2308954 (Refugee) - [2023] AATA 3615

2308954 (Refugee) [2023] AATA 3615 (11 August 2023)

CORRIGENDUM

DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Esther Yu (MARN 0980221)
Mr Simon Jeans

CASE NUMBER:  2308954
COUNTRY OF REFERENCE:                   China
MEMBER:Mr S Norman
DATE OF DECISION:  11 August 2023
DATE CORRIGENDUM
SIGNED:15 August 2023
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:

The Tribunal acknowledges that Mr Simon Jeans was a second representative on the record in the case and that his name was not included in the decision record finalised on 11 August 2023.

Mr S Norman
Member

DECISION RECORD

DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Esther YU
CASE NUMBER:  2308954
COUNTRY OF REFERENCE:                   China
MEMBER:Mr S Norman
DATE:11 August 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a temporary protection visa.

Statement made on 11 August 2023 at 12:00pm

CATCHWORDS
REFUGEE – protection visa – China – family farm appropriated with inadequate compensation – family petitioned local and provincial governments – warned by officials and brother detained – applicant principally working in other parts of the country and in third country at the time – father and applicant Falun Gong practitioners – warned and released – failed asylum seeker – lawful departure on own passport – no inquiry about protection in third country – application made in Australia after student visa cancelled on re-entry, refusal of immigration clearance and immigration detention – mental health – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2

CASE
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28

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 Home Affairs on 20 June 2023 to refuse to grant the applicant a Class XD - Temporary Protection visa (subclass 785) (TPV) 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 9 May 2023.
The Department delegate’s decision was not lodged with the Tribunal.
The applicant appeared before the Tribunal on 9 August 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review (Ms Yu attended the hearing).

CRITERIA FOR A PROTECTION VISA

The criteria for a TPV are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in…

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 2308954 (Refugee)

Details

AGLC: 2308954 (Refugee) [2023] AATA 3615
Case: [2023] AATA 3615
Decision Date: 11 August 2023

CaseChat Overview and Summary

The applicant, a citizen of China, sought review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to grant a protection visa. The applicant claimed to fear persecution due to his Falun Gong beliefs and past experiences involving the appropriation of his family's farm and subsequent interactions with government officials.

The primary legal issue before the court was whether the applicant had established a well-founded fear of persecution for a Convention reason, specifically for his membership in a particular social group (Falun Gong practitioners) or for reasons of political opinion, should he be returned to China. The court was required to assess the applicant's credibility and the objective country information relevant to his claims.

The court considered the applicant's account of events, including the appropriation of his family's farm, warnings received from officials, and his father's detention. It noted that the applicant was not in China at the time of some of these events, having worked elsewhere and in a third country. The court also considered the applicant's status as a Falun Gong practitioner and the fact that he and his father had been warned and released. The court found that the applicant had not established a well-founded fear of persecution, noting his lawful departure from China on his own passport and his failure to seek protection in the third country. The court affirmed the delegate's decision.

Orders