2013260 (Refugee)

[2021] AATA 631

2013260 (Refugee) [2021] AATA 631 (3 February 2021)

DECISION RECORD

DIVISION:	Migration & Refugee Division
CASE NUMBER:	2013260
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 12:21pm

CATCHWORDS
REFUGEE – protection visa – China – land acquisition – embezzlement of the land compensation – father’s petitioning activities – non-appearance before the Tribunal – veracity of claims cannot be assessed – no supporting documentary evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 426, 426A
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 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 31 January 2018. The visa was refused on 19 August 2020. The Applicant lodged his review application with the Tribunal on 26 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. The Applicant also provided a copy of the delegate’s decision to the Tribunal following lodgement of the 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 11:30 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 to call the Applicant was made at 11:30 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)other relevant documents on the Tribunal and Department files;

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

   (e)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 Shenyang City, Liaoning Province, 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 is not married. The Applicant stated that he is not religious and is able to speak, read and write Mandarin.

3. The Applicant arrived in Australia [in] February 2014, having been granted a [student] visa which was set to expire on 22 August 2016. He applied for a protection visa on 31 January 2018, which was well after the expiry of his [student] 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 a written statement attached to his protection visa application form. In summary, those claims are as follows:

   (a)In December 2016, the Applicant’s family land was within the scope of land acquisition in [District 1]. The township government did not honour their promise of land compensation. This caused for a strong dissatisfaction among the villagers.

   (b)The villagers went to the township government many times for their money, but the town government officers either avoided meeting the villagers, or sent police to suppress and expel the villagers.

   (c)The Applicant’s parents and the villagers started petitions. In May 2017, his father and the villagers went to [District 1] government to report the township government officials’ embezzlement of the land compensation. [In] May 2017, police arrested his father at their home. Police accused his father of organising the villagers to make trouble, falsely accusing the township government officials of embezzlement and disturbing the social stability.

   (d)The Applicant’s father was abused and beaten at the police station. Police handcuffed his father and lifted him high, then beat him. They threatened him and told him to give up petitioning. His father was tortured for three days before being released.

   (e)[In] July 2017, the Applicant’s father went to [the City 1] Bureau of Letters and Calls to report the township government officers’ embezzlement of the compensation payments. His father was stopped by the plain clothes police outside the Bureau of Letters and Calls. The police from the Public Security Bureau said his father was neurotic who spread rumours everywhere to affect the social stability. They also forced his father to admit he had a history of mental illness and he promised not to petition again.

   (f)When the Applicant learned about the situation at home, he was very worried and wanted to return to China. His parents said the Chinese government officials were so corrupted and autocratic that he would not be let go if he returned to China. The Applicant then posted in [an online] forum to disclose the evil behaviour of those corrupted officials. He was hoping his post would get the attention of the superior leaders and they would look into the issue.

   (g)Soon after his post in the [online] forum, the Applicant’s father was arrested again. The police warned him that they would arrest him again if they saw any more posts on the Internet. The Applicant is so scared of being punished by the Chinese government officials that he dare not return to China.

2. The Applicant provided no further documentation in support of the claims contained in his original protection visa application.

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, although the Applicant has attempted to provide dates and particular details of relevant incidents that occurred in his home country giving rise to his claims, it is evident that they took place while he was in Australia. He was a not a witness to any of the events. The claims are otherwise vague and unsubstantiated. 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 second-hand account of the events he has described in his application form. Even then, the inferences that might be capable of being drawn as to what has happened to the Applicant’s family in China in the past, and what is likely to happen to the Applicant himself 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 Applicant 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 ‎[19], appear to constitute a second-hand account of events the Applicant did not personally witness. 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 particular, he has not provided a copy of the internet post on which his case for a protection visa seems to depend so heavily. 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