2015665 (Refugee)

[2024] AATA 4081

2015665 (Refugee) [2024] AATA 4081 (24 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2015665

COUNTRY OF REFERENCE:                   China

MEMBER:Genevieve Hamilton

DATE:24 July 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 24 July 2024 at 2:47pm

CATCHWORDS

REFUGEE – Protection Visa – China – declined the hearing invitation – petition against unfair demolition – does not accept that the applicant faces a real chance of serious harm – religion – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES

MIAC v SZQRB [2013] FCAFC 33

Chan Yee Kin v MIEA (1989) 169 CLR 379

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 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 29 January 2018. The delegate refused to grant the visa on 9 October 2020.

3. The applicant was invited to a hearing of the Tribunal in his matter but declined the invitation and consented to a decision on the papers. 

   CRITERIA FOR A PROTECTION VISA

4. Under section 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the criteria for the visa prescribed in the Act are met.

5. The criteria for a protection visa are relevantly set out in s 36 of the Act.  An applicant must meet one of the alternative criteria in s 36(2). Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (s 36(2)(a)), or on ‘complementary protection’ grounds (s 36(2)(aa)), or be a member of the same family unit as such a person. 

6. Under s 36(3) Australia does not have protection obligations to an applicant who has not taken all possible steps to avail themselves of a right to enter and reside in a third country.

   Refugee

7. Refugee is defined in the Act.  A person is a refugee if they are outside the country of their nationality (of if they have no nationality, their country of former habitual residence) 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).  

8. 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.

9. The criterion in s 5J(1) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, but also imposes an objective standard, that there be a real chance the person would be persecuted.  A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility: Chan Yee Kin v MIEA (1989) 169 CLR 379.

10. The persecution must involve serious harm such as a threat to the person’s life or liberty or significant physical harassment or ill treatment, significant economic hardship that threatens their capacity to subsist, or denial of access to basic services or capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (ss 5J(4) and (5)).

11. A person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country (ss 5J(2) and 5LA).  A person does not have a well-founded fear of persecutionif the person could take reasonable steps to modify their behaviour to avoid persecution (s 5J(3), which also gives examples of types of modifications that are not required, such as concealing one’s religion, political opinion, race or sexual orientation). 

12. In determining whether the person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless they satisfy the Minister that they engaged in the conduct for a reason other than to strengthen their claim to be a refugee (s 5J(6)).

    Complementary Protection

13. If a person is found not to meet the refugee criterion, they may still be a person to whom Australia has protection obligations if there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm.  S 36(2A) defines significant harm as arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment.  “Real risk” has the same meaning as “real chance”: MIAC v SZQRB [2013] FCAFC 33.

14. Under s 36(2B) Australia does not have complementary protection obligations where:

    ·it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that they will suffer significant harm;

    ·the applicant could obtain protection from an authority of the country, such that there would not be a real risk that the non-citizen will suffer significant harm; or

    ·the risk is one faced by the population of the country generally and not by the applicant personally.

    Mandatory considerations

15. 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.

    CLAIMS AND EVIDENCE

16. In his protection application the applicant said he was born in China in [year], is a Chinese citizen, and travels on a Chinese passport.  His wife was also born in China [year].  They were based in Xinxiang, Henan province.  He has one son born in [year], and is in contact with them both on the phone.  He worked as a [occupation] for a [company] from [year] when he finished school, until September 2017.  He left China legally, arriving in Australia on [date] November 2017. 

17. The applicant said he made a petition against unfair demolition and was persecuted by corrupt officials.  He was well regarded in his neighbourhood.  A developer announced a renovation plan in the area and he would have to move to another place.  But the compensation offered was much less than the market value so he refused it.  More than 50 families were in the same situation.  He led a petition campaign.  He submitted the complaint to the relevant Xinxiang Bureau.  He asked for an investigation, and publication of the qualifications and background of the developer.  But high officials supported the developer.  He was illegally arrested.  On 5 March 2017 the police came to the house and confiscated his notebook and other personal belongings.  They wanted the names of the other petitioners.  The applicant refused to blame others.  His already sick wife was affected by his detention.  The police tried to stop her from visiting him.  On 12 March she paid a fine of 2000 yuan and he was provisionally released.  The police continued to come and harass him and threatened him with being gaoled at any time.  Petitioners were caught, and the demolition, which had been paused, proceeded.  He and his wife live in fear. 

18. The applicant submitted a copy of the Delegate’s decision with his review application.  It is noted in the decision that on 29 July 2020 the applicant was sent a letter inviting them under s56 of the Act to provide additional information.  The applicant did not respond to the letter. 

    FINDINGS AND REASONS

19. Based on the information in his application, the Tribunal finds that the applicant’s country of nationality is China.  

20. The applicant claimed, in essence, to be in conflict with the Chinese authorities and therefore it is to be assessed whether he faces a real chance of serious harm due to his actual or imputed political opinion.  He did not make any other claims. 

21. The Tribunal does not accept that the applicant was a petitioner against a demolition plan.  There is a want of supporting detail and evidence that would readily accompany such a claim: his property ownership, the plan itself, the petition, the signatories to the petition, the identity of the developers, the amount of compensation offered/received versus the assessed market value, and what happened to his property in the end. 

22. As the tribunal has not accepted that the applicant was a petitioner against a demolition plan it does not accept that he was detained, questioned or fined, and subsequently harassed by the police.  It does not accept that his property was demolished.  It does not accept that he is at risk of such treatment in the foreseeable future. 

23. In summary, the Tribunal does not accept that the applicant faces a real chance of serious harm as described in ss 5J(4) and (5) due to his actual or imputed political opinion or for any of the other reasons specified in s 5J(1). The applicant therefore does not have a well-founded fear of persecution as required by s.5J(1).  The Tribunal finds that the applicant is not a refugee as defined in s.5H(1). 

24. Regarding complementary protection, the Tribunal has not accepted the factual basis of the applicant’s claims, and for the same reasons the Tribunal does not accept that there are substantial grounds to believe that there is a real risk that he will suffer significant harm as defined in s 36(2A). 

    CONCLUSION

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

26. 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.

27. Accordingly, the applicant does not satisfy the criterion in s 36(2).

    DECISION

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

    Genevieve Hamilton
    Member