2018145 (Refugee)
[2021] AATA 5622
•5 November 2021
2018145 (Refugee) [2021] AATA 5622 (5 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2018145
COUNTRY OF REFERENCE: China
MEMBER:Mara Moustafine
DATE:5 November 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 05 November 2021 at 1:35pm
CATCHWORDS
REFUGEE – protection visa – China – fear of harm from suppliers of defective products for business – submitted samples for testing and stopped buying products – suppliers’ gang connections – stalking and anonymous letters – credibility – vague, inconsistent and implausible claims and evidence – no harm to applicant before departing or family since – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1)(a), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155Any 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
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 November 2020 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
Background
The applicant is a citizen of China and is [Age 1] years old. He arrived in Australia [in] July 2017 as a holder of a Visitor visa. He applied for a Protection visa on 22 September 2017.
Evidence before the Department
According to his Protection visa application form, the applicant was born in [Year 1] in Taian city, Shandong province, China, where he lived until he left for Australia in July 2017. He identified himself as Han Chinese, of no religion and able to read, write and speak Mandarin. He completed middle school in July [Year 2], worked full time in a factory in Taian from September [Year 2] to October 2016 and was self-employed as director of a [business] named [Business name] from October 2016 to May 2017. He was unemployed between May and September 2017 as he closed down his business to ‘gather evidence for the issue’. He married in December [Year 5] and has a [Age 2] year old son. His parents are also in China. He stated that he left China legally from Pudong airport Shanghai, using his own passport issued in [2017], a copy of the biodata pages of which he submitted with his application. He states that a previous passport was lost.
The applicant’s protection claims, as outlined in his application form, were as follows:
a.After discovering that in their fourth batch of goods the suppliers of [Product] to his new [company] had provided him with defective products resulting in customer complaints, he told the friend who had recommended them that he would stop purchasing from the company and report them to the China Food and Drug Administration.
b.His friend warned him that the suppliers had a gang background and that he should be careful and not provoke them. However, he still wanted to collect evidence, hoping that the relevant departments would suspend their business for rectification.
c.He started to notice that since April 2017 he always felt that he was being stalked by a man. Then he received an anonymous letter saying that if he had collected evidence against them, he would be in a very dangerous situation. When he realised that someone had followed him all the way from the company to his home, he was terrified. After settling his wife and son, he fled to Australia.
d.The harm he experienced in China was threats in the form of a letter that he received from ‘the dark force’. After finding he was being tailed he feared what their next step would be.
e.He did not seek help from authorities because he was gathering evidence to sue them in the court and was preparing to file the document when he received a warning from them.
f.He tried to seek safety by living in a motel after he settled his family, but they could still trace him. He knew that he was not safe as long as he was in China.
g.He is afraid that if he returns, they will get to know eventually and he will be in danger again. He cannot go back because it is too dangerous for him as the gangster will chase after him and do everything to silence him.
h.He does not think the authorities will protect him if he returns as the gangsters have already bribed them.
i.He cannot relocate anywhere else as long as in China as they can silence him in any brutal way. They will definitely abuse him after they catch him.
The applicant failed to attend his scheduled interview with the Department on 18 November 2020.
On 25 November 2020 the delegate refused to grant the applicant a protection visa on the basis that he was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under either the refugee or complementary protection criterion.
Evidence before the Tribunal
On 18 December 2020, the applicant applied to the Tribunal for a review of the Department’s decision.
The applicant appeared before the Tribunal by videoconference on 4 November 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
CONSIDERATION OF CLAIMS AND EVIDENCE
Relevant Law
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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
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.
CONSIDERATION OF Claims and evidence
Credibility
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason 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 remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. 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, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
Analysis, Findings and Reasons
The issues that arise on review are whether the applicant is a person in respect of whom Australia has protection obligations under the refugee criterion or the complementary protection criterion.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal found the applicant’s evidence about his experiences in China vague, speculative and at times inconsistent and implausible.
The applicant told the Tribunal that he was being targeted by four gangsters, ‘his friend’s friends’, who had been suppliers of [Product] for his [company] because he had ‘harmed their interests’. This was because he had submitted samples of their product for testing to confirm they were defective and stopped purchasing their products. He claimed that, although he did not report the suppliers to the Chinese authorities, they knew he had evidence against them. Asked how they knew this, the applicant responded variously that, ‘people have ears’, ‘you just know’, that his friend told them about it and that he had received a threatening anonymous letter ‘from them’. The applicant did not respond directly when questioned as to how he knew that his friend told the suppliers and that the anonymous letter came from them. Instead he asked rhetorically, if his friend did not tell them, how was it that they were looking for him all the time; and who else could the letter have come from as there was no one else whose interests he had harmed. To the Tribunal’s query as to how the applicant had harmed the suppliers’ interests, given that he did not reported them to the authorities, the applicant responded with a new claim that, as he was their ‘biggest customer’, he had harmed the suppliers interests by ceasing to buy their product. The Tribunal considers the applicant’s responses to be self-serving and speculative.
Significantly, the applicant gave inconsistent evidence as to the timing and sequence of events which led to his fleeing China in July 2017. In his written statement, the applicant stated that since April 2017, he started to notice that he always felt he was being stalked by a man. He then received an anonymous letter saying that if he had collected evidence against ‘them’, he would be in a very dangerous situation and was later terrified when he realised that someone had followed him all the way from the company to his home. He closed his business in May 2017. By contrast, he told the Tribunal that he stopped buying products from the gangster suppliers around 25 December 2016, received the ‘anonymous’ letter from them in January 2017 and closed his business in February 2017.
In the course of his application and review, the applicant also embellished his evidence as to the content of the anonymous letter. In his application to the Department he stated that the letter warned that if he had collected evidence against the suppliers, he would be in a very dangerous situation. At his hearing, however, he initially stated that the letter stated that the author actually knew that he had been checking and had evidence that the source of the goods had a problem. Later he added that the letter threatened to have his family ‘shut their mouth forever’, which he said meant that he would be killed.
The Tribunal’s concerns about the veracity of the applicant’s evidence is compounded by inconsistencies between his written application to the Department and at hearing as to where he lived and worked before opening his [company] in Taian in October 2017. In his application form, he stated that he lived in Taian from birth until he left for Australia in July 2017 and worked there in a factory from [Year 2] till October 2016, when he opened his own [business] there. However, he told the Tribunal that after finishing school he lived and worked in many different cities in China: as a handyman in Jinan ([Year 2]-[Year 3]); as a sales assistant selling [machinery] in Nanjing ([Year 3]-[Year 4]) and Shanghai ([Year 4]-[Year 6]); in [sales] in Beijing ([Year 6]-2016) and Szechuan (for a few months).
Based on his evidence, the applicant did not experience serious or significant harm in China. In his application he referred only to threats in the form of a letter that he received from ‘the dark force’ and being tailed. Asked at hearing whether anything happened to him between the time he closed the business and departed China in July 2017, the applicant said a car was always stopped hear his home, that he was very cautious and felt mental pressure from people at the gate of his factory staring when he was closing his business. He also confirmed that nothing had happened to his family since he left China, although he introduced new evidence that the gangsters told his wife from time to time that they would find him if he returned to China. He claimed that this had first occurred not long after he left China and most recently on 1 October 2021. In the Tribunal’s view if the gangsters, whom the applicant described as having ‘lots of power’, were seriously targeting him and his family, they would have found him before he left China or taken action against his family after he left.
Further, the Tribunal is not satisfied that the applicant will face serious or significant harm if he returns to China now. When asked why he feared returning, the applicant claimed that he was worried that ‘those people’, were still looking for him because he had been their biggest customer and that they would definitely harm him if he returned, be it cutting off his arms or legs or having him killed in a traffic accident. He was, however, unable to explain why the suppliers would still be interested in him after four years, in which time they could have replaced him as a customer, especially given that he had only purchased four batches of goods from them, closed his business in 2017 and never reported their sale of defective products to authorities. The Tribunal found implausible the applicant’s response that such people had ‘no bottom line to achieve their goal’. Moreover, the applicant confirmed that he would not report the suppliers to police now, making reference to a Chinese TV series about gangsters. He also confirmed that he had never had any problems with the Chinese authorities.
On the basis of the evidence before it, the Tribunal does not find it plausible that the applicant ever suffered harm or was threatened by gangster suppliers in China as claimed, nor that he will face serious or significant harm from gangsters or anyone else in China if he were to return there now. Rather, it is the Tribunal’s view that the applicant fabricated his claims to achieve a migration outcome.
For the reasons given above, the Tribunal is not satisfied that, if the applicant were to return to China now or in the reasonably foreseeable future, there is a real chance that he will be harmed for any of the other reasons set out in s.5J(1)(a) of the Act. The Tribunal finds that the applicant does not have a well-founded fear of persecution in China.
The Tribunal has also considered whether the applicant is entitled to complementary protection for any of the reasons claimed but is not satisfied that 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 he will suffer significant harm.
CONCLUSIONS
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).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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. Accordingly, the applicant does not satisfy the criterion in s.36(2).
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Mara Moustafine
MemberAttachment - 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.
…
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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