2015697 (Refugee)

[2024] AATA 3452

2015697 (Refugee) [2024] AATA 3452 (29 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2015697

COUNTRY OF REFERENCE:                   China

MEMBER:Kylie Allen

DATE:29 August 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 29 August 2024 at 11:45am

CATCHWORDS
REFUGEE – protection visa – China – decision on the papers – illegal fund raising – money lost – petitioning – insufficient information before the Tribunal – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 56, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155

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 on 22 October 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants, who claim to be citizens of China, applied for the visas on 18 January 2018. The delegate refused to grant the visas on the basis that the applicants were not owed protection.

3. The applicants were invited to appear before the Tribunal to give evidence and present arguments about their claims. On 28 August 2024, the applicants advised the Tribunal that they would not participate in a hearing and asked the Tribunal to make a decision based on the material before it.

   INFORMATION BEFORE THE TRIBUNAL

   Mandatory considerations

4. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

5. The Tribunal has also taken into account material provided by the applicant to the Department and the Tribunal as well as material provided by the Department to the Tribunal. The key information is summarised below.

   Protection visa application

6. On 18 January 2018, the applicants lodged a protection visa application with the Department. Their claims include the following:

   ·     They are husband and wife from China. The wife relies on the husband’s claims for protection and does not make claims on her own behalf.

   ·     He (the husband or main applicant) claims that he invested his money in a large company in his home town.

   ·     The company told him they were investing in financial products and that the rate of return was 20-30 percent.

   ·     In 2016, the company was found to have been involved in illegal fund raising.

   ·     He went the office and found that it was closed and his money was gone.

   ·     He went to the local government office and an officer told him that the matter would be investigated, but he claims that no action was taken.

   ·     He was told that government officers were involved in the case and that if he continued to appeal, his life would be in danger.

   ·     He cannot return to China because he will be harmed by government officers

7. The Department states that it advised the applicant on the protection visa application form that he should provide all of his claims for protection and all documentation or other evidence to support his claims. The form also informed the applicant that a decision could be made on the information provided in his application.

8. On 1 February 2018, the Department sent the applicant an acknowledgement of valid application letter which advised him that he could provide additional information relating to his claims. The letter also informed the applicant that a decision on his application could be made without another opportunity for him to present any further information.

9. On 12 August 2020, the applicant was sent a further letter by the Department inviting him, under s 56 of the Act to provide additional information about some of the claims in his application and to provide clarification on particular points. The s 56 invitation advised the applicant that his statement of claims lacked substantiating details such as dates and locations, and supporting documentation in regard to his claims, and that no further details or documentary evidence to support his claims had been provided. This letter also invited the applicant to provide more information to the delegate about specific matters. This letter informed the applicant that if he did not respond to the invitation within the prescribed timeframe, the Department could decide the application with the information it had at that time without asking him again. The letter also advised the applicant that, if they could not respond to the invitation on time, they should contact the Department explaining the reason, and requesting more time to provide the information.

10. The Department confirmed that the applicant did not provide the Department with any additional information in relation to his claims, including the additional information specified in the s 56 invitation, and he did not seek additional time to provide more information.

    Delegate’s decision and lodgement with Tribunal

11. On 22 October 2020, a delegate of the Minister made a decision to refuse the grant of a protection visas on the basis that the applicants were not owed protection.

12. On 22 October 2020, the applicants requested a review of the decision with the Tribunal. They did not make any further submissions and they declined to attend a hearing to give evidence about their claims.

    REFUGEE ASSESSMENT

13. Section 5H(1) of the Act provides that a person is a refugee if, in a case where the person has a nationality, he or she 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 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.

14. Under s.5J of the Act ‘well-founded fear of persecution’ involves a number of components  which include that:

    ·     the person fears persecution and there is a real chance that the person would be persecuted

    ·     the real chance of persecution relates to all areas of the receiving country

    ·     the persecution involves serious harm and systematic and discriminatory conduct

    ·     the essential and significant reason (or reasons) for the persecution is race, religion, nationality, membership of a particular social group or political opinion

    ·     the person does not have a well-founded fear of persecution if effective protection measures are available to the person, and

    ·     the person does not have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour, other than certain types of modification.

15. The issue in this case is whether the applicants are owed protection as refugees or persons entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

16. The applicants have not provided sufficient information regarding their claims for protection to be satisfied that the statutory elements are met. Based on the limited information before the Tribunal, the Tribunal is unable to be satisfied that the main applicant invested his money in a company or that the company was found to have been involved in illegal fund raising and his money was lost; or that he was involved in petitioning; or that he faces any chance of harm on that basis; or that he is of any interest to the authorities in China; or that he will face harm on his return to China. Further, it is not clear from the information before the Tribunal what the applicants would do on their return to China.

17. Given the limited information in the protection visa application, the applicants were advised by the Tribunal that it had considered the information before it but was unable to make a favourable decision on this information alone. Consequently, they were invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in their case. The applicants declined to participate in a hearing and requested a decision on the material already before the Tribunal.

18. The applicants have not satisfied the Tribunal that all of the statutory elements to be granted protection are met. The applicants have declined the opportunity to provide more information about their claims. A decision-maker is not required to make an applicant's case for them. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

19. The evidence presented by the applicants to the Department is not sufficiently detailed to enable the Tribunal to be satisfied that they face a real chance of persecution in China. Given this lack of information, without more detail, it is difficult to know what significance can be attached to the assertions made in the protection visa application.

20. Having regard to the limited information before it and the applicants’ refusal to provide more details, the Tribunal is not satisfied, on the evidence before it, that the applicants have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Overall, the Tribunal does not accept that the applicants would face a real chance of persecution arising from their claims.

    Refugee: conclusion

21. The applicants do not meet the requirements of the definition of refugee in s.5H(1). The applicants do not meet s.36(2)(a)

    COMPLEMENTARY PROTECTION ASSESSMENT

22. A criterion for a protection visa is that the applicant is a non-citizen in Australia (other than a person who is a refugee) in respect of whom the Minister is satisfied Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm.

23. Under s.36(2A), a person will suffer ‘significant harm’ if:

    ·     the person will be arbitrarily deprived of his or her life

    ·     the death penalty will be carried out on the person

    ·     the person will be subjected to torture

    ·     the person will be subjected to cruel or inhuman treatment or punishment, or

    ·     the person will be subjected to degrading treatment or punishment.

24. The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are in turn defined in s.5(1) of the Act.

25. For the reasons given above, the Tribunal is not satisfied that the applicants are persons respect of whom Australia has protection obligations under s 36(2)(a). Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). As ‘real chance’ and ‘real risk’ have been found to meet the same standard, if follows that the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the persons being removed from Australia to a receiving country, there is a real risk that the persons will suffer significant harm for any of the claimed reasons or for any other reason.

    Complementary protection: conclusion

26. The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).

27. There is no suggestion that either of the applicants satisfy 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 applicants do not satisfy the criterion in s 36(2).

    DECISION

28. The Tribunal affirms the decision not to grant the applicants protection visas.

    Kylie Allen
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (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 family

    For 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 family

    For 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.

    …