2109600 (Refugee) - [2022] AATA 1360

2109600 (Refugee) [2022] AATA 1360 (11 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2109600
COUNTRY OF REFERENCE:                   China
MEMBER:Alan McMurran
DATE:11 May 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 May 2022 at 11:57am

CATCHWORDS
REFUGEE – protection visa – China – Federal Circuit Court remittal – imputed political opinion – fear of harm from local government and police – father and uncle’s protests against compulsory acquisition and demolition of family business premises and land – beaten, detained, threatened and surveilled – credibility – vague and contradictory claims and evasive evidence – applicant in Australia at the time – elapse of time, no current issues, little or no interest from authorities and low likelihood of continuing protests – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J, 19A(1), 19D(4), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIMA v Rajalingam (1993) FCR 220
MZXRE v MIAC (2009) 176 FCR 552
Selvadurai v MIEA (1994) 34 ALD 347
SZEPZ v MIMA (2006) 159 FCR 291
SZLVZ v MIAC [2008] FCA 1816

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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 1 March 2017 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 7 December 2016. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant faces a real chance of persecution under the Act for reason of his actual or imputed political opinion arising from the demolition of his family’s [business] in 2015 and his father’s opposition and protest to that event.
The Tribunal affirmed the delegate’s decision on 16 October 2020, and that decision was set aside by the Federal Circuit Court [in] July 2021. The matter was considered by the presently constituted Tribunal (the Tribunal) pursuant to the order of the Court. The procedural history is set out below.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Procedural history
The applicant initially sought review of the delegate’s decision in the Tribunal on 23 March 2017.
The applicant attended a hearing before the Tribunal, differently constituted, on 4 September 2020 and again on 16 October 2020. The Tribunal delivered an oral decision on16 October 2020 affirming the Department delegate’s decision.
On 21 July 2021, the Court quashed the Tribunal’s decision and remitted the…

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.

Continue reading 2109600 (Refugee)

Details

AGLC: 2109600 (Refugee) [2022] AATA 1360
Case: [2022] AATA 1360
Decision Date: 11 May 2022

CaseChat Overview and Summary

This matter concerned an application for a Protection visa by a citizen of China. The applicant claimed a fear of persecution by local government and police in China, stemming from his father and uncle's protests against the compulsory acquisition and demolition of family business premises and land. The applicant alleged that his family members had been beaten, detained, threatened, and surveilled. The Federal Circuit Court had previously remitted the matter for reconsideration by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had established a well-founded fear of persecution, specifically an imputed political opinion, on return to China. This required the Tribunal to assess the credibility of the applicant's claims, considering the evidence presented and the country information available. The Tribunal also had to determine if the alleged harm was serious enough to engage Australia's protection obligations.

The Tribunal found the applicant's claims to be vague and contradictory, noting his evasive evidence during the hearing. It considered that the applicant had been in Australia since 2014, had not returned to China, and had been employed full-time since 2016. The Tribunal also took into account that there appeared to be no current issues or significant interest from Chinese authorities regarding the applicant, and a low likelihood of continuing protests by his family. Applying these considerations to the available country information, the Tribunal concluded that the applicant had not established a well-founded fear of persecution.

The Tribunal affirmed the decision under review, meaning the applicant's claim for a Protection visa was not granted.

Orders

Orders of the court

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Background

Background to the litigation

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.Background The applicant is a [Age] year-old citizen of China, of Han ethnicity and from Henan province. He has no relatives in Australia, and is College educated in China. He is separated from his wife, who remains in China with their [Age] year-old son. His parents live in the same rural village and area where the applicant was born and raised. The applicant came to Australia in April 2014, on a temporary student visa to study English. Shortly after that visa expired on 16 November 2016, the applicant applied for a Protection visa, claiming fear of persecution on return to China by local government authorities who were targeting his family. The applicant has been employed fulltime in Sydney since obtaining work rights on his Bridging visa in 2016, and for at least the last 5 years has worked as [an Occupation] on [Workplaces]. He has not returned to China since 2014 and for the reasons expressed below, has stated that he never wants to return.CONSIDERATION OF CLAIMS AND EVIDENCEHearing in the Tribunal- 26 April 2022 The Tribunal had initial difficulty contacting the applicant on his mobile at the appointed time to resume the hearing. When contacted, the applicant said he did not realise that the hearing would be happening. He was asked if he was ready to proceed and to continue. He confirmed his email address as the address recorded by the Tribunal and having received the invitation. He said he probably did not notice the emailed invitation as he had changed his mobile and had not logged on to the address recently. He said he wished to proceed and did not want an adjournment as he wanted the matter to be finalised. The Tribunal explained to the applicant the purpose and reasons for continuing the hearing process in the Tribunal. The applicant was unrepresented. The Tribunal explained that the Member had listened to the audio of the previous two hearing days on 4 September and 16 October 2020 and read the decision record. The applicant confirmed that what he had said to the Tribunal (differently constituted) on those occasions was correct. He did not wish to amend or alter his statements on those occasions. He said it had been difficult because the family had been unable to provide him with any additional information. The applicant was asked if he now had anything further to submit or if he had any other witnesses to rely upon. He said he would like to call his father on his mobile. He said he is the best person who understands his position. He asked if he could call his father from the hearing. He said he had been worried to call him because of his father’s [health] condition and did not want to stress him.

Evidence

Evidence Before The Court

He has not returned to China since 2014 and for the reasons expressed below, has stated that he never wants to return.CONSIDERATION OF CLAIMS AND EVIDENCEHearing in the Tribunal- 26 April 2022 The Tribunal had initial difficulty contacting the applicant on his mobile at the appointed time to resume the hearing. When contacted, the applicant said he did not realise that the hearing would be happening. He was asked if he was ready to proceed and to continue. He confirmed his email address as the address recorded by the Tribunal and having received the invitation. He said he probably did not notice the emailed invitation as he had changed his mobile and had not logged on to the address recently. He said he wished to proceed and did not want an adjournment as he wanted the matter to be finalised. The Tribunal explained to the applicant the purpose and reasons for continuing the hearing process in the Tribunal. The applicant was unrepresented. The Tribunal explained that the Member had listened to the audio of the previous two hearing days on 4 September and 16 October 2020 and read the decision record. The applicant confirmed that what he had said to the Tribunal (differently constituted) on those occasions was correct. He did not wish to amend or alter his statements on those occasions. He said it had been difficult because the family had been unable to provide him with any additional information. The applicant was asked if he now had anything further to submit or if he had any other witnesses to rely upon. He said he would like to call his father on his mobile. He said he is the best person who understands his position. He asked if he could call his father from the hearing. He said he had been worried to call him because of his father’s [health] condition and did not want to stress him. The Tribunal offered to connect the applicant’s father into the hearing, or, alternatively, give the applicant an opportunity to have him provide a written statement to avoid him being stressed in the moment. He accepted the proposal to provide his father’s statement, which he said his [sister] could assist him with. He said he would have an accredited interpreter provide a translation into English and could arrange for that in about 14 days. The Tribunal directed the applicant to provide any additional information by 9 May 2022, which he said he could do, or apply for an extension with reasons. The applicant said he wished to continue with the hearing. The Tribunal explained to the applicant that his father needs to address the issue of the applicant’s fear of persecution arising from the applicant’s claims. The Tribunal attempted to explain to the applicant further that in order for him to succeed, he must be able to show there is a real chance of persecution by the local authorities in China, based upon a well-founded fear, and which might involve serious harm to him in the future, and where the chance of it happening was not exaggerated or fanciful, or in light of all the available facts, not unrealistic or unlikely. He said he understood, and that he still believes there is a ‘real chance’ he will be persecuted.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

This tribunal has re-considered those events and findings.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.Background The applicant is a [Age] year-old citizen of China, of Han ethnicity and from Henan province. He has no relatives in Australia, and is College educated in China. He is separated from his wife, who remains in China with their [Age] year-old son. His parents live in the same rural village and area where the applicant was born and raised. The applicant came to Australia in April 2014, on a temporary student visa to study English. Shortly after that visa expired on 16 November 2016, the applicant applied for a Protection visa, claiming fear of persecution on return to China by local government authorities who were targeting his family. The applicant has been employed fulltime in Sydney since obtaining work rights on his Bridging visa in 2016, and for at least the last 5 years has worked as [an Occupation] on [Workplaces]. He has not returned to China since 2014 and for the reasons expressed below, has stated that he never wants to return.CONSIDERATION OF CLAIMS AND EVIDENCEHearing in the Tribunal- 26 April 2022 The Tribunal had initial difficulty contacting the applicant on his mobile at the appointed time to resume the hearing. When contacted, the applicant said he did not realise that the hearing would be happening. He was asked if he was ready to proceed and to continue. He confirmed his email address as the address recorded by the Tribunal and having received the invitation. He said he probably did not notice the emailed invitation as he had changed his mobile and had not logged on to the address recently. He said he wished to proceed and did not want an adjournment as he wanted the matter to be finalised. The Tribunal explained to the applicant the purpose and reasons for continuing the hearing process in the Tribunal. The applicant was unrepresented. The Tribunal explained that the Member had listened to the audio of the previous two hearing days on 4 September and 16 October 2020 and read the decision record. The applicant confirmed that what he had said to the Tribunal (differently constituted) on those occasions was correct. He did not wish to amend or alter his statements on those occasions. He said it had been difficult because the family had been unable to provide him with any additional information. The applicant was asked if he now had anything further to submit or if he had any other witnesses to rely upon. He said he would like to call his father on his mobile. He said he is the best person who understands his position. He asked if he could call his father from the hearing. He said he had been worried to call him because of his father’s [health] condition and did not want to stress him.