1409195 (Refugee)

[2016] AATA 3236

1409195 (Refugee) [2016] AATA 3236 (22 January 2016)

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DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1409195

COUNTRY OF REFERENCE:                  China

MEMBER:Christine Cody

DATE:22 January 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 22 January 2016 at 3:08pm

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

BACKGROUND[1]

[1] The background in paragraphs 1-4 is sourced from the application form as well as the applicant’s statement.

1. The applicant is a national of People’s Republic of China (“China”) who seeks to be granted a Protection visa under s.65 of the Migration Act 1958 (the Act). After being informed that the Tribunal had insufficient evidence before it to make a favourable decision, he was invited to attend a hearing on 21 January 2016 before the Tribunal to give evidence and present arguments. He is represented by a registered migration agent in relation to the review. He declined to attend the hearing, without providing any reasons. The following background is relevant.

2. He first arrived in Australia [in] October 2005 as a visitor, using a false passport in the name of [Alias A]. He remained in the community unlawfully until [November] 2005, when he applied to the Department of Immigration for his first protection visa, seeking recognition as a refugee ([file number])[2]. He claimed he feared persecution as a result of his involvement and participation in Yiguan Dao, which he said has been branded as counter-revolutionary evil cult since the Communist Party took over China in 1949.

   [2] DF37, application form.

3. His application was refused by the delegate [in] December 2005 and the applicant applied for review with the Refugee Review Tribunal (“the first Tribunal”), which was differently constituted. The first Tribunal affirmed the delegate’s decision on 11 April 2006.  He applied to the Federal Magistrate’s Court [in] June 2006 but this application was not successful. He appealed to the Full Federal Court in March 2007. [In] March 2007, the Full Federal Court remitted the case to the Refugee Review Tribunal (“the second Tribunal”), differently constituted, for reconsideration. After two hearings before the second Tribunal, the second Tribunal also decided not to grant the applicant a protection visa. This decision was handed down on 16 August 2007. The applicant did not lodge any further appeals.

4. The applicant became unlawfully present in Australia in mid-September 2007. He again remained in the community unlawfully, from mid-September 2007 until he was picked up by a Departmental Compliance Officer in July 2013 and detained.

5. Section 48A imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused. On 24 March 2012, the complementary protection provisions were introduced. On 3 July 2013, the Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 (hereinafter referred to as “SZGIZ”) held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa.

6. The applicant applied to the Department of Immigration a second time for a protection visa pursuant to SZGIZ [in] September 2013. The applicant’s claims are set out in his protection visa application lodged with the Department, and his statement. According to those documents, his claims are that:

   ·     He was born in [year] in Fuqing, Fujian province. His ethnicity is Han and his religion is Yiguan Dao. He was married [in] January 2000. He has two children, a [child] born in [year], and a [child] born in [year]. His parents and older [siblings] remain in China.

   ·     He has [number] years of education, having attended elementary school and second Middle high school. Prior to his arrival in Australia he was in [one occupation in an industry]. After he finished school in [year], he held various jobs in [that same industry].

   ·     He left China [in] October 2005 because he feared persecution as a result of his involvement in Yiguan Dao practice. He did not travel outside his home country prior to his travel to Australia. He claims to have paid a substantial amount of money to a people smuggler in order to obtain his false passport.

   ·     From October 2005 until July 2013 he has held various jobs in [that same industry] including [various occupations].

   ·     Although he previously failed to convince the (first and second) Tribunals that he is a Yiguan Dao practitioner, he has never given up on his practice. He claims that from August 2007 until July 2013, he has remained committed to the practice. He has attended lectures and ceremonies at Temple on a weekly basis and he has propagated and promoted among Chinese community in Sydney as well as in Fujian, China (his immediate family members including his parents and wife). He claimed that as a result of his insight and detailed explanations of Yiguan Dao practice, his wife gradually became a practitioner. She set up a shrine at the back of her business premises. She and his parents worship at the shrine, his wife distributes pamphlets and recruits many people to become followers.

   ·     In 2010 the authorities raided her premises where a ceremony was being conducted. She was detained for two days and she wrote a letter repenting her actions so she could be released. 

   ·     In 2012 she was on her way to a ceremony when she was informed that the temple had been raided and everyone was arrested. She placed the children with [other relatives] and she fled to a different province, [named], where she remains.

   ·     He claims he has tried to smuggle his wife out of China but he cannot because her name is on the police wanted list.

   ·     He is not in contact with his relatives.

   ·     He was detained in Australia by the immigration authorities in July 2013. He was in immigration detention at the time of lodgement of his protection visa application form. If he returns, he would be incriminated and subsequently subject to significant harm owing to his wife’s ongoing involvement with Yiguan Dao. He cannot return to China as he has been, and will be, persecuted by the Chinese authorities. There are ongoing human rights’ breaches in a context of extreme secrecy and loopholes in the judicial system so he will suffer harm.

   ·     The applicant also claimed to fear harm on account of his claim of having departed China on a passport not issued in his own name as this would cause him to be subject to arbitrary arrest, interrogation, malicious bodily harm and possible mental and physical torture.

7. The applicant indicated in his application form that he would provide documents in support of his claims, however no such documents were provided.

8. The applicant was invited to attend an interview with the delegate [in] May 2014. The day before the interview, the agent wrote to the Department stating that the applicant had sent him a message that he was “under the weather” and would not be able to attend the interview the following day. The delegate replied to the agent that this was insufficient information to postpone the interview. The agent wrote back to the delegate stating that he received instructions from the applicant that the delegate should proceed to make a decision based on the information before the delegate. Thus, the applicant did not attend an interview to discuss his claims with the delegate.

9. The delegate refused to grant the visa [in] May 2014, having considered the claims on the grounds of refugee and complementary protection. The Departmental file contains a copy of the delegate’s decision record. The delegate noted that the applicant had failed to attend an interview, and had failed to provide sufficient reasons for failing to attend. The delegate stated that he was unable to examine the applicant’s claims in any detail, nor was he able to offer the applicant the benefit of the doubt. The delegate was not satisfied that there was sufficient information to substantiate any of the applicant’s claims (passport or religion related). The delegate did not accept any of the applicant’s claims as credible, and dismissed all of his claims in their entirety. This is an application for review of that decision.

10. On 22 December 2015, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the 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 on 20 January 2016. The Tribunal sought (in accordance with the Practice Direction) a written submission setting out all claims made and maintained by the applicant by 13 January 2016 accompanied by a signed declaration from the applicant that the submission has been read and explained to him and that it accurately and completely presents his claims.

11. On 12 January 2016 the applicant advised the Tribunal through his agent that he did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it. No further submissions, documents or evidence was provided to the Tribunal. This matter has therefore been determined, without hearing, on the evidence available to the Tribunal.

12. The Tribunal has considered the applicant’s assertions as to country information contained in his statement, and in accordance with Ministerial Direction No. 56, the Tribunal has also taken into account the country information assessment prepared by DFAT expressly for protection status determination purposes, DFAT Country Information Report China, 3 March 2015 (the DFAT report), and DFAT Thematic Report, Unregistered religious organisations and other groups in the People’s Republic of China, 3 March 2015 (the DFAT Thematic report).

13. The Tribunal has referred to the evidence and information before it when relevant, below.

    CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS AND REASONS

    The Effect of SZGIZ and its relevance to this review

14. Further to paragraph 5 above, the Tribunal’s understanding of the reasoning in SZGIZ is that it does not have power to consider the Refugee Convention criterion in s.36(2)(a), and thus should proceed on the basis that it can only consider the applicant’s claims under the Complementary Protection provisions in s.36(2)(aa) of the Act.

15. The Tribunal notes the decision of the Federal Circuit Court in SZVCH v MIBP [2015] FCCA 2950 which indicates that in a case such as this case, where a valid application has been made to the Department, and the Department has considered claims under both the Refugee Convention in s.36(2)(a) and the Complementary Protection provisions in s.36(2)(aa) of the Act, the Tribunal should also consider claims under both.

16. After the decision in SZVCH, there had been another decision of the Federal Circuit Court in SZQTJ v MIBP [2015] FCCA 3226. This case found that the correct approach is to consider only claims in relation to the complementary protection criterion in s.36(2)(aa) (where the applicant had previously been refused a visa on the basis of the refugee criterion in s.36(2)(a)). The court found that, the approach in SZVCH is inconsistent with the clear words of s.48A and with SZGIZ, which makes clear that a second application can only be made relying on a different criterion. The decision in SZVCH cannot be reconciled with the binding authority of the Full Court and is wrong.

17. The Federal Court in AMA15 v MIBP [2015] FCA 1424 upheld the Tribunal’s understanding that only claims in relation to the complementary protection criterion in s.36(2)(aa) should be considered, where the applicant had previously been refused a visa on the basis of the refugee criterion in s.36(2)(a).

18. The Tribunal notes that the applicant’s written claims refer to terminology relevant to both the refugee and complementary protection criteria. No submission was received in light of the decision of AMA15 v MIBP [2015] FCA 1424.

19. In light of the Federal Court authority, it is the Tribunal’s view that the applicant’s claims only in relation to s.36(2)(aa) should be considered.

20. However, the Tribunal understands that SZVCH is now listed for hearing at the Federal Court in May 2016. In that case the argument is being pursued that the Tribunal should consider claims under all criteria once a second protection visa application has been lodged. Given the current circumstances, the Tribunal has made alternative findings below on the basis of the refugee criterion in s.36(2)(a). The relevant law, in addition to that discussed in the body of this decision, is set out in Annexure A (that Annexure also contains the law relating to the Refugee Convention criterion in s.36(2)(a)).

    Receiving country

21. The Tribunal notes the applicant’s claims that he entered Australia using the passport of one Chinese citizen, but he claims to be a different Chinese citizen. The applicant did not attend before the Tribunal to answer questions about his identity or his country of citizenship or any other factors relevant to determining his receiving country (or his identity). The Tribunal notes that the Department was prepared to accept that the applicant was a citizen of China. For the purposes only of these proceedings, the Tribunal is prepared to accept that the applicant is a citizen of China, and that China is the receiving country for the assessment of his complementary protection claims.

    Credibility

    Concerns about the applicant’s claims

22. The applicant claims to fear significant harm (and/or persecution). The mere fact that a person claims such fears 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 or that it amounts to significant harm. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.

23. Pursuant to s.5AAA of the Act it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.

24. 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) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169‑70).

25. In the circumstances where an applicant does not attend a hearing to which she is invited, the Tribunal also notes the decision of the Federal Court in BZADA v MIC and RRT [2013] FCA 1062, where Rangiah J held at [21]:

    As his Honour correctly found, the Tribunal was unable to reach the requisite level of satisfaction to grant the applicant a visa given his failure to attend the hearing and the Tribunal’s inability to test and examine his claims in evidence. The relevant statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the criteria for the grant of a protection visa depends not on a particular matter being established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.

26. The Tribunal has considered country information, and in accordance with Ministerial Direction No. 56, the Tribunal has also taken into account the DFAT Report and the DFAT Thematic Report. The Tribunal would have discussed relevant sections with the applicant at hearing; on the evidence before it, the Tribunal is not satisfied that the DFAT reports (or the PAM Guidelines) change the Tribunal’s findings in the above paragraphs, or below.

27. The Tribunal has considered on the evidence before it whether there is a real risk that the applicant faces significant harm in China (or, as discussed later, a real chance that the applicant will be persecuted within the meaning of the Convention if he returns to China in the reasonably foreseeable future). He did not attend an interview with the delegate, after which his application was refused for a lack of satisfaction that his claims were credible. He did not provide any further evidence (or submissions) to support his claims, even though he had been informed by the Tribunal in the hearing invitation letter that the Tribunal had insufficient information before it to make a favorable decision on his behalf.  Having rejected the Tribunal’s offer to attend a hearing to give evidence and present arguments, he did not seek to provide the Tribunal with any further material to support his claims.

28. In the absence of further details and evidence, the Tribunal is not satisfied that the claims made by the applicant are credible. The Tribunal has the following concerns.

    Yiguan Dao

29. The applicant claimed that he fled China in 2005 because he feared persecution as a result of his involvement and participation in Yiguan Dao practice. It was noted in his statement that his claim to have been a Yiguan Dao practitioner was not previously believed. Yet he did not provide any details in his current application (or his statement) concerning how long he practised in China, the consequences for him of practising in China, and whether he came to the attention of the Chinese authorities before he left for Australia. He asserts that he had a fear of persecution when he left China, yet he did not provide any details of his past practice, threats or harm feared or received, nor the basis of his fear of persecution when he left China. The Tribunal also notes that according to his protection visa application form, he has not been subjected to a criminal investigation nor does he have charges pending, nor has he been convicted of any crime or offence. In all the circumstances, including his failure to attend a hearing without offering any reason, the Tribunal is not prepared to accept his assertions in this current application that he was a Yiguan Dao practitioner who had to use a false passport to flee China for fear of persecution as a Yiguan Dao practitioner.

30. Further, in his protection visa application form, he claims to have lived at the same address from his birth until he departed China for Australia. As he claims that Yiguan Dao is considered to be an evil cult in China, and banned, he has not explained how he managed to practice this religion while continuing to reside at an address where he would be known to the authorities. The Tribunal is not prepared in these circumstances to accept that the applicant was a Yiguan Dao practitioner prior to leaving China.

1. Further, the applicant has not explained why he felt it necessary to take the significant step of fleeing China to travel to an unknown country, whereas his wife did not do so; instead he claims that she managed to relocate in China when she had fears about her practice of the religion. Given that the applicant has remained in Australia unlawfully from September 2007 until he was located by Immigration Compliance officers in July 2013, it could be that his intention in coming to Australia was not to flee persecution but to work and accumulate funds. He has not explained why he did not relocate within China to avoid claimed persecution, as his wife did, nor has he explained why he did not return home when he was found not to be entitled to protection, and was thereafter unlawfully present in Australia.

2. Further, the applicant claimed that his wife practiced Yiguan Dao from mid-2008 until 2010; thus, while he was unlawfully present in Australia, his wife was managing to practice their religion apparently in the open (including distributing pamphlets personally, recruiting followers, inviting a growing number of people to attend ceremonies and lectures at the temple at her business practice). The applicant has not explained why he did not return home during this time given that his wife was able to practice and promote the religion in an apparently free manner.

3. Further, noting his claim that his wife was first detained and interrogated in 2010, and noting his claim in his current application that he fears returning home because of his wife’s Yiguan Dao practice (which will implicate him and cause him harm), he has not explained why he took no steps to approach the Minister to seek permission to remain or to lodge a further protection visa application based on the claimed change in his circumstances from 2010 (when his wife was first detained which he claims would lead to adverse consequences for him if he returns) until when he was caught because of his illegal presence in 2013. The Tribunal considers that if his claimed fears were real concerning his wife’s claimed practice and the adverse attention she received from the authorities, he would have taken steps to regularise his status here on the basis of these new claims. His failure to do so undermines his claims that he and his wife (and parents) were involved in Yiguan Dao and feared persecution for that reason.

4. Further, the applicant claimed that he introduced his wife to this religion which is considered to be an evil cult, while he was in Australia and she was in China. Given his claim that he himself had to flee China because of a fear of persecution from practicing this religion, the Tribunal considers it highly unlikely that he would introduce his wife (who was responsible for their two small children) to a religion which was so dangerous in China that he was unable to remain there.  He also claims to have introduced his parents to the religion; similarly the Tribunal considers it highly unlikely that he would have placed his parents in a position whereby they (and his wife) faced persecution, while he was living safely in Australia. Further, given that it is considered to be a secret cult and the Chinese authorities take actions to limit communication about banned matters (political, or to stop cults spreading[3]), the applicant has not explained how he was able, as claimed, to communicate to his wife relevant information such that he conveyed his insights of a banned religion to her, convincing her to join it, from another country. 

   [3] For example see DFAT Report, paragraphs 2.21, 3.18, 3.19

5. Further, the applicant claimed in his statement that after her arrest in 2010, his wife continued to practice the religion, travelling to remote places and handing out pamphlets and leaflets to strangers she came across on the street. The Tribunal considers it highly unlikely that the wife, having already come to the attention of the authorities for practising what is considered an illegal, evil cult, would take the risk of handing out pamphlets to strangers, who could very well report her to the authorities. The Tribunal considers this claim, indicating she is prepared to take risks in relation to her religion and be detained, to be contradictory to the claim that because she has two young children to look after, she told the authorities that she would not be involved in Yiguan Dao in the future.

6. Further, the applicant claimed that his wife is on the police wanted list (and that as a result of his wife’s religious involvement he will be implicated) but he has provided no explanation or information to support this assertion.

7. The applicant claimed that he would provide documents to the Department, however he has failed to do so. While, the Tribunal notes that he is not required to provide supporting documentation (and that it may be particularly difficult to do so in relation to events in China), he has not explained why he proposed to provide documents, but then failed to do so. While the applicant has provided written information about Yiguan Dao in his statement, the Tribunal is not prepared to accept, on this basis or any other, his assertions that he is, and has been, a practitioner of Yiguan Dao, and that his family are also practitioners.

8. On the basis of the evidence before it, and indeed an insufficiency of information, the Tribunal is not satisfied that the applicant is or ever has been a genuine (or otherwise) Yiguan Dao practitioner (or that his family members are or have been), that he or any of his family have ever come to the attention of the community or the authorities in relation to Yiguan Dao or for any reason (including detention), that he left China for reasons of a fear of persecution, that he lodged his first protection visa application because he feared persecution, that there is any reason for him to be imputed, or his family to be imputed, as Yiguan Dao practitioners or anti-government, that his wife’s name is on a list, that he has tried to smuggle her out of China, that he will be implicated in anything because of his wife, that he or his family face any risk of harm on the basis of religion, nor that he has attended Yiguan Dao activities in Australia. The Tribunal is not satisfied that there is any reason for anyone to harm the applicant, or his family members, in China, for any reasons relating to Yiguan Dao or imputed religion or anti-government matters.

   Claim to face harm on the basis of having left China on a false passport

9. The applicant has claimed that he left China on a false passport. He has cited in his statement, in English, what he claims are the laws of China in relation to leaving China on a false passport. He has not provided any details of the law (such as the full name of the law, a link to the law or photocopy of the relevant extracts, nor has he provided any accredited translation of the law from Chinese to English, nor has he provided any information to show that the law he is referring to is current law, nor that it relates to the time that he claims to have left China on a false passport. He has not provided any information as to how he sourced the law, and whether the law he quotes is selective, and what factors may influence the imposition of the law, or any penalty. Further, he has not provided any information suggesting that the law, if it is relevant to his circumstances, is or has been ever enforced. The Tribunal does not consider that he has made out a claim that he faces a real risk (or real chance) of being suspected of, or being found to have, breached immigration laws.

10. The applicant claimed that in support of his claims he would provide documents to the Department however he has failed to do so, and he has not provided any explanation for his failure to do so. While, as noted above, the Tribunal notes that he is not required to provide supporting documentation, he has not explained his failure to do so. The Tribunal considers that in the circumstances, if he had documentation in support of his assertions as to the state of the law in China, he would have provided it, or he would have explained why he was unable to do so.

11. The applicant also asserted that he could be subjected to arbitrary arrest, disappearance and/or detention; once he was detained, he would face significant harm both in terms of the conditions in detention; the length of detention and that he would face interrogation, mental and physical harm.

12. The Tribunal notes that this is the second time he has lodged a protection visa application. According to his statement, in his first application, his claim related to Yiguan Dao; he did not suggest that he raised his claimed illegal exit in the first proceedings. The Tribunal considers however that if he had left China on a false passport, he would have made enquiries before lodging his first application as to whether he faced a real chance of harm for having done so. On the basis of his statement it appears this was not a concern when he lodged his first application; the applicant has not explained or given any information as to when this became a concern, and the basis for such concern.

13. The Tribunal has also considered the DFAT Report, which it would have discussed with the applicant if he had attended the hearing. DFAT assesses that it would be difficult to depart China on a fraudulent passport owing to the sophisticated technology used and the degree to which surveillance by immigration and security agents occurs at China’s major airports…. a number of agencies within the Ministry of Public Security hold responsibility for monitoring entry and exit procedures at Chinese airports, including the Public Security Bureau, the Entry and Exit Authority, and the Frontiers Inspection Bureau. China’s major airports have a centralised system with name matching alert capabilities. Security monitoring capabilities at major airports are comprehensive[4].

    [4] Paragraph 5.16, 5.26, DFAT Report

14. The Tribunal has considered the applicant’s claims on the evidence before it. Concerning his assertion that he left China on a false passport, he did not provide any evidence of this in the current proceedings other than a certified copy of the identity page of the false passport (and his claimed genuine passport). While the Tribunal notes that the Department has accepted that he arrived in Australia on a false passport, the Tribunal notes that this does not mean that he left China using a fraudulent passport, or without exit permission. The Tribunal accepts the DFAT assessment that it is difficult to depart China on a fraudulent passport. The Tribunal considers that the applicant could have left China in accordance with Chinese laws, and thereafter obtained a passport in a fraudulent manner in another country, and used that to travel to Australia. The Tribunal has not seen an exit stamp in the false passport, but even if there was one, it does not mean that the applicant exited on the false passport. Further, although the identity page of a passport in his claimed real name has been provided, the Tribunal does not have the remaining pages. Even if the remaining pages were blank, this does not mean that he does not have another passport in that name, that he used to depart China. A further possibility is that he could be a different person altogether, who has another passport he has not produced, which he used to legally depart China. The Tribunal notes that this is a person that it has found had no need to flee China, as he did not face persecution or harm there. Thus, he had no need to use a false passport to come to Australia, but he was prepared to use a false passport to enter Australia, and to deceive the Australian immigration authorities as to why he was entering Australia (and as to his actual identity).

15. The applicant claimed he was “under the weather” and could not attend the delegate’s interview; he did not provide any medical evidence in support of this assertion. The Tribunal is not prepared to accept that the applicant was unable to attend the interview with the delegate. Thus, the Tribunal finds that the applicant chose not to attend both a Departmental interview, and a Tribunal hearing, to provide oral evidence about his identity and as to the circumstances of his departure from China and how, as claimed, this was in breach of Chinese laws or regulations, which will lead to a real risk of significant harm (or a real chance of serious harm).

16. In the circumstances, including his failure to attend before the Tribunal, the Tribunal is not prepared to accept his assertion that he left China in breach of its immigration laws as they then stood (or are currently stand).

17. The applicant claimed in his statement that he would be “deemed to have engaged in illegal migration activities abroad” and detained at a special facility. The Tribunal is not satisfied that the applicant’s claims are credible. The Tribunal is not satisfied that the applicant does not have a current passport issued by the Chinese authorities that he can use to return to China through lawful channels. There is no evidence that Chinese authorities know that the applicant has applied for protection, nor that they are aware that he used a false passport to enter Australia. The Tribunal is not satisfied that there is a real risk (or real chance) that the Chinese authorities will consider him to have engaged in illegal migration activities abroad (or to have applied for protection).

18. Therefore, the Tribunal is not satisfied that when the applicant arrives at Chinese customs/ border control, or thereafter, that there are substantial grounds for believing that he faces a real risk of significant harm in relation to his departure from China, or his time spent out of China, or for producing to the Department in Australia a false passport, or that he faces a real risk of interrogation or arbitrary detention or arrest or disappearance or harm.  

19. The Tribunal has considered the applicant’s circumstances individually and cumulatively. The Tribunal is not satisfied that the applicant faces a real risk of significant harm from the authorities (for any reason) nor from society.

20. In the absence of further details and evidence, the Tribunal is not satisfied that the claims made by the applicant are credible concerning his background, past harm, or future harm feared, and other than those claims accepted above, the Tribunal rejects all the various claims made and finds that there is no basis for the applicant's claims to fear significant harm. The Tribunal is not satisfied that there are substantial grounds for believing, that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm. Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa).

    Alternate finding - Refugee claims in relation to the applicant

21. The Tribunal considers that the appropriate country of reference for the assessment of his refugee claims would be China. For the reasons set out above, the Tribunal has found that it is not satisfied that the applicant has made credible claims as to past harm or events concerning himself or his family, nor is it satisfied that his claims of future feared harm are truthful. The Tribunal has not accepted that the applicant (or his family) have had involvement in Yiguan Dao, that there is any reason for them to be so imputed, that they have been subjected to harm or adverse attention from the authorities (or society) in any way or for any reason. The Tribunal has not accepted that the applicant left China in fear of persecution, nor that there is any reason to accept that he (or his family) faces a real chance of persecution for reason of religion, or any other reason. The Tribunal is also not satisfied that the applicant left China in breach of its immigration laws or without exit permission, nor is it satisfied that the applicant faces a real chance of adverse attention from the authorities for immigration matters (or any other reason) upon return or in the reasonably foreseeable future. On the evidence before it, the Tribunal is not satisfied that the applicant faces a real chance of serious harm for any reason now or in the reasonably foreseeable future in China.

22. The Tribunal finds that there is no real chance that the applicant faces serious harm now or in the reasonably foreseeable future, if he returns to China.

23. On the basis of the findings of fact set out above, considering the applicant under the refugee criteria, the Tribunal finds that it is not satisfied that the applicant has a well-founded fear of persecution for any Convention-related reason in the reasonably foreseeable future if he was to return to China. Accordingly, the Tribunal is not satisfied that he meets the refugee criterion in s.36(2)(a).

    Member of family unit

24. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a Protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    CONCLUSIONS

25. There is no evidence before the Tribunal to suggest that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa.

26. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

27. The Tribunal is of the view that it does not have jurisdiction to consider whether the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention (the criterion set out in s.36(2)(a)). The Tribunal considers that even if it were wrong in that regard, the applicant does not meet the refugee criterion in s.36(2)(a).

28. Accordingly, the applicant does not satisfy the criterion in s.36(2) for a protection visa.

    DECISION

29. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Christine Cody
    Member

ANNEXURE A - RELEVANT LAW

Note: this is the relevant law applicable when the Tribunal is considering all of the three criteria for a protection visa; namely refugee, complementary protection, and member of family unit of the holder of a protection visa. The Tribunal has considered this law, albeit adapted to meet the relevant criteria as set out in SZGIZ.

1. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa.

   Refugee criterion

2. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of 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. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of 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. 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.

2. There are four key elements to the Convention definition. First, an applicant must be outside his or her country. 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)). Examples of ‘serious harm’ are set out in 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. 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.

3. 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.

4. 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 being persecuted for a Convention stipulated reason. 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.

5. 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.

6. Whether an applicant is a person in respect of 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.

   Complementary protection criterion

7. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia 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 applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

8. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

   Section 499 Ministerial Direction

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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.