2014646 (Refugee)

[2024] AATA 4264

2014646 (Refugee) [2024] AATA 4264 (8 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2014646

COUNTRY OF REFERENCE:                   China

MEMBER:Senior Member G.A.F. Connolly

DATE:08 October 2024

PLACE OF DECISION:  Sydney

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

Statement made on 08 October 2024 at 3:02pm

CATCHWORDS

REFUGEE – Protection Visa – applicant and family were part of a large scale demonstration and protest – claims lack substantiating details – applicant provided no evidence that was capable of being considered persuasive – applicant does not have a well-founded fear of persecution – decision under review affirmed

LEGISLATION

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

Migration Regulations 1994, 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

APPLICATION FOR REVIEW

1.This is an application for review of a decision made by a delegate of the Minister for Home Affairs (Minister's Delegate) on 29 September 2020 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).[1] The Minister's Delegate's decision was lodged with the Tribunal by the Department of Home Affair (Department). The applicant is a citizen of China, had applied for the visa on 06 September 2017.[2]

[1] Applicant's Protection Visa Decision Record [of] 29 September 2020.

[2] Applicant’s Form 866 signed 06 September 2017.

2.The applicant is a [age]-year-old male citizen of China.  He has a wife and son in China.[3]  There is also mention, however, of the applicant having a daughter, too, in China.[4]

[3] Applicant’s Form 866 signed 06 September 2017 at page 7.

[4] Applicant’s Form 866 signed 06 September 2017 at page 15.

3.On [date] June 2017, the applicant arrived in Australia from China.

4.On 06 September 2017, the applicant completed and signed his application for a protection visa, which included this evidence, and these especially graphic claims of his persecution by Chinese authorities:[5]

[5] Applicant’s Form 866 signed 06 September 2017 at pages 18 to 22.

I left China mainly because of the persecutions I had to face for
being evicted from my home. I was born in the small village of
[Village 1] located in a town called [Town 1]. My family has lived
here for generations. Three month ago, the local authorities with
the help of private developers evicted us from the land where our
home was built to make way for a new highway. The local officials
forced us to vacate the land and violently demolished our home
among other homes in pursuit of illegal economic gains leaving
us with little compensation and no legal protection.
Two months before, when we became aware of the eviction, we
were bullied and harassed to sign papers agreeing to surrender
our property in which we refused to do after knowing that
proper resettlement had not been arranged and no adequate
compensation were made to be given to us.

During this time, we were trying to seek help from the Center
of Housing Rights and Eviction ministry by filing a petition or
ShangFang, with a group of people who were also being evicted.
Most of us did not have money to hire a lawyer to seek legal
protection or resettlement rights which left us helpless. By then,
planning officials were conducting a range of cruel tactics by
interrupting the water, electricity and heat services from our
home. I was violently beaten and threatened multiple times by
"chengguan" or hired thugs which forced me to cooperate and
sign the papers to surrender the property to be demolished. This
scourge left me angry and frustrated as I was left with no choice
but to send my old parents to live with their friend and to make
my family seek refuge in the back of a truck which belonged to
the company I drove for work.

After signing the eviction, all houses on the land were
demolished and my situation quickly worsened. My family and I
were part of a large-scale demonstration to protest the evictions
held in the suburbs of [Town 1]. Hundreds of villagers were on
the streets. The situation escalated when one of the thugs started
beating one protestor. They spread us by using water cannons
and threw tear gas at us. I was beaten and detained that day. I
spent two months in detention with no valid reason held against
me during which my human rights were severely violated. I was
bullied, harassed and tortured. When I got out, I had no appetite
for life. I lost my job but most importantly my dignity. I no longer
wanted to fight I just wanted to leave.

I took this desperate measure to leave China and seek refuge
in Australia for the hope of finding a fair life for me and my
family which I left behind because I could not pay for their ticket
to join me. The sorrow of losing one's home is overwhelming
and I cannot imagine myself living a life under a communist
regime who steals from the poor to feed the rich. After I got out
of detention, I realized that I have lost dear friends and neighbors
whom I grew up with in my hometown, they were the soul of our
poor community. Some of them just disappeared while others
have been detained or sent to reeducation through labor centers.
The last time I talked to my family, my son and wife were living
in destitution with friends whom are asking them to pay rent
and food. My wife and son help them clean and cook for them to
return the favor but this help will not satisfy them for long.

A second incidence happened couple of days after. The
authorities cut all water, electricity and heat from us. This
left us emotionally fragile for two weeks. Then came the hire
thugs which started banging at everybody's doors. Some of
our neighbors started throwing rocks at them which got them
angrier. They came with sledgehammers and started bringing
one of the windows down. This got us extremely scared. It was
similar to a raid and it caught us by surprise. We feared for our
lives as we heard the thugs beat our neighbor, [name], which we have
known since we were young. I did not want anything to happen
to my family so when they came I signed the letter of eviction
and we all got out of the house. The government had given us
250 Australian dollars as compensation which was nowhere
near to what our property was worth and the house was to be
demolished the day after which was on the 12th of February 2017.

The last incidence happened when we were protesting out of
our village next the [Town 1] municipality. We left early in the
morning and we all gathered around. Some of us held signs that
demanded fair compensations, the stop of forced evictions and
violations of human rights. Around 15 minutes during the protest,
one men who was among the crowd took one of protestors sign
and tore it apart and started beating him with his baton. Children
and women were screaming and they started spraying us with
their water cannons after their trucks surrounded us. By the
end of it there were tens of us kneeling with our arms behind
our back. They cursed at us with degrading words and called us
traitors to the communist party and they took us and detained
us. I was there for two months. I experienced severe beatings the
first two days from the guards. It was overcrowded in the cells
and there was no sunlight. We were deprived of food, water and
medicine on multiple occasions. Sometimes I would wish I never
wake up. After this we were put under a labor-intensive program.
When I got out it was like a part of my soul died. I had no joy or
laughter.

5.On 24 August 2020, noting these very graphic claims of violence and persecution made by the applicant, the Department sent a letter to the applicant attaching, inter alia, a formal request for additional detail in relation to what the applicant said in his above application for a protection visa.[6]

[6] Department’s Letter, Client ID [deleted], Application ID 365604601, of 24 August 2020 at pages 3 to 4.

I have started considering the information in your application for a Protection visa.

Home dispute

In your application you claimed that you were involved in a home dispute with the authorities in China after you were evicted from your home by the local authorities in order for a highway to be built. You claim that you were provided limited compensation and completed a petition with the Centre of Housing Rights and Eviction Ministry. You also claimed that you and your family were part of a large scale demonstration and protest and as a result of your activities you were detained for two months.

However, these claims lack substantiating details such as dates and locations, and you also did not provide documents or other evidence to support these claims. To assist me to determine whether I should accept your involvement in these matters, or any punishment to you as a result took place, I require more information about these matters, including dates and locations of events and copies of any documents or other evidence in support of your claims.

Therefore, I am inviting you to provide evidence in support of these claims, particularly the following:

·copies of land documents/title deeds for the property which the dispute is about,

·copies of any offers of compensation you received,

·copies of any letters or petitions you sent to government officials about this matter,

·evidence of any interactions you had with the Chinese authorities, and

·if you have been arrested or have faced arrest over this matter, copies of any arrest warrants/charge sheets you received over this matter.

If you are unable to provide more information about your claims or copies of documents, please provide a detailed explanation of why you cannot provide them. If you are unable to provide documents, please also provide details of the efforts you made to obtain them.

Any information that you provide in response to this letter will be taken into account in the decision on your application.

This request was never answered by the applicant.[7]

[7] Applicant's Protection Visa Decision Record [of] 29 September 2020 at pages 2 to 3.

6.On 29 September 2020, the Minister’s Delegate dismissed the applicant’s case, noting that:[8]

[8] Applicant's Protection Visa Decision Record [of] 29 September 2020 at page 3.

As at the date of this assessment, the applicant has not provided additional information in relation to their claims, including the additional information specified in the s56 invitation. Nor is there any evidence that they attempted to contact the Department to provide further information about their claims or request additional time to respond to the s56 invitation.

I consider that the applicant has been given a reasonable opportunity to provide additional information and evidence to substantiate their claims.

As advised in the s56 letter, I am now proceeding with a decision based on the information before the Department.

The Minister’s Delegate went on to dismiss the applicant’s case, finding:[9]

[9] Applicant's Protection Visa Decision Record [of] 29 September 2020 at page 5.

Due to the lack of detail from the applicant regarding these claims and in light of the above country information, I am not satisfied that the applicant participated in the activities described and suffered the kinds of adverse treatment or harassment in China as claimed. On consideration of the information before me, including the above concerns regarding the applicant’s claims and their lack of a response to the letter bringing those concerns to their attention, I am not satisfied that these claims are credible and I am not satisfied that the applicant had a profile that was of adverse interest to the Chinese authorities or anyone else in China.

7.On 30 September 2020, the applicant appealed to the Tribunal but did not prosecute his appeal.

8.On 19 July 2024, the applicant wrote to the Tribunal via email seeking a decision to be made in his case on the papers and informing the Tribunal that he would not be attending any hearing.[10]

[10] Applicant’s email dated Fri 19 July 2024 at 2:26 PM.

9.In terms of evidence in this case, this applicant’s evidence has been limited to what the applicant told the Department in his application for a protection visa.  There has never been any further information. The applicant never answered the Department’s request to supply more information, nor did he provide any further material or evidence to this Tribunal in support of his claim.

10.It follows that the applicant’s case cannot be advanced beyond what failed before the Minister’s Delegate.  On my own independent review of what scarce material was filed by the applicant, I can find no fault with the decision of the Minister’s Delegate. Accordingly, the decision of the Minister’s Delegate must be affirmed.

CRITERIA FOR A PROTECTION VISA

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

12.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

13.The decision of the Minister’s Delegate must be affirmed.

14.The applicant made the gravest of claims.  However, this applicant did nothing, over the course of seven years, to put on any evidence in support of any one of his claims. 

15.Indeed, since the applicant lodged his appeal to this Tribunal in 2020, nothing was filed in this case.

16.After an exhaustive search of the files of the Department and this Tribunal, there is no evidence that could assist or inform a decision-maker in terms of evaluating the truth or falsity of the applicant’s claims.

17.In this respect, the Department’s own request in 2020 at paragraph above is an excellent guide to the fatal evidentiary problems with the applicant’s case. The applicant answered none of these claims either before the Department nor before the Tribunal. The applicant’s claims were started some seven years ago, and it is simply absurd to believe the applicant had no time to assemble – or even just begin to assemble – the evidence necessary to support his claim. It is impossible for this Tribunal to take an applicant’s claims on face value especially when there are no details and no particulars. 

18.To reiterate what I have said in other cases: where an applicant makes a claim of a fear of harm, the mere fact that a person claims this fear for a particular reason does not establish either the genuineness of the asserted fear, or that the fear is well-founded, or that it is for the reason claimed. A fear of persecution is not well-founded if it is merely assumed, or merely asserted, or if its basis is mere speculation. An assertion, however, passionately and/or repeatedly it is made, is not proof of its truth.

19.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 a fear being asserted for the reason/s claimed. Further, the Tribunal is not required to accept uncritically any, and all the allegations made by an applicant.[11]

[11] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 596, Nagalingam (1992) 38 FCR 191,

20.Although the concept of onus of proof is inappropriate to administrative inquiries and decision-making of the kind done by this Tribunal, the relevant facts of the individual case will have to be supplied by the applicant in as much detail as is necessary to enable the decision-maker to establish the relevant facts. A decision-maker is not required to make the applicant's case for them.[12] 

[12] Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155.

21.While there is no statutory burden upon an applicant to corroborate their claims with evidence in addition to themselves[13], as a matter of common sense, additional evidence from sources other than the applicant will assist the Tribunal in its decision-making.  This is especially so when one considers that the applicant has had seven years and yet he has supplied no evidence himself.

[13] Machmud v Minister for Immigration and Multicultural Affairs [2001] FCA 1041, at [16] per Hill J.

22.Indeed, in this case, the applicant did not supply any evidence, let alone any evidence in any sort of sufficient detail, to satisfy the Tribunal that he was in any way shape or form involved in any persecution, or any violence, or that he was of any adverse interest to the Chinese authorities.

23.Overall, the applicant provided no evidence that was capable of being considered persuasive.  In other words, on all of the consideration of the applicant’s case, which has been going since 2017, it turns out that there was no real case to consider.

FINDINGS

24.For the foregoing reasons, the Tribunal is not satisfied, at all, that the applicant has made out any of the statutory elements for the grant of protection.

25.I do not accept the applicant has a well-founded fear of persecution in China for any reason prescribed in the Act.

26.I do not accept that there are any substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, that there is a real risk that he will suffer significant harm.

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

28.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).

29.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).

30.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

31.The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 08 October 2024 at 3:02pm

Graham Alfred Frederick Connolly
Senior Member
Administrative Appeals Tribunal