2014604 (Refugee)

[2024] AATA 3039

2014604 (Refugee) [2024] AATA 3039 (23 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2014604

COUNTRY OF REFERENCE:                   China

MEMBER:Mr S Norman

DATE:23 July 2024

PLACE OF DECISION:  Sydney

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

Statement made on 23 July 2024 at 11:50am

CATCHWORDS

REFUGEE – protection visa – China – victim of traffic accident – corruption – protests – detention – physical assault – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 426, 499
Migration Regulations 1994, Schedule 2

CASES

Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 144 ALR 567
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 September 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 30 January 2018. The Department delegate’s decision was lodged with the Tribunal.

   CRITERIA FOR A PROTECTION VISA

2. 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.

   Mandatory considerations

3. 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

5. By hearing invitation letter dated 3 July 2024 (dispatched by email), the Tribunal advised the applicant it had considered all the material before it relating to his 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 23 July 2024. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice.

6. The Tribunal also sent two SMS hearing reminder texts to the applicant shortly prior to the hearing (both SMS texts were recorded as having failed to be delivered).

7. Regarding the hearing, the applicant did not respond to the Tribunal hearing invitation letter, as he was requested to do. Neither did he attend the Tribunal at the day and time of the scheduled hearing.

8. In the circumstances, and after considering the evidence, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

   The applicant’s claims:

9. As recorded in the delegate’s decision, the applicant’s Protection visa (PV) claims included:

   The applicant and a friend were involved in a car accident when the car they were traveling in was hit by a drunk driver, nearly killing the applicant’s friend and leaving him in a vegetative state. The police refused to investigate the accident or the at-fault driver, letting him go free, due to police corruption as the driver was [Mr A], the provincial representative of the National People’s Congress and a successful businessman. The applicant protested this to the [City 1] Government [in] October 2017, who refused to investigate and shared the applicant’s complaint with the police, against whom the complaint was made, resulting in the applicant being detained and physically assaulted by the police. While in detention, the police raided the applicant’s home, taking his friend’s medical evidence. The applicant fled to Australia in fear, and fears that he will be murdered by the police, should he return to China.

   [Deleted].

   Assessing the applicant’s claims:

10. The applicant lodged a photocopy of the bio-data page of his Chinese passport with the Department. Based on this evidence, the Tribunal accepts the applicant is a citizen of China, and that China is his receiving country. However, the mere fact that an applicant claims to fear harm 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/s claimed. Further, the Tribunal is not required to accept uncritically any and all the allegations made by an applicant (Randhawa v MIEA (1994) 52 FCR 437, p.451).

11. That being said, the applicant did not provide sufficient detail to satisfy the Tribunal (ie) that he was involved in any relevant vehicle accident; that the police failed to investigate; that the applicant subsequently lodged a complaint; nor that the applicant was in any way harmed, harassed or questioned for this or any other reason in China.

12. It remains for the applicant to satisfy the Tribunal that all of the statutory elements for the grant of protection are made out (MIEA v Guo & Anor (1997) 144 ALR 567 p.596); and although the concept of the onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 p.288), the relevant facts of the individual case will have to be supplied by the applicant themselves, in as much detail as is necessary to enable the decision maker to establish the facts. A decision maker is not required to make the applicant’s case for him or her (Prasad v MIEA (1985) 6 FCR 155 pp.169-70; Luu & Anor v Renevier (1989) 91 ALR 39 p.45). The Tribunal acknowledges this guidance had been developed for the purposes of considering refugee protection claims, however, I am satisfied it is materially applicable to the assessment of complementary protection claims.

13. Importantly, and in relation to protection claims, it is also ‘the responsibility of the non-citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim’.[1]

    [1] See s.5AAA of the Act, ‘Non-citizen’s responsibility in relation to protection claims’.

14. That said, based on the claims he has provided, the Tribunal is not satisfied all the statutory elements for the grant of protection are made out. Accordingly, I do not accept the applicant has a well-founded fear of persecution for a reason prescribed in the Act; 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.

15. Neither is there any issue, squarely raised by the evidence though not articulated, that has satisfied the Tribunal the applicant has a real chance of suffering serious or significant harm in China.  

    Finding:

16. For the reasons given above, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a). Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal considered the alternative criterion in s.36(2)(aa). However, and for the same reasons, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

17. There is no suggestion 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

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

    Mr S Norman
    Member