2016820 (Refugee)

[2024] AATA 3297

2016820 (Refugee) [2024] AATA 3297 (15 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2016820

COUNTRY OF REFERENCE:                   China

MEMBER:Kathleen Timbs

DATE:15 August 2024

PLACE OF DECISION:  Sydney

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

Statement made on 15 August 2024 at 9:56am

CATCHWORDS
REFUGEE – protection visa – China – fear of harm from underground bank – parents and applicant threatened and beaten, and belongings smashed – collusion by police – references to events in another country, but no information provided about citizenship or residence there – consent to decision without hearing – responsibility to provide evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J, 36(2)(a), (aa), 65

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 dependants.

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 (the Act).

2. [In] November 2018, the applicant arrived in Australia from China.

3. On 17 March 2019, the applicant applied for the visa.

4. On 16 November 2020, the delegate refused to grant the visa.

5. On 18 November 2020, the applicant applied for review of that decision by the Tribunal.

6. On 24 July 2024, the Tribunal sent the applicant an invitation to a hearing on 13 August 2024 to present evidence and make arguments in support of her application for review. The hearing invitation stated:

   We have considered the material before us but we are unable to make a favourable decision on this information alone.

7. On 12 August 2024, the applicant advised the Tribunal that she would not attend the hearing and consents to the Tribunal making a decision on the information it has available.

   RELEVANT LAW – CRITERIA FOR A PROTECTION VISA

8. The relevant criteria for a protection visa are in s 36 of the Act.

9. To be granted the visa, an applicant must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, they must be either a person in respect of whom Australia has protection obligations because they meet the refugee criterion or complementary protection criterion, or they must be a family member of a person who meets one of those criteria and that person holds a protection visa.

10. The Tribunal must affirm the decision under review if it is not satisfied that the applicant meets one of these criteria.

    Refugee criterion

11. The criterion in s 36(2)(a) of the Act 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.

12. Section 5H(1) of the Act provides that a person is a refugee if he or she is outside their country of nationality and is unable or unwilling to avail themselves of the protection of that country because of a well-founded fear of persecution. Under s 5J of the Act:

    ·a person has a ‘well-founded fear of persecution’ if:

    -    the person fears persecution;

    -    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

    -    they could take reasonable steps to modify their behaviour, other than certain types of modification.

    Complementary protection criterion

13. A person who is not a refugee may satisfy the criterion for a protection visa in s 36(2)(aa) if 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.

    EVIDENCE AND MATERIAL CONSIDERED BY THE TRIBUNAL

14. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal considered 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. The relevant assessment is the DFAT Country Information Report People’s Republic of China published on 22 December 2021.

15. The Tribunal also considered relevant documents provided by the Department, including the applicant’s visa application and the delegate’s reasons for decision.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nationality

16. The applicant provided a Chinese passport to the Department. It examined it and found that it was genuine. On that basis, the Tribunal accepts that the applicant is a citizen of China.

17. The applicant’s visa application refers to events in Malaysia and the Tribunal notes that the delegate requested evidence of residence in Malaysia and that she had citizenship or another right to reside in Malaysia. The applicant did not provide further evidence and the Tribunal has no evidence to suggest the applicant has a right to reside in Malaysia or any other country, apart from China. It is satisfied China, rather than Malaysia, is the receiving country for ss 36 and 5J.

    Protection claims

18. In her visa application made in 2019, the applicant claimed that:

    ·an ‘underground bank’ sent people to her home to collect money and they forced her parents to repay money, threatened her and her parents, smashed all the goods in the home and that they beat her and her parents.

    ·She wrote a public letter after that happened.

    ·She called the police but, rather than protect her, the underground bank colluded with the police and the police were sent to catch her.

    ·She was ‘so scared (she) escape(d) Malaysia and fled to Australia’ and, if she returned to Malaysia, she ‘will be persecuted and (might) even…die’.

19. The applicant did not make any further claims or provide further detail of her claims to the Department or the Tribunal.

    Assessment

20. The mere fact that a person claims fear of persecution for a particular reason does not establish either that they genuinely hold that fear, that it is ‘well-founded’ or that it is for the reasons claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It is for the applicant to provide evidence that satisfies the Tribunal that all the statutory elements for one or more of the criteria for a protection visa are made out.

21. Because the applicant’s visa application refers to a fear of returning to Malaysia, there is nothing in the applicant’s written evidence upon which the Tribunal could come to relevant conclusions that the applicant would suffer any type of harm if she returned to China. It has no evidence about the nature of any harm the applicant fears, whether there is a real chance or risk of harm and whether any harm she fears amounts to serious or significant harm.

22. In that case, the Tribunal is not satisfied there is a real chance the applicant would experience serious harm if she returned to China. It follows the Tribunal  is not satisfied she has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. She is therefore not a person in respect of whom Australia has protection obligations because she is a refugee and she does not meet the refugee criterion in s 36(2)(a).

23. For the same reasons, the Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that the applicant would suffer significant harm. It follows she does not meet the complementary protection criterion in s 36(2)(aa).

    CONCLUSION

24. The Tribunal has found that the applicant does not satisfy the refugee or complementary protection criteria in s 36(2)(a) and (aa). It has no evidence that she is a member of the same family unit as a person who satisfies the refugee or complementary protection criteria and she therefore does not satisfy the criteria in s 36(2)(b) or (c). The Tribunal will therefore affirm the decision under review.

    DECISION

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

    Kathleen Timbs
    Member