DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 17 July 2024 at 11:32am
CATCHWORDS
REFUGEE – protection visa – China – Federal Circuit Court remittal – land resumption without compensation – protests – detention – physical assault – employment – delay in applying for protection – best interests of the children – period of unlawful residence – passport renewal – deregistering household registration – decision under review affirmed
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 Home Affairs on 26 October 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of China applied for the visas on 8 December 2017. The delegate refused to grant the visas on the basis that the delegate did not accept that the applicants faced a real chance of serious harm for one or more of the reasons referred to in subsection 5J(1)(a) of the Act. The delegate also did not accept that there was a real risk the applicants would face significant harm for any reason on their return to China.
A differently constituted Tribunal affirmed the delegate’s decision, and the Federal Circuit Court set aside that decision. The matter is now before the Tribunal pursuant to an order of the Court.
After initially indicating he would be attending, the first named applicant advised by email the day before the scheduled hearing that he would not be attending and consented to the Tribunal making a decision on the information and documents already presented as well as additional information contained in his email.
Therefore, the Tribunal has determined this matter on the papers with the applicant’s consent as provided for by section 360(2)(b) of the Act.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for…
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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AGLC
2310408 (Refugee) [2024] AATA 3532
Case
[2024] AATA 3532
Decision Date
CaseChat Overview and Summary
The applicants, a family unit comprising a father, mother, and two Australian-born children, sought protection visas. The primary applicant claimed he feared persecution in China due to his involvement in protesting land resumption without adequate compensation, which led to his arrest, detention, and physical assault by local authorities. He asserted that returning to China would expose him to further harm, including potential imprisonment and mistreatment. The other family members relied on his claims.
The court was required to determine whether the applicants met the criteria for a protection visa, specifically whether the primary applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, and whether Australia owed protection obligations to any of the applicants. This involved assessing the credibility of the primary applicant's claims, considering the evidence presented, and evaluating the availability of effective protection in China. The court also had to consider the definition of "member of the same family unit" in relation to the children born in Australia.
The Tribunal found that the primary applicant's claims regarding his experiences in China, including the land dispute, protests, arrest, detention, and physical assault, did not establish a well-founded fear of persecution. The Tribunal noted that the applicant had renewed his passport and maintained contact with his family in China, and that he had worked consistently in Australia since 2009. Furthermore, the Tribunal considered that the applicant had not provided a reasonable explanation for the delay in raising certain claims or presenting specific evidence. The Tribunal was satisfied that the second, third, and fourth applicants were members of the first applicant's family unit, but as the primary applicant did not satisfy the criteria for a protection visa, neither could his family members.
Consequently, the Tribunal affirmed the decision not to grant the applicants protection visas, finding that they did not satisfy the criteria under section 36(2)(a) or (aa) of the Migration Act 1958, nor the derivative criteria under section 36(2)(b) or (c).
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
The Tribunal is satisfied on the evidence provided that the second, third and fourth named applicants are members of the first named applicant’s family unit.CONSIDERATION OF CLAIMS AND EVIDENCE The first named applicant applied for protection on 8 December 2017 including his spouse and two young children in his application. The second, third and fourth named applicants relied on the claims of the first named applicant and did not make any claims of their own. The first named applicant indicated in his protection visa application that he overstayed his visa in Australia to avoid returning to China to escape possible harm to himself by the County Court in his hometown. He indicates he was born in Fuqing City, Fujian Province in [specified year] and his parents and older [sibling] remain living in [Village 1 variant], [Town 1], Fuqing City, Fujian Province. He is in regular contact with his family. He belongs to the Han ethnic group and has no religion. He commenced a de facto relationship in Sydney in 2009. The first named applicant arrived in Sydney in June 2007, departing China from [Airport 1]. He indicates he departed China legally on a valid passport. He renewed his passport though the [representative] of the Peoples Republic of China in [City 1] in 2015. This passport will expire in 2025. He indicates that he resided at the same address in China from the time he was born to his departure in June 2007. In Australia he has lived in New South Wales, Queensland and more recently, Western Australia. The first named applicant indicates he has worked consistently in Australia since 2009. He completed middle school in China before travelling to Australia to study English and attend high school. The second named applicant indicates she was born in Fuqing City, Fujian province in [year]. She indicates her ethnic group is Han and she has no religion. She commenced a de facto relationship in Sydney in 2009. Her parents and [specified family members] remain living in Fuqing City, Fujian Province and she is regularly in contact with her family. She departed China legally through [Airport 1] on a valid passport. Her passport was reissued in 2017 though the [representative] of the Peoples Republic of China in [City 1] and will expire if 2017. She indicates she lived in [Village 2], [Town 2], Fuqing City Fujian province from the time of her birth to her departure from China. In Australia she has lived in New South Wales and more recently, Western Australia. She initially worked in Australia but since the birth of her children has been engaged in home duties. She completed high school in China before travelling to Australia to study English. She indicates she relies on the claims of her husband, the first named applicant. The third and fourth named applicants indicate they were born in Australia in [specified years]. They are citizens of China and speak Mandarin. They do not have passports. They rely on the claims of the first named applicant. The first named applicant (“applicant”) claims for protection in his protection visa application can be summarised as follows:·He was born into a farming family who was assigned a block of land to cultivate with the yields belonging to the State. His family were given a “Certificate of the Right to Use the Land.” Their block was about 15mu in size located on the outskirt of the town. This block enabled their lives to be easier in terms of financial gains for the family.·In September 2006, his father received a letter from the County Government office asking him to return the block to allow a private property development company to construct residential buildings on their block and adjoining ones.·They felt the compensation offered was minimal and his father rejected the proposal as the block was the family’s only means of livelihood. As his father was suffering ill-health and bedridden, he had no choice but to take up the task of fighting against the land acquisition. ·Between October and December 2006, he went to meet with the County Chief, [Mr A], who was overseeing the project. He voiced his family’s concerns and demanded more compensation. In the beginning [Mr A] adopted a co-operative attitude but after a few meetings became increasingly impatient and grumpy when his latest offer was not accepted. Finally, he refused to see the applicant who organised a demonstration outside his office to protest. ·In early January 2007 as he was parading in the street with their slogan with a number of villagers, they were arrested by the police and driven to the police substation for interrogation. He was put in a room with his hands tied behind his back and blindfolded and was beaten with a bamboo pole while being interrogated. ·He was blamed or holding up the project and obstructing the work of government officers. If he did not withdraw his demand , he would be arrested for good in the interest of the community. He was held under arrest for 10 days without charge and locked in solitary confinement. He was not given adequate water or food and the cell was in constant darkness. This was a psychological means of persecution. He recovered quickly from the ordeal apart from [a specified injury].·He returned him and his family were worried about his safety. His father suggested he move to Guangzhou City to stay with his cousin which he did in mid-January 2006.·As he did not hold relocation papers, he was unable to find suitable accommodations, schooling or employment so he returned home by choice early February 2007.·When he returned home, he realised the County Government had sent people to his house to harass his family on a regular basis. His father was so worried that the applicant would be further harmed, he suggested it would be safer to study abroad. In late February he applied to study in Australia.·[Mr A] summoned him to his office, but he refused to go. By late March 2007 he reluctantly agreed to go and meet with [Mr A]. During the meeting, a heated argument arose, and [Mr A] slapped him across the face. The applicant was so angry he pushed [Mr A] away. The force was so strong, [Mr A] fell back and [was injured]. He was again arrested for hurting the Country Chief. He was not sent to the Court for judgment but put into a cell for a month’s confinement. He was beaten twice by the police and was denied visits.·He kept a low profile until his student visa was granted in mid-June 2007. To ensure his safe departure, the applicant’s father had been buying expensive gifts to someone who had connections and the border control to buy his way out of [Airport 1]. This ensured his departure from China [in] June 2007 was without incident.·He will be persecuted or mistreated if he returns to China.·He was beaten by the police.·He reported the matter to the police at another station. ·He tried to relocate but did not have the proper relocation papers. Without the proper documents, he cannot relocate elsewhere (Hukou).·He does not think the authorities can protect him.
Decision
Reasons for decision
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.DECISION The Tribunal affirms the decision not to grant the applicants protection visas.Amanda GoodierMemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…
Ratio Decidendi
Legal Principle Established
Section 423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence not presented before the primary decision was made.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.Member of the same family unit Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations to include a spouse, dependent child or de facto partner of the family head (reg 1.12(1)(a)). The first named applicant applied for protection including his spouse and two young children who were both born in Australia. The applicant provided a copy of his marriage certificate and the birth certificates of his two children. The Tribunal is satisfied on the evidence provided that the second named applicant is the legal spouse of the first named applicant and the third and fourth named applicants are the biological children of the first and second named applicants. The Tribunal is satisfied on the evidence provided that the second, third and fourth named applicants are members of the first named applicant’s family unit.CONSIDERATION OF CLAIMS AND EVIDENCE The first named applicant applied for protection on 8 December 2017 including his spouse and two young children in his application. The second, third and fourth named applicants relied on the claims of the first named applicant and did not make any claims of their own. The first named applicant indicated in his protection visa application that he overstayed his visa in Australia to avoid returning to China to escape possible harm to himself by the County Court in his hometown. He indicates he was born in Fuqing City, Fujian Province in [specified year] and his parents and older [sibling] remain living in [Village 1 variant], [Town 1], Fuqing City, Fujian Province. He is in regular contact with his family. He belongs to the Han ethnic group and has no religion. He commenced a de facto relationship in Sydney in 2009. The first named applicant arrived in Sydney in June 2007, departing China from [Airport 1]. He indicates he departed China legally on a valid passport. He renewed his passport though the [representative] of the Peoples Republic of China in [City 1] in 2015. This passport will expire in 2025. He indicates that he resided at the same address in China from the time he was born to his departure in June 2007. In Australia he has lived in New South Wales, Queensland and more recently, Western Australia. The first named applicant indicates he has worked consistently in Australia since 2009. He completed middle school in China before travelling to Australia to study English and attend high school.