2013419 (Refugee) - [2024] AATA 3450

2013419 (Refugee) [2024] AATA 3450 (17 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2013419
COUNTRY OF REFERENCE:                   China
MEMBER:B. Mericourt
DATE:17 July 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 July 2024 at 11:42am
CATCHWORDS
REFUGEE – protection visa – China – witness to murder by policeman – detained and threatened – application prepared by agent and claim discontinued at hearing – fear of harm from gang members hired by property developers – house appropriated with inadequate compensation and later demolished – beaten, injured and threatened, and late claim of arbitrary detention – complaints to government – new claims accepted but inconsistent and confused claims and evidence and escalating claims of harm – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulation 1994 (Cth), Schedule 2
CASE
SZLVZ v MIAC [2008] FCA 1816
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 August 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of China, applied for the visa on 1 June 2018. The delegate refused to grant the visa on the basis that s/he was not satisfied that the applicant had a well-founded fear of persecution or that there is a real chance he will be persecuted for one or more of the reasons mentioned in s5J(1) of the Act if he returns to China. Nor was the delegate satisfied that there is any real chance the applicant will suffer significant harm as defined in s36(2A) of the Act if he returns to China.
The applicant appeared before the Tribunal on 12 July 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
CRITERIA FOR A PROTECTION VISA
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.
Section 36(2)(a) provides that a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2013419 (Refugee)

Details

AGLC: 2013419 (Refugee) [2024] AATA 3450
Case: [2024] AATA 3450
Decision Date: 17 July 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the application of a Chinese national for a protection visa. The applicant claimed he feared harm upon return to China, initially alleging he witnessed a police officer commit a murder and was subsequently threatened by that officer. However, at the Tribunal hearing, the applicant recanted this claim, stating it was fabricated by his agent, and instead asserted his fear stemmed from gang members hired by property developers who had appropriated his house.

The central legal issues before the Tribunal were whether the applicant had a well-founded fear of persecution under the refugee provisions of the *Migration Act 1958* (Cth), or alternatively, whether he met the criteria for complementary protection due to a real risk of significant harm upon removal from Australia. The Tribunal was required to assess the credibility of the applicant's claims, consider available country information regarding China, and apply the relevant legislative definitions of "refugee" and "significant harm."

The Tribunal found that the applicant's claims were inconsistent and lacked credibility, particularly his shifting narrative regarding the source of his fear. It noted that the applicant's initial claim of being threatened by a police officer was disavowed at the hearing, and the subsequent claim involving gang members was not substantiated with sufficient evidence. The Tribunal applied the principles outlined in sections 36(2)(a) and 36(2)(aa) of the *Migration Act 1958* (Cth), which require a well-founded fear of persecution or a real risk of significant harm, respectively. Given the lack of credible evidence and the applicant's inconsistent statements, the Tribunal concluded that he did not satisfy the criteria for either refugee status or complementary protection.

Consequently, the Administrative Appeals Tribunal affirmed the decision not to grant the applicant a protection visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Tribunal finds that the applicant is outside his country of nationality. There is no evidence before the Tribunal to suggest that he has the right to enter and reside in any country other than his country of nationality.BACKGROUND The applicant is a [Age]-year-old divorced man from Shandong Province, China. His ex-wife, [Age]-year-old daughter and mother reside in China. The applicant was divorced while he was in Australia in July 2022. He speaks to his mother once or twice a month using Wechat. He has no contact with his ex-wife and daughter. He occasionally sends some money to his elderly mother. The applicant completed middle school in [Year]. In his protection application the applicant said he had never been employed. At the hearing he said that he worked in a [workplace] as [an occupation] in China. In Australia he has been working as [an occupation] in a [workplace]. The applicant entered Australia on 1 March 2018 as the holder of a visitor visa. He lodged his application for protection on the day his visitor visa ceased.CONSIDERATION OF CLAIMS AND EVIDENCE The issues in this case are whether the applicant has a well-founded fear of persecution if he returns to China and if so, does he meet the refugee provisions of the Act? If not, does the applicant meet the protection obligations under the complementary provisions of the Act? The Tribunal has before it the Department’s file relating to the applicant including the delegate’s decision. The Tribunal also has had regard to other material available to it from a range of sources. This includes, but is not limited to the following: ·the applicant’s claims for protection in his application form dated 1 June 2018;·the applicant’s evidence at the Tribunal hearing on 12 July 2024;·Department of Foreign Affairs and Trade (DFAT) Country Information Report – People’s Republic of China, 22 December 2021;·Department of Immigration – PAM3 Refugee and Humanitarian – Refugee Law Guidelines and PAM3 Refugee and Humanitarian – Complementary Protection Guidelines;·Other relevant country information referred to below.Applicant’s claims in his written application for protection to the Department The applicant claims he will be harmed by the police in China as he witnessed a police officer commit a murder. The applicant promised him he wouldn’t tell anyone what he witnessed but the police officer is very cruel and the applicant believes he will try to kill him so no-one will find out about his crime. The police officer locked him in a room for several days without food or water, refusing to let him have visitors and threatened to kill both him and his family if he ever tells anyone. To resolve this problem and secure the safety of his elderly parents he decided to come to Australia. He cannot seek protection as it is a powerful police officer who threatened him.Applicant’s claims at the Tribunal hearing During the hearing the Tribunal discussed with the applicant his family composition, work history, residential history and visa and migration history which are outlined under the heading Background above. The Tribunal then went on to discuss the applicant’s claims and reasons he fears returning to China.

Evidence

Evidence Before The Court

The applicant entered Australia on 1 March 2018 as the holder of a visitor visa. He lodged his application for protection on the day his visitor visa ceased.CONSIDERATION OF CLAIMS AND EVIDENCE The issues in this case are whether the applicant has a well-founded fear of persecution if he returns to China and if so, does he meet the refugee provisions of the Act? If not, does the applicant meet the protection obligations under the complementary provisions of the Act? The Tribunal has before it the Department’s file relating to the applicant including the delegate’s decision. The Tribunal also has had regard to other material available to it from a range of sources. This includes, but is not limited to the following: ·the applicant’s claims for protection in his application form dated 1 June 2018;·the applicant’s evidence at the Tribunal hearing on 12 July 2024;·Department of Foreign Affairs and Trade (DFAT) Country Information Report – People’s Republic of China, 22 December 2021;·Department of Immigration – PAM3 Refugee and Humanitarian – Refugee Law Guidelines and PAM3 Refugee and Humanitarian – Complementary Protection Guidelines;·Other relevant country information referred to below.Applicant’s claims in his written application for protection to the Department The applicant claims he will be harmed by the police in China as he witnessed a police officer commit a murder. The applicant promised him he wouldn’t tell anyone what he witnessed but the police officer is very cruel and the applicant believes he will try to kill him so no-one will find out about his crime. The police officer locked him in a room for several days without food or water, refusing to let him have visitors and threatened to kill both him and his family if he ever tells anyone. To resolve this problem and secure the safety of his elderly parents he decided to come to Australia. He cannot seek protection as it is a powerful police officer who threatened him.Applicant’s claims at the Tribunal hearing During the hearing the Tribunal discussed with the applicant his family composition, work history, residential history and visa and migration history which are outlined under the heading Background above. The Tribunal then went on to discuss the applicant’s claims and reasons he fears returning to China. The applicant said that he came to Australia in March 2018 to hide from people who were chasing him. He went to an agent in Australia who was recommended by someone else who was a tenant in the house where he rented a room when he arrived. The agent told him that he was unlikely he would be approved for a protection visa because the things that happened to him were not serious enough. The applicant said he still wanted to apply, but he did not know what claims the agent had put in his written application. The Tribunal told the applicant that in his written application he claimed to fear harm from a police officer whom he had witnessed committing a murder. The applicant said that this was not true and he assumed the agent must have created that claim. The people he actually feared in China were gang members hired by the developers who wanted to demolish his house.

Decision

Reasons for decision

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 The Tribunal affirms the decision not to grant the applicant a protection visa.B. MericourtMemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…

Ratio Decidendi

Legal Principle Established

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 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.Receiving Country The applicant claims to be a citizen of China. He provided a copy of the bio data page of his Chinese passport to the Department. The Tribunal accepts that he is a citizen of China based on the findings made by the Department. The Tribunal finds that China is the receiving country for the purpose of assessing his claims for protection under the refugee criterion and the complementary protection criterion. Third Country Protection The Tribunal finds that the applicant is outside his country of nationality. There is no evidence before the Tribunal to suggest that he has the right to enter and reside in any country other than his country of nationality.BACKGROUND The applicant is a [Age]-year-old divorced man from Shandong Province, China. His ex-wife, [Age]-year-old daughter and mother reside in China. The applicant was divorced while he was in Australia in July 2022. He speaks to his mother once or twice a month using Wechat. He has no contact with his ex-wife and daughter. He occasionally sends some money to his elderly mother. The applicant completed middle school in [Year]. In his protection application the applicant said he had never been employed. At the hearing he said that he worked in a [workplace] as [an occupation] in China. In Australia he has been working as [an occupation] in a [workplace]. The applicant entered Australia on 1 March 2018 as the holder of a visitor visa. He lodged his application for protection on the day his visitor visa ceased.CONSIDERATION OF CLAIMS AND EVIDENCE The issues in this case are whether the applicant has a well-founded fear of persecution if he returns to China and if so, does he meet the refugee provisions of the Act? If not, does the applicant meet the protection obligations under the complementary provisions of the Act?