2013671 (Refugee)

[2024] AATA 3686

2013671 (Refugee) [2024] AATA 3686 (7 August 2024)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  2013671

COUNTRY OF REFERENCE:  China

MEMBER:Raymond Smith

DATE OF DECISION:  7 August 2024

DATE CORRIGENDUM

SIGNED:8 August 2024

PLACE OF DECISION:  Perth

AMENDMENT:  The following corrections are made to the decision:

Paragraph 10 should read:

“The issues in this case are:

a. whether there is a real chance that, if the applicant returned to China, he would suffer serious harm; and if not,

b. whether, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm.”

Raymond Smith
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2013671

COUNTRY OF REFERENCE:                   China

MEMBER:Raymond Smith

DATE:7 August 2024

PLACE OF DECISION:  Perth

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

Statement made on 07 August 2024 at 12:40pm

CATCHWORDS

REFUGEE – Protection Visa – China – involved in political activities in Hong Kong – applicant declined hearing invitation – lack evidence to support the applicant’s claims – applicant does not have a well-founded fear of persecution –credibility concerns –– decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 56, 65, 426, 499

Migration Regulations 1994, Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155

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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 September 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of China, applied for the visa on 12 April 2018. The delegate refused to grant the visa on the following bases:

   a.    The applicant was not a person in respect of whom Australia had protection obligations as outlined in s 36(2)(a) and s 36(2)(aa).

   b.    The applicant was not a member of the same family unit as a non-citizen in respect of whom the Minister was satisfied Australia had protection obligations and who held a protection visa of the same class as that applied for by the applicant, pursuant to s 36(2)(b) and s 36(2)(c) of the Act.

3. The applicant declined an invitation to appear before the Tribunal to give evidence and present arguments.

   CRITERIA FOR A PROTECTION VISA

4. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). 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.

5. 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.

6. 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).

7. 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–5LA, which are extracted in the attachment to this decision.

8. 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

9. In accordance with Ministerial Direction No.84, made under s 499 of the Act, I have taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issues in this case are:

    a.    whether there is a real chance that, if the applicant returned to Malaysia, he would suffer serious harm; and if not,

    b.    whether, 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.

11. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    The applicant’s claims

    The applicant’s protection visa application

12. In his protection visa application, the applicant indicated that he had been born in Henan City, Henan Province, China in [year], and had never married. The applicant indicated that he was a Chinese citizen, that his ethnicity was ‘Han Chinese’ and his religion was Buddhism. The applicant indicated that he was making his own claims for protection and that he was seeking protection from, and could not return to, China.

13. The applicant’s claims for protection can be summarised as follows:

    a.    The applicant joined the ‘occupy central with peace and love assembly’ in Hong Kong in 2011.

    b.    The applicant was caught by local police and put in jail with no chance to explain.

    c.     The local authorities punished and punched the applicant.

    d.    The applicant tried to move to another town but the public security system had records and tracked him down.

    e.    The applicant feared the authorities would catch him, punch him and put him in jail if he returned to China.

14. The applicant indicated that he had not received the assistance of an interpreter or anyone else to complete his application. The applicant provided copies of his passport and his national identity card to the Department, but no other evidence. The Department subsequently invited the applicant to provide further details and evidence about his claims pursuant to s 56 of the Act. The applicant did not respond to the invitation. He was not interviewed by the Department in relation to his application.

    The delegate’s decision

15. The delegate refused the applicant’s application for a protection visa on 4 September 2020.

16. The delegate considered the then most recent DFAT country information assessment which indicated that the Chinese Communist Party (CCP) and local authorities did not tolerate organised opposition and that those who raised sensitive topics may be subjected to surveillance. The delegate also considered the following:

    a.    The lack of detail in the applicant’s claims.

    b.    The lack evidence to support the applicant’s claims.

    c.     The applicant’s lack of a response to the request for more information.

    d.    The applicant’s ability to obtain a Chinese passport and depart the country lawfully without any apparent problem despite his protection claims, which would have made him of adverse interest to the Chinese authorities.

17. The delegate was not satisfied that the applicant participated in the activities or suffered the kinds of adverse treatment or harassment in China he had claimed, or that the applicant had a profile that would be of adverse interest to the Chinese authorities or anyone else if he returned to China in the foreseeable future. Therefore, the delegate was not satisfied that the applicant had a well-founded fear of persecution in China for any of the reasons in s 5J(1)(a) and was satisfied that the applicant was not a person in respect of whom Australia had protection obligations as provided for in s 36(2)(a) of the Act.

18. The delegate was also not satisfied that the applicant was person in respect of whom Australia had protection obligations as provided for in s 36(2)(aa) of the Act.

    Review application

19. The applicant lodged his application for review on 7 September 2020. He provided a copy of the delegate’s decision and notification letter to the Tribunal. He did not provide any other material to the Tribunal in support of the application for review. There is no record on the Tribunal file of the applicant being represented in relation to his application for review.

20. On 31 May 2023, the Tribunal sent the applicant a pre-hearing information form and asked the applicant to complete and return the form within 7 days. The applicant did not respond to the Tribunal’s request.

21. On 6 February 2024, the Tribunal invited the applicant to attend a hearing on 28 February 2024 in Melbourne and asked the applicant to respond within 7 days. On 16 February 2024, the applicant responded, asking for the hearing to be heard remotely by telephone because he was now living in Perth. On 23 February 2024, the Tribunal wrote to the applicant asking him whether he would be able to participate in a hearing remotely by video. On 25 February 2024, the applicant responded, saying he would not be able to attend by video and asking again for a telephone hearing.

22. On 17 May 2024, the Tribunal invited the applicant to attend a hearing on 19 June 2024 in Perth. The applicant did not respond to the invitation within 7 days and on 31 May 2024, the Tribunal wrote again to the applicant inviting the applicant to respond. On 11 June 2024, the applicant replied, indicating that he would not participate in the hearing and that he consented to the Tribunal making a decision on the papers.

23. On 12 June 2024, the Tribunal wrote to the applicant, noting that the Tribunal had not been able to make a decision favourable to the applicant on the material before it and inviting the applicant to add to or update his claims for protection, and to provide evidence or submissions supporting his claims. On 21 June 2024, the applicant replied with a letter containing claims and submissions. Apart from the applicant’s claim that he had been persecuted for his political views, the letter did not provide any further details or evidence about the harm the applicant claimed to have suffered in China, or about the harm he expected to experience if he returned to China. The applicant referred to the National Security Ordnance, passed by the Hong Kong Legislative Council on 19 March 2024, as ‘completely depriving the city of its remaining fundamental freedoms’ and as a body which ‘imposes heavy penalties on peaceful speech and civil society initiatives, expands police power, and weakens due process rights’, but did not explain how this related to the applicant’s claims.

    Country information

24. I have considered the most recent DFAT Country Information Report for China dated 22 December 2021,[1] particularly in regard to persecution on the grounds of political opinion and exit and entry procedures.

    [1] Department of Foreign Affairs and Trade, DFAT Country Information Report: China, 22 December 2021.

25. The applicant’s passport indicates that the applicant was born in Henan Province in [year] and that his passport was issued in Henan in 2012, after the date he claims to have been involved in his political activities in Hong Kong. In his application for a protection visa, the applicant claimed to have lived at an address in Jiaozuo City, Henan Province from his birth [until] 12 April 2018, 2 days after his official movement record indicates that he arrived in Australia. The movement record also records that the applicant arrived in Australia on a flight originating in Shenzhen. The applicant’s protection visa application indicates he left China from Beijing on [date] March 2018 and that he left China legally using his Chinese passport.

26. I note that the applicant claimed to have been involved in the ‘occupy central with peace and love assembly’ in Hong Kong in 2011. In fact, this movement occurred in 2014.[2]

    [2] Time, 29 September 2014, 20190812153214.

    Reasons and findings

27. 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).

28. The applicant has provided insufficient information regarding his claims for protection, namely his fear that he will be persecuted by the Chinese authorities because of his participation in the ‘occupy central with peace and love assembly’. There is not sufficient detail in the applicant’s written evidence regarding the nature, extent and level of his involvement in the political activity or his subsequent treatment by authorities. There is no explanation of how the applicant, who claims to have lived his whole life in Henan, came to be in Hong Kong, or how the applicant managed to obtain a passport and leave China lawfully if he was a person subject to persecution by the authorities.

29. The evidence presented by the applicant to the Department and the Tribunal is not sufficiently detailed to enable me to be satisfied that he faces a real chance of persecution in China or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm. Given this lack of information, it is difficult to know what significance can be attached to the applicant’s assertions.

30. I am not satisfied, on the evidence before me, that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. Nor am I satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm.

31. For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

32. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa). I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

33. 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 any of the criteria in s 36(2).

    DECISION

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

    Raymond Smith
    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.

    …