2101471 (Refugee) - [2023] AATA 2579

2101471 (Refugee) [2023] AATA 2579 (29 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Harry Huang (MARN: 9579277)
CASE NUMBER:  2101471
COUNTRY OF REFERENCE:                   China
MEMBER:Catherine Carney-Orsborn
DATE:29 June 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 29 June 2023 at 5:52pm
CATCHWORDS
REFUGEE – protection visa – China – Federal Court remittal – fear of harm from gangster after attack on applicant’s mentor and applicant, and mentor’s death – initial inaction by police and applicant’s complaint to government – detained, abused and accused of anti-government opinions – departure on own passport while on bail after guarantor paid bribes – family harassed and threatened – country information – strictly regulated exit procedures – delays in departing after visa granted and in applying for protection – new passport issued while in Australia – vague, inconsistent and implausible claims and evidence – authenticity of documents – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 91R
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
SZEPZ v MIMA (2006) 159 FCR 291
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection (the Department) 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 citizen of China, applied for the visa on 26 August 2014. The delegate refused to grant the visa on 22 July 2015 on the basis that the applicant was not a person in respect of whom Australia has protection obligations.
On 18 August 2015, the applicant applied for review of refusal to grant him a Protection visa with the Tribunal. On 18 November 2016, the First Tribunal held an in-person hearing with the applicant. On 25 January 2017, the First Tribunal affirmed the Department’s decision.
On 15 February 2017, the applicant commenced judicial review proceedings against the First Tribunal’s decision in [court case number]. On 24 September 2019, the Federal Circuit Court of Australia dismissed the application. On 4 October 2019, the applicant filed an application at the Federal Court of Australia for judicial review against the Federal Circuit Court’s decision in [court case number]. On 3 February 2021, the Federal Court of Australia remitted the matter to the Tribunal for determination according to law. The Federal Court of Australia found that the First Tribunal fell into jurisdictional error because its reasoning was illogical in respect of the Guarantor document submitted by the applicant as evidence of his claims.
The matter is…

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.

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Details

AGLC: 2101471 (Refugee) [2023] AATA 2579
Case: [2023] AATA 2579
Decision Date: 29 June 2023

CaseChat Overview and Summary

This matter concerned an application for a protection visa by an applicant from China. The applicant claimed to fear harm from a gangster following an attack on his mentor and himself, which resulted in his mentor's death. The applicant alleged initial inaction by the police and subsequent detention, abuse, and accusations of anti-government sentiments after he complained to the authorities. He departed China on his own passport while on bail, after bribes were paid by a guarantor. The applicant also claimed his family had been harassed and threatened. The case came before the Tribunal following a remittal from the Federal Court of Australia.

The primary legal issue before the Tribunal was whether the applicant was a person in respect of whom Australia owed protection obligations. This required the Tribunal to assess the credibility and consistency of the applicant's claims and the authenticity of the evidence provided, in light of country information and relevant guidelines. The Tribunal also considered the applicant's delays in departing China after being granted a visa and in applying for protection, as well as the issuance of a new passport while he was in Australia.

The Tribunal found that the applicant's claims and evidence were vague, inconsistent, and implausible. It noted difficulties in explaining why a guarantor assisted him in leaving the country and the consequences of disclosing information. The Tribunal also questioned the applicant's explanation for not applying for a protection visa sooner after arriving in Australia, attributing it to unfamiliarity with the country. The Tribunal affirmed the previous decision, finding that the applicant did not meet the criteria for a protection visa due to the aforementioned issues with his evidence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 The issue in this case is whether the applicant is a person in respect of whom Australia owes protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. The present Tribunal has before it the Department file, the First and present Tribunal files. The Department file contains copy of the delegate’s decision record, copy of the applicant’s foreign passport biodata page, application forms for a Protection visa, change of address form dated 8 September 2014, copy of English translation of a death certificate for [Mr A], copy of an English translation of a death certificate for [Ms B], copy of an English translation of a Decision on Guarantor Pending Trial document, copy of the First Tribunal’s decision record dated 25 January 2017, notification of grant of Bridging visa to the applicant, copy of a Department’s request to attend interview dated 22 June 2015, and a request to the applicant to provide biometrics. The First Tribunal file contains copy of the application for review of refusal to grant a Protection visa dated 18 August 2015, copy of the delegate’s decision record and notification of refusal to the applicant, change of contact details form from the applicant, applicant’s request to the Tribunal to issue Medicare letters, a Tribunal in-person hearing invitation for 14 November 2016, a hearing response form from the applicant, copy of a statutory declaration from the applicant confirming his claims for protection dated 4 November 2016, part 1 of the Tribunal hearing recording, copy of the First Tribunal’s decision record dated 25 January 2017, copy of notification of Tribunal’s decision and outcome to the applicant and to the Department, copy of a Notice of filing of application at the Federal Circuit Court of Australia dated 15 February 2017, copy of the Federal Circuit Court’s judgment dated [in] September 2019, copy of a Notice of filing of application and hearing details at the Federal Court of Australia dated 4 October 2019, copy of the Federal Court of Australia’s judgment dated [in] February 2021, and correspondence from the applicant’s representative advising the Tribunal of Court remittal to the Tribunal dated 4 October 2022. The present Tribunal file contains copy of the applicant’s contact details form, a Tribunal’s acknowledgement of Court remittal letter to the applicant dated 9 February 2021, appointment of authorised representative form from the applicant, applicant’s requests to the Tribunal for the issuance of Medicare letters, copy of the applicant’s movement records, and a pre-hearing attendance form.

Decision

Reasons for decision

The applicant could not explain to the delegate why [Mr D] helped the applicant bailing him out and to leave the country. That he did not know the consequences of him disclosing the information confided to him by [Mr D] would affect [Mr D]. That he did not apply for a Protection visa a lot sooner or shortly after having arrived in Australia because he was not familiar with Australia.The First Tribunal’s decision The Tribunal has access to partial recording of the hearing audio for the hearing that the applicant attended with the First Tribunal on 18 November 2016. The applicant was represented at the hearing. It was confirmed at hearing that the applicant’s claim was based on political opinion and that the applicant was against the Chinese Communist Party (CCP). The applicant confirmed to the First Tribunal how the events unfolded the night [in] February 2014 as recorded by the Department. At the beginning of the hearing, the applicant claimed that [Mr C] had demanded to buy [Mr A]’s house prior to his home visit [in] February 2014. That [Mr C] offered $70,000-$80,000 RMB to [Mr A] for his house. The applicant stated that he remained in hospital 3 days, had no operations but had some bruising and wounds to his neck and back. The applicant was told to wait for the investigation after he went to the anti-corruption body of the PSB. It was clarified at hearing that the PSB was the police. The applicant said that he reported the incident to the police after he was released from hospital. The applicant said that by the time he had been to report the events to the police, two daughters of [Mr A] had reported the events to the police already. The first Tribunal did not accept that the applicant the criteria for the grant of a Protection visa due to inconsistencies in his evidence and inadequate evidence including difficulties with the tendered documents.The present proceedings On 20 June 2023, the Tribunal received pre-hearing submissions from the applicant. The applicant provided in a statement dated 20 June 2023 the following. The applicant’s mother has been harassed by the local PSB and police since the applicant last appeared before the Tribunal in November 2016. The applicant claims that because he appeared before the Tribunal he is now regarded as a ‘dangerous person’ who spreads rumours about the CCP and incited people against the CCP, who has violated bail conditions, and who has fled overseas. It is claimed that the applicant’s mother was approached by the local police and PSB between 2020 and 2022. The applicant claims that while attending her household to conduct Covid19 testings she was asked by local authorities about the applicant and reminded her to tell the applicant to return home for lenient punishment. That on 5 May 2023, the applicant’s mother was last approached by [Mr E], a newly appointed police officer taking carriage of unresolved cases of the [local] PSB. On 27 June 2023 the applicant appeared before the Tribunal. The Tribunal explained that the matter had been remitted to the Tribunal for reconsideration. The Tribunal stated that it had before it the information supplied by the applicant to the Department and the previously constituted Tribunal.

Ratio Decidendi

Legal Principle Established

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