1414986 (Refugee) - [2016] AATA 4154

1414986 (Refugee) [2016] AATA 4154 (18 July 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1414986
COUNTRY OF REFERENCE:                  China
MEMBER:Rachel Westaway
DATE:18 July 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 18 July 2016 at 4:05pm
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of China, applied for the visa [in] May 2013 and the delegate refused to grant the visa [in] August 2014.
The applicant appeared before the Tribunal on 6 November 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
RELEVANT LAW
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 of the same class.
Refugee criterion
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).
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.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: 1414986 (Refugee) [2016] AATA 4154
Case: [2016] AATA 4154
Decision Date: 18 July 2016

CaseChat Overview and Summary

The applicant, a claimed national of China, sought review of a decision not to grant him a Protection visa. The dispute centred on the credibility of his claims of persecution for practicing Christianity in an unregistered church in China, and whether he would face serious or significant harm upon return. The Tribunal was required to determine if the applicant's claims were sufficiently credible to establish a well-founded fear of persecution under the relevant provisions of the Act.

The Tribunal considered the applicant's account of his involvement with an unregistered church, including a police raid on his home, his subsequent detention and interrogation, and alleged ongoing monitoring and re-education. It also considered his claims regarding his wife's involvement and subsequent detention. The central issue was whether these claims, if accepted, established that the applicant would face serious or significant harm as defined by the Act.

Ultimately, the Tribunal affirmed the decision not to grant the Protection visa. The reasoning focused on the credibility of the applicant's claims, and the Tribunal concluded that the applicant did not satisfy the criterion for a Protection visa. The Tribunal found that there was no suggestion that the applicant met the requirements based on his family unit.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Applicant claims to be a Chinese national. Based on the Department’s findings that his national identity card is genuine, the Tribunal accepts this and finds that China is his country of nationality and his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is the credibility of the applicant’s claims and whether the applicant is as claimed a practicing Christian who on return to China has such a profile that he would face serious or significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. The applicant came to Australia [in] September 2009 on a subclass 976 electronic travel visa. He remained in Australia and became unlawful [in] December 2009 until [May] 2013 when he applied for his protection visa, the subject of this review. He was then granted a Bridging visa C. The applicant made the following claims in his application:· He entered Australia on a fake passport from China under the name of [Alias 1].· He claims to have been persecuted by the Chinese government for attending an unregistered church in China and was forced to flee the country.· He claims he is married to [Applicant’s wife] and she is a Christian. He also claims to have a son. He stated that his wife encouraged him to attend church. He fears the churches will be eradicated by the Chinese Communist Party. · He claims that his wife is resolute in her faith and the practice of it in an unregistered church in spite of the dangers he claims she faces. The applicant claims he then became involved too.· He claims on Sunday [a date in] May 2009 at 10am a Christian gathering was held at his home in China with approximately 10 people. He stated gatherings alternate between homes. The police raided their home and ransacked their house. He and his wife were angry, he confronted the police. The argument escalated and so he took sole responsibility for the religious material and gathering. Other attendees were not arrested however the police took him away to [a named] police station.· He claims he was interrogated and detained for 15 day. He claims he refused to eat and demanded release. He claims following his release he believed he was monitored and his human rights were suppressed. He claims to have been ordered to go to the police station every Sunday for re-education and brainwashing and he was forbidden to attend church services again. He used an agency to assist him in leaving China and they suggested he obtain a fake passport as his profile with the police will not permit him to leave the country.· He claims in December 2012, there was a large scale action by the government arresting members of unregistered churches however his wife was not arrested. In February 2013 he learnt that his wife was caught and detained for 7 days. He claims that she pleaded with police to allow her to go because her son was very young and needed care. She was released and called her husband to say not to return because everyone who attended the unregistered churches were having a miserable life.

Decision

Reasons for decision

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).DECISION The Tribunal affirms the decision not to grant the applicant a Protection visa.Rachel WestawayMember

Ratio Decidendi

Legal Principle Established

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