1506327 (Refugee) - [2016] AATA 4872

1506327 (Refugee) [2016] AATA 4872 (18 April 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1506327
COUNTRY OF REFERENCE:                  China
MEMBER:Amanda Paxton
DATE:18 April 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 18 April 2016 at 11:02am
CATCHWORDS
Refugee – Protection Visa – China – Religion – Local Church - Shouters – Previous adverse interaction with authorities – Witness credibility – Inconsistent evidence – Vagueness in claims – Limited knowledge of religion – Genuineness of faith – Applicant genuinely practiced since in Australia – Lack of evidence of persecution in home country
LEGISLATION
Migration Act 1958, ss 36, 65, 91R, 91S, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
SZGYT v MIAC [2007] FMCA 883
SZMZA v MIAC (No. 2) [2008] FMCA 1418
SZQOJ v MIAC [2012] FMCA
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

The applicant is a citizen of the People’s Republic of China and is now [age]. He first came to Australia as a [visitor] in January 2011. He has not departed Australia since that date.
[In] November 2013 the applicant applied for a Protection visa. Together with the application provided a typewritten statement dated [in] November 2013 setting out his claims in writing and a copy of the biodata page of his Chinese passport.
The applicant attended an interview with the delegate of the Minister for Immigration [in] February 2015. The applicant provided the delegate’s decision record to the Tribunal.
The delegate refused to grant the visa [in] April 2015 on the basis that she did not accept the applicant’s claims concerning his religious practice, i.e. that he was a member and participant in a Local Church in China, and that his understanding of the Christian faith was limited and not commensurate with a person who claimed to have been a Christian almost his whole life. The delegate found that his attendance at Local Church in Australia was limited, and concluded that the applicant had fabricated his claims to support an application for protection. On this basis, the delegate was not satisfied that he will take any steps to become involved in Christianity when he returns to China. The delegate did not accept that the applicant had been detained by police, or that he will be in the future. The delegate was not satisfied that his mother had been arrested on account…

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.

Continue reading 1506327 (Refugee)

Details

AGLC: 1506327 (Refugee) [2016] AATA 4872
Case: [2016] AATA 4872
Decision Date: 18 April 2016

CaseChat Overview and Summary

The case involves an applicant who applied for a protection visa, claiming to be a Chinese national facing religious persecution in China. The dispute centres around the applicant's claim that he belongs to a religious group known as the Shouters, which is not officially recognised in China. The matter was heard by Amanda Paxton, a member of the Tribunal.

The legal issues the court had to decide included whether the applicant was credible in his claims, whether the evidence provided supported his claims, and whether the applicant satisfied the criteria for a protection visa under the relevant Australian legislation. The court had to consider the applicant's credibility, the consistency and plausibility of his claims, and the evidence presented regarding the risk of persecution if he were to return to China.

Amanda Paxton, after assessing the evidence and considering the principles of assessing credibility, found that the applicant's claims were not fully supported by the evidence provided. The Tribunal noted inconsistencies in the applicant's evidence and his vagueness regarding certain aspects of his religious beliefs. The Tribunal also highlighted the applicant's previous adverse interactions with authorities and the lack of evidence demonstrating that he would be persecuted if he returned to China. Ultimately, the Tribunal concluded that the applicant did not meet the criteria for a protection visa.

The Tribunal affirmed the decision not to grant the applicant a protection visa, finding that the applicant had not satisfied the criteria under the relevant legislation. The decision was based on the lack of credible and consistent evidence supporting the applicant's claims of religious persecution in China.

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 will definitely attend the same church if he returns to China and he will definitely suffer unless the government removes the prohibition on attending his church. He wants to enjoy freedom of religion. The applicant is scared he will be arrested if he returns.CONSIDERATION OF CLAIMS AND EVIDENCECountry of reference The applicant claims to be a Chinese national. Based on the copy of the applicant’s passport, I find that China is his country of nationality for the purposes of the Convention and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.Credibility The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203): The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220). However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)

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.Amanda PaxtonMember

Ratio Decidendi

Legal Principle Established

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