1513696 (Refugee)

[2017] AATA 2209

1513696 (Refugee) [2017] AATA 2209 (18 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1513696

COUNTRY OF REFERENCE:                  China

MEMBER:Angela Cranston

DATE:18 October 2017

PLACE OF DECISION:  Sydney

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

Statement made on 18 October 2017 at 1:32pm

CATCHWORDS

Refugee – Protection visa – China – Religion – Catholic – Fears harm from government - Claims lacked essential detail – Failed to appear for hearing

LEGISLATION

Migration Act 1958, ss. 36, 65, 426A, 499

Migration Regulations 1994, Schedule 2

CASES

MIEA v Guo & Anor (1997) 191 CLR 559

Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

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

1. 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).

2.    The applicant who claims to be a citizen of China applied for the visa [in] October 2014 and the delegate refused to grant the visa [in] September 2015. In his application, the applicant claimed to be from a Catholic family that had been persecuted. He stated the following in his protection visa form:

I was born of a Catholic family. From when my [family member] first joined the Catholic Church to my generation, it has been almost 100 years. I received my baptism right after I was born. Ever since I were young. I received Catholic education as well as praise from the local priest and fellow church members.

In the place where we live been religious would make us subject to government sanction. Both of my parents support me decision to move to the country with the freedom of religion.

My father and my mother had been previously locked behind bars for attending church activities. As a result of our church commitments, the school also terminated my father’s studies in university. They came in my house blocking my parents and me go to church and told me if I still want to attend church they would send me to prison.

I am willing to serve my Lord for my freedom and with the support of our parents I came to Australia, a country where is religious [freedom]. I am worried that once I return to China, no matter the body all the soul, I would be subject to destruction. I will be imprisoned and my parents will also be involved. I am still very young and hope that the Lord would bless me with a happy family life.

From when my [family member] first joined the Catholic Church to my generation, it has  been almost a hundred years, they send my family [number] times warning letter before I came in Australia, during I am in Australia they restrict my parents freedom, force my parents servitude at weekend and already asked my parents where am I?

3.    On 19 September 2017 the Tribunal wrote to the applicant via email advising that it had considered all the material before it relating to his 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 at 12.00 pm on 18 October 2017. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice.

4.    The Tribunal confirmed that the hearing invitation was sent to applicant at the most recently advised email address.

5.    The applicant did not appear before the Tribunal on the day and at the time and place at which she was scheduled to appear. There was no reason provided from the applicant as to the applicant's failure to appear and there is nothing before the Tribunal to suggest that he was ill. 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.

CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7.    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).

8.    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:

9.    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. 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’).

2. 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.

3. The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugee Convention in China and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of his being removed from Australia to China, there is a real risk that he will suffer significant harm.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

5. 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. 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.) In the absence of evidence to the contrary, the Tribunal accepts that the applicant is a Chinese national. It is claimed in the applicant's Protection Visa application that he fears harm in China because he is Catholic.

6. The claims before the Tribunal are lacking in essential detail. While the applicant stated that he is Catholic, there is little detail in his application that confirms this statement. The applicant was invited to appear before the Tribunal but did not do so.

7. As a consequence, the Tribunal has been unable to question him further as to the veracity of his claims, leaving his claims unclarified and the Tribunal's questions unanswered. On the evidence before it, the Tribunal is not satisfied that the applicant has suffered persecution in the past, nor that he has a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or because of his membership of a particular social group if he returns to China in the foreseeable future.

8. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

9. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). There is little detail in his application that confirms the applicant is Catholic.  Given this and the Tribunal's inability to question him about the veracity of his claims, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

10. 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

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

Angela Cranston
Member