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

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…

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.

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Details

Case: [2024] AATA 4264
Decision Date: 08 October 2024

CaseChat Overview and Summary

The applicant, seeking a protection visa, and their family were involved in a large-scale demonstration and protest. The delegate of the Minister for Immigration and Border Protection refused the application, a decision which the applicant sought to have reviewed by the Administrative Appeals Tribunal.

The Tribunal was required to determine whether the applicant had a well-founded fear of persecution for a reason specified in section 5 of the *Migration Act 1958* (Cth). This involved assessing the credibility and substance of the applicant's claims regarding their participation in the protest and the potential consequences thereof.

Senior Member Connolly found that the applicant's claims lacked substantiating details and that no evidence was provided that could be considered persuasive. The Tribunal concluded that the applicant had not established a well-founded fear of persecution. Consequently, the decision under review was affirmed.

Orders