

4. By the operation of ss 426A(1) and 426(1A)(a) of the Act, in circumstances where an applicant has been invited to appear before the Tribunal and has failed to do so at the scheduled time and place, the Tribunal may proceed to make a decision on the review without conducting a hearing. The Tribunal has considered whether it should exercise its discretion to do so in this case. The Tribunal notes that it is a government funded body with limited resources. It has a statutory duty to discharge its functions fairly, justly, economically and quickly, and in a manner that promotes public trust and confidence in the Tribunal’s decision-making responsibility.[5] Having regard to these factors, and also to the fact that the Applicant has failed to communicate with the Tribunal at all since the hearing invitation was sent to him, the Tribunal has decided to exercise its discretion to make a decision without a hearing, having regard to all the relevant material presently before it.

   [5] See Administrative Appeals Tribunal Act 1975 (Cth), s 2A.

Tribunal’s Determination

1. The Tribunal has concluded that the decision to refuse the Applicant a protection visa ought to be affirmed in this case, for the reasons which are set out below. In reaching its decision, the Tribunal has had regard to:

   (a)the delegate’s decision record;

   (b)the Applicant’s original written visa application;

   (c)the oral evidence and arguments presented at the hearing;

   (d)other relevant documents on the Tribunal and Department files;

   (e)the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs;[6]

   (f)country information assessments relating to China that have been prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes.[7]

   [6] These are mandatory considerations as prescribed by Ministerial Direction No 84, a direction made under s 499 of the Act (‘Direction No 84’).

   [7] These are also mandatory considerations under Direction No 84.

2. The Tribunal notes that not all the evidence and material that has been placed before it has been specifically referred to in the Tribunal’s reasons as set out below. The reasons incorporate reference only to that information that the Tribunal has been found to be materially significant to the determination of the issues in the case.[8]

CONSIDERATION OF APPLICANT’S CASE

[8] The Tribunal notes that it is not required to make explicit reference every relevant piece of information before it because not all relevant considerations will be central or fundamental to every case. See Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271.

Original Protection Visa Application

1. The Applicant was obliged to complete a form when he lodged his protection visa application. The form requested that he provide details about his personal background, his circumstances leading up to his arrival in Australia, and his reasons for applying for a protection visa.

Applicant’s Background

1. In his application form, the Applicant stated that he comes from Puyang County, Henan, China. He stated that he is a citizen of China by birth. A copy of his passport, which he provided to the Department, corroborated this claim. He further said that he does not hold citizenship of any other country.

2. The Applicant further stated that he was married in 2006 and has [children]. The Applicant stated that he is not religious and is able to speak, read and write Mandarin.

3. The Applicant arrived in Australia [in] June 2017, having been granted a Subclass 600 (Visitor) visa which was set to expire on 29 September 2017. He applied for a protection visa on 9 January 2019, which was well after the expiry of his Subclass 600 (Visitor) visa. He has not departed Australia since the protection visa application was made.

Protection Claims

1. The Applicant’s original claims for protection are to be found in answers to questions in his protection visa application form. In summary, those claims are as follows:

   (a)The Applicant said his family ‘suffered corrupt government persecution in China’. He referred to a ‘local developer colluding with police and officials wanted to forcibly occupy my family [shop]’. The Applicant’s father petitioned to expose the persecution but was arrested and placed in a detention centre for doing so.

   (b)The Applicant explained that his parents are good and honest people, who were running a [shop] in his home town. He referred to a city developer wanting to buy the shop. His parents did not wish to sell it. A group of gangsters came to smash the shop and the Applicant’s father called the police. However, the police not only failed to stop gangsters, but they also sealed the shop. The Applicant’s father then decided to petition the local city government for this conduct. The Applicant’s father formally wrote to the government to draw attention to the injustice and how it had impacted the family. The response of the government official dealing with the petition, [named], was to have the Applicant’s father and all other petitioners arrested. Police also seized the family home. The Applicant’s mother was stunned and fainted as a result of the police action and was hospitalized. The Applicant himself eluded the police because he was not in the house at the time. The police said that the Applicant’s family ‘slandered’ the government official, that they were stifling economic development, and that they must therefore be severely punished.

   (c)The Applicant’s mother was afraid all this would have a very bad impact on the Applicant and decided to send him abroad.

   (d)The Applicant claims that he did not experience harm in China himself.

   (e)The Applicant did not attempt to relocate elsewhere China. He believes that the Chinese government ‘is riddled with corruption’ and that no matter where he went in China, he would be caught and harmed. He further explained that ‘the whole of China is the same’. If he were to return to China, he would not be able to live anywhere else in China because he would be arrested ‘no matter where I go’.

   (f)The Applicant believes if he is to return to China, he will be arrest, sent to a detention centre where he will suffer abuse.

   (g)Because of his belief that Chinese authorities are corrupt, he does not believe that the Chinese government is able to afford him any protection if he were to return to the country.

2. The Applicant provided no further documentation in support of the claims contained in his original protection visa application after being requested by the delegate to do so pursuant to s 56 of the Act.

Country Information

1. The Department of Foreign Affairs and Trade (‘DFAT’) most recently published an information report about China on 3 October 2019. In this case, given the very vague and unsubstantiated nature of the Applicant’s claims, the Tribunal has not been able to discern anything in the DFAT report other than general observations about China that might obliquely tend to support the Applicant’s claims. Even then, the inferences that might be capable of being drawn as to what has happened to the Applicant in China in the past, and as to what is likely to happen to him if he returns, would be highly speculative. Nothing contained in the DFAT report is capable of assisting the Tribunal in these circumstances. Accordingly, there is nothing in it that warrants specific mention now.

Analysis of Evidence and Factual Findings

1. When assessing claims, the Tribunal must make findings of fact in relation to those claims. In doing so, the Tribunal must assess whether the Applicant’s claims are credible. Credibility is to be assessed by having regard to the individual circumstances of the case and the evidence before the Tribunal.[9]

   [9] Department of Home Affairs, PAM 3: ‘Refugee Law Guidelines’, [15.3].

2. The Tribunal also recognises that applicants may be stressed as a result of being separated from home and family. They may also have difficulty in remembering details of events as a result of the passage of time. Cultural issues may affect the manner in which they answer questions. The nature of their claims, if genuine, may cause them some consternation in expressing their fears.

3. If the Tribunal finds an applicant to be generally credible, they should be given the benefit of the doubt where they are unable to fully substantiate all of their claims.[10] However, this only applies if the Tribunal is satisfied as to the Applicant’s general credibility in the case at hand.[11] An applicant is not entitled to have claims accepted simply because there is a possibility that they might be plausible.[12]

   [10] Ibid [15.4].

   [11] SZNRZ v Minister for Immigration and Citizenship [2010] FCA 107; UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (2019), [203]-[204].

   [12] SZLPN v Minister for Immigration and Citizenship [2010] FCA 202, [17].

4. Ultimately, it is for the applicant to satisfy the Tribunal that the statutory criteria for the grant of a protection visa are met. The Tribunal is not obliged to assist an applicant in establishing their case. Nor is the Tribunal required to accept uncritically any or all of their claims.[13] It is the responsibility of the applicant to specify all particulars of their claim and to provide sufficient evidence in support of it.[14]

   [13] MIEA v Guo (1997) 191 CLR 559, 596’ Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155, 169-70.

   [14] Migration Act 1958 (Cth), s 5AAA(2).

5. In this case, the Tribunal has not participated in a hearing before the Tribunal in circumstances where the credibility of the Applicant’s claims is potentially a major issue. The Applicant’s claims, as referred to in paragraph ‎[18] are, at best, vague and lack any reasonable degree of specificity. The Tribunal is not in a position to test the veracity of the Applicant’s claims, as contained in his original protection visa application, without him presenting himself for questioning at a hearing. He has otherwise provided no supporting documentary evidence which might be capable of corroborating any of his claims in a meaningful way. In these circumstances, the Tribunal is not prepared to accept any of the Applicant’s claims.

Conclusion

1. The Tribunal is not satisfied that the Applicant meets either the refugee criterion or the complementary protection criterion.

DECISION

1. The Tribunal affirms the decision not to grant the Applicant a Permanent Protection (Class XA) (Subclass 866) visa.

Dr Jason Harkess

Member