N00/34416 [2001] RRTA 259 (16 March 2001)

The applicant, who is a citizen of the People's Republic of China, arrived in Australia and lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (the Act). Visa class XA includes two subclasses: 785 (Temporary Protection) and 866 (Protection). A delegate of the Minister for Immigration and Multicultural Affairs refused to grant a protection (class XA) visa and the applicant applied for review of that decision.

Under s.65(1) of the Act a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied. The criteria for the grant of a protection (class XA) visa subclasses 785 and 866 are set out in Parts 785 and 866 of Schedule 2 to the Migration Regulations 1994 respectively and in s.36 of the Act.

Subsection 36(2) 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 Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. "Refugees Convention" and "Refugees Protocol" are defined to mean the 1951 Convention Relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees respectively: s.5(1) of the Act.

Australia is a party to the Refugees Convention and the Refugees Protocol and, generally speaking, has protection obligations to people who are refugees as defined in them.

However subsection 36(2) of the Act is qualified by subsections (3), (4) and (5).

(3) Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

However subsection 36(3) does not apply in relation to a country in respect of which the non-citizen has a well-founded fear of being persecuted, or of being returned to another country in which he or she has a well-founded fear of being persecuted, for reasons of race, religion, nationality, membership of a particular social group or political opinion: subsections 36(4) and (5) of the Act.

Article 1A(2) of the Convention 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.

The High Court has considered this definition in a number of cases, notably Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379, Applicant A & Anor v Minister for Immigration & Ethnic Affairs and Anor (1997) 190 CLR 225, Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 and Chen Shi Hai v Minister for Immigration & Multicultural Affairs [2000] HCA 19; (2000) 170 ALR 553.

In Guo's case, the Court observed that the definition contains four key elements. First, an applicant must be outside his or her country.

Second, an applicant must fear persecution. Not every threat of harm or interference with a person's rights for a Convention reason constitutes "being persecuted". In Chan's case Mason CJ referred to persecution as requiring "some serious punishment or penalty or some significant detriment or disadvantage". In the same case, McHugh J said that the notion of persecution involves selective harassment, and that in appropriate cases it may include single acts of oppression, serious violations of human rights, and measures "in disregard" of human dignity. In Applicant A's case, his Honour stated that whether or not conduct constitutes persecution does not depend on the nature of the conduct but on whether it discriminates against a person for one of the Convention reasons. 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. 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. However the motivation need not be one of enmity, malignity or other antipathy towards the victim on the part of the persecutor.

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. However, the persecution feared need not be solely attributable to a Convention reason. It may be enough if race, religion, nationality, membership of a social group, or political opinion, is but one of several reasons for the persecution feared.

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.

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. Whenever the protection of the applicant's country is available, and there is no ground based on well-founded fear for refusing it, the person concerned is not in need of international protection and is not a refugee.

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.

The Tribunal wrote to the applicant advising that it had considered all the papers relating to this 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 response to that letter the applicant advised the Tribunal that she wanted to give oral evidence. However the applicant did not attend the hearing or contact the Tribunal to explain her failure to attend. 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. The Tribunal has before it the Department's file, which includes the applicant's protection visa application and written submissions in support of the application. No further material was provided by the applicant in support of the application for review.

The applicant is from China and holds permanent residency in Country A (granted in [year]). Her family continues to reside in China. She speaks, reads and writes Mandarin, English and another language. She holds degrees in her chosen field. The applicant lived in Country A for a number of years.

The applicant's Chinese passport was issued in County A and is valid for five years. She previously held another Chinese passport. Her Australian visitor visa was issued in Country B, is valid for one year and permits a single entry to Australia with a stay of up to three months from date of arrival.

[Details regarding the applicant's status in County A have been deleted in accordance with s431 of the Migration Act 1958 as they may identify the applicant.]

The applicant claims that she left China because of domestic violence. She was married several years ago. In the beginning she and her husband got along very well, however, her husband was suspicious and jealous. He was worried that the applicant was having a relationship with a colleague. He always found fault and quarrelled with the applicant. Her husband began to beat her. She was frightened. At first she did not want to report her husband to the neighbourhood committee or the police because she thought it would be shameful and she wanted to resolve the problem from within the family. She tried and failed. Finally she reported the matter to the neighbourhood committee.

The applicant claims that at that time the old traditions were still very prominent in China. People thought that family was very important. Once a couple were married they should try to save the marriage. People rarely got divorced. The leader of the neighbourhood committee spoke with the applicant and her husband. The leaders from the applicant's and her husband's work units became involved. Everyone had one goal in mind - to keep the marriage together. The applicant felt her life was getting worse and worse. She felt forced to ask for a divorce. Her husband did not agree because he felt the applicant had made him lose face.

The applicant subsequently had the opportunity to travel to Country A. She separated from her husband although he did not agree to a divorce. The applicant stayed in Country A for a number of years. Her husband eventually agreed to a divorce. She heard that he had found another woman. The applicant felt at ease. She thought he would not bother her any more since they were in different countries and he had a new relationship. She hoped to start a new life in Country A.

The applicant claims that her husband was very wealthy. He spent a large sum of money and obtained a Country A visa. He called the applicant and said he wanted to speak with her. She was afraid of him and did not want to talk to him. He became irritated and threatened to kill her. She was very frightened. She did not want to be bothered by him. She decided to come to Australia.

The applicant claims that she is afraid to return to China. She feels that she would find it difficult to protect herself in China. China is a very complicated country. Personal connections are very important. She feels that she does not know how to keep the correct relationships with the leaders at different levels. Her husband has a very successful career and has many powerful ties with the government. She claims that China is not a country governed by law but by individuals. In Australia she feels that if someone threatens her she will be able to go to court and get an order so that the threatening person cannot come near her. She claims it took her a great effort to get her divorce. She does not want her former husband in her life any more.

[Country information and sources relating to Country A have been deleted in accordance with s431 of the Migration Act 1958 as they may identify the applicant.]

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: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA [1997] FCA 289; (1997) 74 FCR 275 at 288), 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: Prasad v MIEA [1985] FCA 47; (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier [1989] FCA 518; (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: The Tribunal accepts that the applicant's marriage was an abusive relationship and that this is one of the reasons why she decided to leave China. The Tribunal is not satisfied, however, that the applicant left China for a Convention reason. Her problems arose out of the personal relationship which she had with her husband. Her relationship turned sour because her husband was jealous and started to take out his frustrations in a physical manner. The Tribunal is not satisfied, on the basis of the evidence before it, that the problems in the applicant's relationship with her husband arose for reasons of her race, religion, nationality, political opinion or her membership of a particular social group within the meaning of the Convention.

The Tribunal accepts that the applicant reported her family problems to the neighbourhood committee. The Tribunal accepts that the committee, along with the heads of the applicant's and her husband's work units, counselled the applicant and her husband with a view to keeping the relationship together. The Tribunal does not accept, however, that the conduct of the neighbourhood committee or the work unit heads was persecutory. They were attempting to help the applicant and her husband, although perhaps not in the way that the applicant envisaged.

The applicant was eventually able to extract herself from her marriage. She did this firstly by separating from her husband and travelling to Country A and later through divorce. The applicant is a highly educated woman who is obviously able to support herself without the need of a husband. The Tribunal accepts that the applicant is apprehensive about returning to China. She has lived in Country A for several years and has lost contact to a certain degree with Chinese culture. The Tribunal accepts that there is some need to use personal connections in establishing oneself in a Chinese community, particularly if one intends to set up one's own business. Nevertheless, the applicant is a strong, well-educated woman. Her family continues to reside in China and will no doubt be able to assist the applicant re-assimilate back into the Chinese lifestyle. The Tribunal is not satisfied that the lifestyle hardships which the applicant faces upon return to China are "some serious punishment or penalty or some significant detriment or disadvantage" which can be characterised as persecution in the Convention sense.

The Tribunal accepts that the applicant is apprehensive about running into her husband again. The Tribunal accepts that the applicant's husband may harass her and make her life difficult if they were to live in close proximity again. However, there is no evidence before the Tribunal that satisfies it that the applicant's husband will persecute her for a Convention reason, should she return to China. He seeks, in the applicant's view, to make her life difficult for purely personal reasons. Despite the applicant's assertions, there is no evidence before the Tribunal which satisfies it that the applicant's husband could use his connections with government officials to cause her difficulties which would be Convention related. Likewise, there is no evidence which satisfies the Tribunal that the applicant would not have the protection of the law if she were to return to China, as she has impliedly claimed. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution in China for a Convention reason.

In any case, however, the applicant holds permanent residency in Country A. Her permanent residence permit is still valid and allows her to enter Country A for an indefinite period of time and to live and work in Country A. The Tribunal finds that the applicant has the right to re-enter and reside in Country A for an indefinite period. While the Tribunal accepts that the applicant's husband tracked her down to Country A and contacted her by telephone, this was not motivated by a Convention reason. He sought to speak with his former wife for apparently personal reasons. He threatened the applicant because he was frustrated that she would not speak with him. Country A is a modern democracy with a fully functioning legal system. According to information before the Tribunal, there are various official courses of action which the applicant could have taken against her husband if she felt she was being harassed by him. The US State Department says that the Country A Government has longstanding programs to deal with violence against women. The law provides complainants with protection from contact with their abusers, if so desired. In some cases, the authorities help women obtain new identities and homes. The Government provides electronic alarms or bodyguards for women in extreme danger of assault. Both national and local governments help fund volunteer groups that provide shelter and other assistance to abused women. The Tribunal is satisfied that if the applicant were to return to Country A she would be able to avail herself of effective protection against the unwanted advances of her former husband. As the applicant has effective protection available to her in Country A, Australia does not owe her protection obligations under the Convention (even if she had a well-founded fear of persecution in China for a Convention reason, which the Tribunal finds she does not).

Having considered all of the evidence before it, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution within the meaning of the Convention. She is not a refugee.

Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.

The Tribunal affirms the decision not to grant a protection visa.