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1104527 [2011] RRTA  581  (13 July 2011)

Last Updated: 15 July 2011

1104527  [2011] RRTA 581  (13 July 2011)


DECISION RECORD

RRT CASE NUMBER: 1104527

DIAC REFERENCE(S): CLF2011/27565

COUNTRY OF REFERENCE: China (PRC)

TRIBUNAL MEMBER: Rowena Irish

DATE: 13 July 2011

PLACE OF DECISION: Sydney

DECISION: The Tribunal affirms the decision not to grant the applicant a Protection (Class XA) visa.


STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

  1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Citizenship to refuse to grant the applicant a Protection (Class XA) visa under s.65 of the Migration Act 1958 (the Act).
  2. The applicant, who claims to be a citizen of China (PRC), arrived in Australia on [date deleted under s.431(2) of the Migration Act 1958 as this information may identify the applicant] April 2008 and applied to the Department of Immigration and Citizenship for the visa [in] February 2011. The delegate decided to refuse to grant the visa [in] April 2011 and notified the applicant of the decision.
  3. The delegate refused the visa application on the basis that the applicant is not a person to whom Australia has protection obligations under the Refugees Convention.
  4. The applicant applied to the Tribunal [in] May 2011 for review of the delegate’s decision.
  5. The Tribunal finds that the delegate’s decision is an RRT-reviewable decision under s.411(1)(c) of the Act. The Tribunal finds that the applicant has made a valid application for review under s.412 of the Act.

RELEVANT LAW

  1. Under s.65(1) a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied. In general, the relevant criteria for the grant of a protection visa are those in force when the visa application was lodged although some statutory qualifications enacted since then may also be relevant.
  2. Section 36(2)(a) of the Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
  3. Further criteria for the grant of a Protection (Class XA) visa are set out in Part 866 of Schedule 2 to the Regulations.

Definition of ‘refugee’

  1. Australia is a party to the Refugees Convention and generally speaking, has protection obligations to people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
  1. The High Court has considered this definition in a number of cases, notably Chan Yee Kin v MIEA (1989) 169 CLR 379, Applicant A v MIEA (1997) 190 CLR 225, MIEA v Guo (1997) 191 CLR 559, Chen Shi Hai v MIMA [2000] HCA 19; (2000) 201 CLR 293, MIMA v Haji Ibrahim [2000] HCA 55; (2000) 204 CLR 1, MIMA v Khawar (2002) 210 CLR 1, MIMA v Respondents S152/2003 (2004) 222clr1.html" class="autolink_findacts">222 CLR 1, Applicant S v MIMA [2004] HCA 25; (2004) 217 CLR 387 and Appellant S395/2002 v MIMA [2003] HCA 71; (2003) 216 CLR 473.
  2. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the regulations to a particular person.
  3. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
  4. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve “serious harm” to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). The expression “serious harm” includes, for example, a threat to life or liberty, significant physical harassment or ill-treatment, or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant’s capacity to subsist: s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
  5. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
  6. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase “for reasons of” serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
  7. Fourth, an applicant’s fear of persecution for a Convention reason must be a “well-founded” fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a “well-founded fear” of persecution under the Convention if they have genuine fear founded upon a “real chance” of persecution for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. A “real chance” is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
  8. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
  9. Whether an applicant is a person to whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

CLAIMS AND EVIDENCE

  1. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.

Departmental file and evidence

  1. The application form (completed without assistance) states that the applicant was born in Fujian, China on [date deleted: s.431(2)]. He speaks, reads and writes Mandarin. He lists his ethnic group as “Chinese” and his religion as “Christian”. He claims to be a Chinese citizen and not to have citizenship of, or a right to enter and reside in, any other country. He had ten years education in China and lists his occupation as “student” He has lived since February 2001 in [village deleted: s.431(2)], Longtian Town, Fuqing City, Fujian Province. His mother and father live in China.
  2. The applicant arrived in Australia [in] April 2008 on a student visa valid until [March] 2011. His Chinese passport was issued [in] August 2007 and is valid until [August] 2017. He had never travelled outside China prior to his current journey to Australia. He left the country legally and had no difficulties obtaining his passport.
  3. The applicant claims to fear returning to China. In the application form he states:
42. Why did you leave that country?
I was discriminated when I was in China because my religion is Christian. My parents are Christian. They were put into jail for two years because they attend meetings helf by their friends who are Christian. After my parents was put into jail, I was discriminated by my classmates. I was discriminated by my teachers. I was even hit by several classmates on the ground just because of my religion. No one helped that time.
  1. The exact wording as set out above is repeated in response to question 43 (What do you fear may happen to you if you go back to that country?), 44 (Who do you think may harm/mistreat you if you go back?), 45 (Why do you think this will happen to you if you go back?) and 46 (Do you think the authorities of that country can and will protect you if you go back? If not, why not?).
  2. A copy of the applicant’s Chinese passport appears on the Departmental file stating that the original was presented at the NSW Onshore Protection Counter.
  3. The applicant was invited to attend an interview at DIAC [in] April 2011. The invitation was sent by registered post to the address provided by the applicant for correspondence. The applicant did not attend the interview and the delegate refused his application [in] April 2011.

Applicant’s mother’s protection visa application

  1. [Mrs A] (date of birth [date deleted: s.431(2)]), lodged an application for a protection visa [in] February 2010. In that application she claimed to fear persecution in China as a result of statements she communicated to her husband about the merits of the Chinese and Australia governments which he, in turn, had repeated to the authorities in a moment of anger. She claimed that her husband was detained in November 2009 as a result of the comments she made to him. She did not refer to him having been detained on any other occasion or for any other reason. She did not refer to any fears relating to being a Christian in China and did not claim to be a Christian. In the application form she did not list any religion. In the application form [Mrs A] states that she has a son studying in Australia by the name of [the applicant] (date of birth [date deleted: s.431(2)]). She also states that she has a daughter who remains in China with the name [Ms B] (date of birth [date deleted: s.431(2)]).
  2. [Mrs A] lodged an application for review of the decision to refuse her application for a protection visa with the Tribunal [in] June 2010. The Tribunal (differently constituted) made a decision affirming the refusal [in] September 2010. In the decision record it states that [Mrs A] claimed to fear persecution as a result of statements she communicated to her husband about the merits of the Chinese and Australia governments which he, in turn, had repeated to the authorities in a moment of anger. Her husband had been detained since November 2009 as a result of these comments.
  3. The decision record states that [Mrs A] claimed at hearing that her husband worked as a manager in a company earning RMB 80,000 per annum until October 2008 and that she worked at a handbag factory in Fuqing but stopped working there 12 months before coming to Australia, after which time she was a housewife.
  4. The decision record does not refer to the applicant’s mother being a Christian, having been detained for any period of time, or having any fears about returning to China as a result of her religion.

Applicant’s student visa file

  1. The Tribunal received a copy of the applicant’s student visa file. In that file there appears the following documents:

Tribunal file and evidence

  1. [In] June 2011 the Tribunal sent a letter by registered post inviting the applicant to comment on or respond to certain information. This letter stated:
In conducting its review, the Tribunal is required by the Migration Act to invite you to comment on or respond to certain information which the Tribunal considers would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review. Please note, however, that the Tribunal has not made up its mind about the information.
The particulars of the information are:
  1. [Mrs A] (date of birth: [date]) lodged a protection visa application on [date] February 2010. The Tribunal has obtained a copy of the Departmental file in relation to this application (including the application form) and the Tribunal file (including the decision record).
  2. In that application [Mrs A] claimed to fear persecution in China as a result of statements she communicated to her husband about the merits of the Chinese and Australia governments which he, in turn, had repeated to the authorities in a moment of anger.
  3. In that application [Mrs A] claims that her husband was detained in November 2009 as a result of the comments she made to him. She does not refer to him having been detained on any other occasion or for any other reason.
  4. In that application [Mrs A] did not refer to any fears relating to being a Christian in China and did not claim to be a Christian.
  5. In that application [Mrs A] did not refer to having been detained for any period of time.
  6. In the application form [Mrs A] does not list any religion.
  7. In the application form [Mrs A] states that she has a son studying in Australia by the name of [the applicant] (date of birth [date]).
This information is relevant to the review because the application referred to above appears to be that of your mother. The claims made and information provided in that application as set out above appear to be inconsistent with the statement in your protection visa application form which states that your parents are Christian and were jailed for two years for attending Christian meetings.
If the Tribunal relies on this information in making its decision it may find that you have not been truthful about aspects of your claim and that your parents are not Christian and were not jailed as claimed. This may cause the Tribunal to find that aspects of your claims have been fabricated, which may cast doubt on the credibility of your claims overall, and may cause the Tribunal to find that you are not a refugee as claimed. If the Tribunal finds that you are not a genuine refugee it must affirm the decision which is under review, in which case you will not be eligible for grant of a protection visa.
  1. In [Mrs A]’s application form she states that she has two children, a son with your name and date of birth and a daughter who remains in China with the name [Ms B] (date of birth [date]).
  2. In your application for a student visa lodged in November 2007 you have included the details of a sister with the name [Ms B] (date of birth [date]).
  3. In your application for a student visa lodged in November 2007 you provided the Household Register for your father which lists yourself, your mother and a sister with the name [Ms B] (date of birth [date]).
This information is relevant to the review because it appears inconsistent with the information provided in your protection visa application form which states that you have a mother and father but does not include the details of any sister.
If the Tribunal relies on this information in making its decision it may find that you have not been truthful about aspects of your evidence. This may cause the Tribunal to have doubts about the credibility of your claims overall, and may cause the Tribunal to find that you are not a refugee as claimed. If the Tribunal finds that you are not a genuine refugee it must affirm the decision which is under review, in which case you will not be eligible for grant of a protection visa.
  1. At the Tribunal hearing [Mrs A] stated that her husband worked as a manager in a company earning RMB 80,000 per annum until October 2008.
  2. At the Tribunal hearing [Mrs A] stated that she worked at a handbag factory in Fuqing but stopped working there 12 months before coming to Australia, after which time she was a housewife.
  3. In your student visa application lodged in November 2007 you provided an In-service Income Certificate from [Company 1] dated [date] November 2007 stating that your father worked at the company since March 2005 earning RMB 80,000 per annum.
  4. In your student visa application lodged in November 2007 you provided an In-service Income Certificate from [Company 2] dated [date] November 2007 stated that your mother worked at the company since [date] October 2002 earning RMB 30,000 per annum.
This information is relevant to the review because it appears inconsistent with the claim that your parents were jailed for two years as a result of attending Christian gatherings in China.
If the Tribunal relies on this information in making its decision it may find that you have not been truthful about aspects of your evidence and that your parents were not jailed for a two year period as claimed. This may cause the Tribunal to find that aspects of your claims have been fabricated, which may cast doubt on the credibility of your claims overall, and may cause the Tribunal to find that you are not a refugee as claimed. If the Tribunal finds that you are not a genuine refugee it must affirm the decision which is under review, in which case you will not be eligible for grant of a protection visa.

  1. In your student visa application lodged in November 2007 you provided a Record Certificate from [School 3] which lists your results as ranging from 60 to 91 and “Good” or “Excellent”.
This information is relevant to the review because it appears inconsistent with your claim that you were discriminated against in school by your classmates and teachers.
If the Tribunal relies on this information in making its decision it may find that your results are not supportive of a claim to have been discriminated against in school by teachers and classmates and that you have not been truthful about aspects of your evidence. This may cause the Tribunal to find that aspects of your claims have been fabricated, which may cast doubt on the credibility of your claims overall, and may cause the Tribunal to find that you are not a refugee as claimed. If the Tribunal finds that you are not a genuine refugee it must affirm the decision which is under review, in which case you will not be eligible for grant of a protection visa.
  1. The letter advised the applicant he must provide any comments or response to the Tribunal by [July] 2011. It also advised him that if the Tribunal did not receive any comments or response by this date it may make a decision on the review without taking any further action to obtain his views on the information. As at the date of this decision no response has been received.
  2. [In] May 2011 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing [in] June 2011. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. No response was received. The applicant did not provide a telephone number or fax number on which he could be contacted. The applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

FINDINGS AND REASONS

  1. On the basis of his Chinese passport, a copy of which was provided with his application, the Tribunal finds that the applicant is a citizen of the People’s Republic of China. There is nothing in the evidence before the Tribunal to suggest that the applicant has a legally enforceable right to enter and reside in any country other than his country of nationality, the People’s Republic of China. Therefore the Tribunal finds that the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act (see Applicant C v Minister for Immigration and Multicultural Affairs [2001] FCA 229; upheld on appeal, Minister for Immigration and Multicultural Affairs v Applicant C [2001] FCA 1332; (2001) 116 FCR 154).
  2. 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. 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 & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA [1992] FCA 470; (1992) 38 FCR 191, Prasad v MIEA [1985] FCA 47; (1985) 6 FCR 155 at 169-70.)
  3. In assessing the applicant’s Convention claims the Tribunal is required to determine whether he has a well founded fear, and if what he fears amounts to persecution for a Convention reason. The applicant has not provided any further evidence to support his claims. He was informed by the Tribunal that on the evidence to date it was unable to accept his claims. He was offered the opportunity to give evidence and make submissions at a hearing and he did not avail himself of that opportunity.
  4. The delegate’s decision put the applicant on notice as to the deficiencies in his application, yet no further evidence has been received. He was provided with a further opportunity by the Tribunal to provide written comments on certain adverse information but did not avail himself of that opportunity.
  5. The applicant did not attend the hearing and has not provided any additional documents or evidence in support of his claims. This leaves the Tribunal with claims that are untested and stated in the most general terms. The applicant has claimed to be a Christian and that his parents are Christians who were jailed for two years because they held Christian gatherings. However he does not state what denomination of Christians he or his parents are, any details of the type of gathering they were holding, when and where his parents were arrested, their treatment while detained, whether they were formally charged with any offence, why they were released from prison or what has occurred since their release. The applicant claimed that after his parents’ arrest he was discriminated against by his classmates and teachers, including being hit by several classmates. He does not state when he became a Christian, what his current beliefs and activities are in Australia, how he would practise his claimed religion if he was to return to China, how or why he would be persecuted if he was to return to China, or why he was unable to obtain any protection against the claimed discrimination from his classmates and teachers. In making his claims, the applicant appears to have omitted to provide a substantial amount of relevant information. The Tribunal is not satisfied on the basis of the evidence before it that the applicant is a Christian as claimed.
  6. Furthermore the claims which the applicant has made appear to be inconsistent with the information provided to the Department and Tribunal in other visa applications. As referred to above the Tribunal has received a copy of the Departmental and Tribunal files in relation to a [Mrs A]. On the basis of the name, date of birth and family details provided in that application which matches the name, date of birth and family details provided in the applicant’s current application and previous student visa application, the Tribunal finds that this was a protection visa application lodged by the applicant’s mother. In that application the applicant’s mother did not claim to be a Christian (and in her application form did not claim to be any religion) and did not refer to having been detained for two years but rather made her own protection claims on the basis of imputed political opinion and membership of a particular social group. The Tribunal has serious concerns about the contradictory nature of the claims made in the two protection visa applications and would have liked to discuss this with the applicant. As the applicant did not attend the hearing and did not respond to the Tribunal’s invitation to comment on this information, the Tribunal has not received any explanation for these inconsistencies and considers that the differing claims reflect poorly on the applicant’s credibility.
  7. In the applicant’s mother’s Tribunal hearing (differently constituted) she provided information in relation to her employment and her husband’s employment which was consistent with that provided in the applicant’s own student visa application. His mother stated that her husband worked as a manager in a company earning RMB 80,000 per annum until October 2008 and that she worked at a handbag factory in Fuqing but stopped working there 12 months before coming to Australia, after which time she was a housewife. This is consistent with the documents provided by the applicant in his student visa application in relation to his parents’ employment. The Tribunal has serious concerns about how the applicant’s parents could have been working during these periods if they had been in jail for two years and persecuted as claimed by the applicant. The Tribunal would like to have discussed this with the applicant. However, as the applicant did not attend the hearing and did not respond to the Tribunal’s invitation to comment on this information, the Tribunal has not received any explanation to satisfy its concerns.
  8. The applicant claims to have been discriminated against by his classmates and teachers on the basis of his and his parents’ religion. However in the documents provided in support of his student visa application his results show as being “Good” or “Excellent” and his mark range from 60 to 91. This raises concerns for the Tribunal about the credibility of his claim to have been discriminated against. The Tribunal would like to have discussed this with the applicant. However, as the applicant did not attend the hearing and did not respond to the Tribunal’s invitation to comment on this information, the Tribunal has not received any explanation to satisfy its concerns.
  9. On the basis of the above, the Tribunal is not satisfied on the evidence before it that the applicant or his parents have suffered serious harm amounting to persecution in the past, or that this harm was done to him or them for a Convention reason. Further, as the Tribunal finds the applicant has not provided sufficient evidence to support his claims it is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason should he return to China.
  10. In light of the above, the Tribunal is not satisfied that the applicant would face a real chance of persecution for any Convention reason should he return to China in the reasonably foreseeable future.

CONCLUSIONS

  1. The Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a) for a protection visa.

DECISION

  1. The Tribunal affirms the decision not to grant the applicant a Protection (Class XA) visa.

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