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…
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CaseChat Overview and Summary
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.
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