2015422 (Refugee) - [2024] ARTA 810

2015422 (REFUGEE) [2024] ARTA 810 (10 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2015422
Tribunal:General Member C Dutkowski
Date:10 December 2024

Place:Sydney
Decision:The Tribunal affirms the decision under review.

CATCHWORDS
REFUGEE – protection visa – China – fear of harm from local official’s son – contentions about workplace and money – harassed, beaten and threatened – vague, inconsistent and unconvincing claims and evidence – identity of official’s son and circumstances of interactions – new claim on ground of religion – underground Christian – activities in home country and Australia – reported to village committee by neighbours – started attending current church at time of invitation to tribunal hearing – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 378
Migration Regulations 1994 (Cth), Schedule 2

CASE
Wang v MIMA (2000) 105 FCR 548
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 October 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 national of China, applied for the visa on 5 December 2017. The delegate refused to grant the visa on the basis that the applicant did not meet the refugee or complementary protection criteria in the Act. In particular, the delegate did not accept the applicant’s claims to have reported corrupt conduct and suffered harm and threats as a result.
The applicant appeared before the Tribunal on 27 November 2024 and 4 December 2024. The Tribunal hearings were conducted with the assistance of an interpreter in the Mandarin and English languages.
BACKGROUND
The applicant is a [Age]-year-old man from Muchuan, Sichuan Province. His mother, father, ex-wife, son and younger brother reside in the applicant’s hometown in China. His older sister and brother live in a nearby village in the same town. The applicant’s siblings are all farmers.
After the applicant completed high school in [Year], he worked in a factory in [Location] for a couple of years, before moving to Hunan Province where he learned to make [product] from a friend and worked in his [workplace 1]. In 2016, he moved to Guangxi and opened his own [workplace 1].
The applicant entered Australia [in] September 2017 as the holder of a visitor visa. He applied for a protection visa on 5 December 2017.
The applicant initially worked some casual [job task] jobs in Melbourne, then moved to work on a [workplace 2] near the Blue Mountains. Three years ago, he moved to Sydney, where he has been doing [work sector] work.
Evidence before the Department
In his protection visa application,…

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 2015422 (Refugee)

Details

AGLC: 2015422 (Refugee) [2024] ARTA 810
Case: [2024] ARTA 810
Decision Date: 10 December 2024

CaseChat Overview and Summary

The applicant, a [Age]-year-old man from Muchuan, Sichuan Province, China, applied for a protection visa, claiming fear of harm from a local official’s son. The Tribunal examined the applicant's claims of harassment, beatings, and threats, which he attributed to a dispute involving a business he owned. The applicant also introduced a new claim based on his religious affiliation as an underground Christian. The Tribunal needed to determine if the applicant met the criteria for a protection visa under the Migration Act 1958 (Cth).

The key issues were whether the applicant had a well-founded fear of persecution based on the allegations against the local official’s son and his religious activities. The Tribunal assessed the consistency and credibility of the applicant's claims and evidence, including the identity of the official's son, the circumstances of their interactions, and the reported threats. Additionally, the Tribunal evaluated the new claim regarding his Christian activities and whether this constituted a valid basis for a protection visa.

The Tribunal found the applicant's claims vague, inconsistent, and unconvincing. The evidence provided did not substantiate the allegations of persecution by the local official’s son. The applicant's new claim regarding his Christian activities also lacked supporting evidence. The Tribunal concluded that the applicant did not meet the criteria for a protection visa under section 36(2) of the Migration Act. The Tribunal affirmed the delegate's decision to refuse the visa.

The Tribunal's final orders affirmed the decision to refuse the grant of a protection visa to the applicant.

Orders

Orders of the court

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Background

Background to the litigation

The applicant appeared before the Tribunal on 27 November 2024 and 4 December 2024. The Tribunal hearings were conducted with the assistance of an interpreter in the Mandarin and English languages.BACKGROUND The applicant is a [Age]-year-old man from Muchuan, Sichuan Province. His mother, father, ex-wife, son and younger brother reside in the applicant’s hometown in China. His older sister and brother live in a nearby village in the same town. The applicant’s siblings are all farmers. After the applicant completed high school in [Year], he worked in a factory in [Location] for a couple of years, before moving to Hunan Province where he learned to make [product] from a friend and worked in his [workplace 1]. In 2016, he moved to Guangxi and opened his own [workplace 1]. The applicant entered Australia [in] September 2017 as the holder of a visitor visa. He applied for a protection visa on 5 December 2017. The applicant initially worked some casual [job task] jobs in Melbourne, then moved to work on a [workplace 2] near the Blue Mountains. Three years ago, he moved to Sydney, where he has been doing [work sector] work.Evidence before the Department In his protection visa application, the applicant stated that he left China because he offended the high official’s son and the high official’s son wants to kill him. He claimed the high official’s son found someone to kill him and that he tried to relocate to another part of China but they still found him. He said the authorities would not protect him as they use money to buy people to do things. On 1 September 2020, the delegate invited the applicant to provide additional information and supporting documents relating to his claims, such as details about the person he offended and how he offended them, details about the threats of harm and copies of any letters sent to officials about the matter. In a response dated 9 September 2020, the applicant stated that he applied for protection because from 2016 to May 2017, he cooperated with [Mr A], the godson of Director [Mr B] of the [Public office] in Guangxi Province. The money earned was used by the godson to open an underground casino. The applicant was angry and reported him. Before the godson was arrested, he found someone to beat the applicant and threatened to take his life after being released from prison. The delegate refused to grant the visa on 15 October 2020.Evidence before the Tribunal The applicant applied for review of the decision on 16 October 2020. On 26 November 2021, the applicant was invited to a hearing by video-conference on 13 December 2021. On 6 December 2021, this hearing was rescheduled for an in-person hearing in Melbourne on 14 December 2021 because the applicant indicated he did not have the appropriate technology to participate by video-conference. On 9 December 2021, the applicant requested the hearing be postponed as he had moved from Victoria to regional NSW. The Tribunal (then constituted) agreed to postpone the hearing. The matter was transferred to Sydney and reconstituted to this Tribunal in October 2024.

Evidence

Evidence Before The Court

During the resumed hearing, the applicant raised new claims that he had been a Christian for a long time, and that he had recently joined the Church of Almighty God. The applicant also indicated in oral evidence that his claim to have offended a high official’s son was related to [workplace 1] that he owned. In essence, the applicant claimed that the high official’s son had sought to be a shareholder in the [workplace 1] and had also sought to borrow money from the applicant to fund his gambling addiction. The applicant refused and was subject to retaliation from the high official’s son and the high official himself, which culminated in the applicant’s [workplace 1] closing four months after it opened and the applicant fleeing and hiding.CONSIDERATION OF CLAIMS AND EVIDENCECriteria for 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 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. 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). 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-LA, which are extracted in the attachment to this decision. 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

Decision

Reasons for decision

Accordingly, the applicant does not satisfy the criterion in s 36(2).DECISION The Tribunal affirms the decision under review.ATTACHMENT - 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

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