1515672 (Refugee)

1515672 (Refugee) [2018] AATA 2902 (2 July 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1515672
COUNTRY OF REFERENCE:                  China
MEMBER:David McCulloch
DATE:2 July 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 02 July 2018 at 10:25am

CATCHWORDS
Refugee – Protection Visa – China – Particular social group – Imputed political opinion – Falun Gong practitioners – Applicants did not attend hearing – Insufficient evidence provided to support claims – Decision affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), r 1.12, 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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 21 October 2015 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of China, applied for the visas on 16 February 2015.
The Tribunal scheduled a hearing on 26 June 2018 to which the applicants were invited. In response, the first named applicant (the applicant) sent an email to the Tribunal indicating that a decision had been made not to attend the hearing as he ‘feel very pressured’. He requested that the decision be made on the previous information provided. The applicant indicated that the applicants were longer represented by their registered migration agent.
CRITERIA FOR A PROTECTION VISA
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, he or she 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.
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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a) of the Act. In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
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 the 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 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). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Sections 36(2)(b) and (c) provide, as an alternative criterion, that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include spouse. The applicant has provided a certified translation of a Marriage Certificate evidencing a marriage between the applicant and the second named applicant, but without the original or copy of the original being provided. The Tribunal accepts, for the purpose of this decision only, that the second named applicant is the spouse of the applicant and is therefore a member of the same family unit as the applicant.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it the DFAT Country Information Report – People’s Republic of China, 3 March 2015.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the Tribunal can be satisfied of the claims made by the applicants and whether they meet the criteria for a protection visa. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background and claims
Both applicants arrived in Australia [in] November 2014 on visitor visas. The applications for Protection visas were made on 16 February 2015.
The application forms for the protection visa indicate the following in relation to the applicant. The applicant was born on [a particular date] in [County 1], Jinzhou City, Hubei Province, China. The applicant indicates his religion as Falun Gong. The applicant was married [in] 1996. The applicant’s father is deceased. The applicant lists his mother, a son and [a number of siblings] living out of Australia. The applicant calls his relatives on the phone sometimes. The applicant has no personal contacts in Australia. The applicant departed China legally.
From 1994 until August 2002 the applicant lived at an address in [Town 1], [County 1], Jinzhou City, Hubei Province. From August 2002 until May 2013 the applicant lived at an address in Wenzou City, Zhejiang Province. From May 2013 until October 2014 the applicant lived at an address in Jinzhou City. From October until November 2014 the applicant lived again in [Town 1], [County 1], Jinzhou City, Hubei Province.
The applicant completed his education in [a particular year], completing Middle School. From [that year] until 2002 the applicant was a farmer. From 2002 until 2013 the applicant was a worker in a small factory workshop making [particular goods]. From 2013 until 2014 the applicant was the owner of [a particular business] which is indicated as retail, in which the applicant was self-employed.
The applicant provided a written statement as part of the application for the protection visa which provides as follows (not corrected for spelling or grammar). The second named applicant referred to the same statement to explain why she was seeking protection:
I was cruelly abused by the government and discriminated against by society for practicing Falungong when I was in China. There I suffered fears, anxiety and humiliation all day long. Unable to see any light at the end of the tunnel, my wife and I decided to come to Australia for a living. We are filing an application for protection and begging the Australian Government to consider our case more favorably on a humanitarian basis . The key facts about us are as follows:
When in China, we were peasants and began to practice Falungong in the hope of improving our health. My father was persecuted to death because of his past experience of practicing Falungong . On his death bed, he left me a book titled Dharmacakra Pravartan (Zhuan Falun), which was too difficult for me to read. As a half illiterate, I needed a more educated person to help me read it.
In 2013, I met a fellow practitioner of my father's, to whom I sometimes turned for advice. Later on, I and some of my friends invited him to be our instructor, and all of us benefitted much in practicing Falungong secretly together. On [a particular date in] 2014, we were practicing together at his home after supper when the security police suddenly assaulted us and confiscated all the Falungong books. Actually, it was a neighbor of his that had reported the gathering to the police. The informer harbored a deep resentment against him over some disputes that happened long ago.
All of us were brought to the police station by the security policemen, where they blindfolded me and gave me a good beating using electric batons before they started to interrogate me. I had to admit practicing Falungong, but I argued that I did so with the only purpose of improving myself physically and mentally. I argued I hadn't done any harm to anybody, so I shouldn't have been arrested, yet the policemen insolently claimed that all Falungong activists were the devils that were endangering the social stability, and therefore should be wiped out. So I was sentenced to detention for [a number of] weeks. Every day since then, I had been left to half starve. In the daytime, I was made to watch the videos that branded Falungong as an evil cult, and in the evening, I was made to write my own confessions.During the whole detention, I was greatly abused.
Before I was bailed out, I had to sign two statements: a statement of repentance and a statement of promise. After I was bailed out, the security police demanded me to report myself to them once every two weeks. Once, I failed to do so and they came to search my house. As a matter of fact, I was escaping their harassment by hiding myself at my friend's home. Finally, I was caught anyway.
To put me under control, the police coerced my wife and two of my family members (my mother and my [sister]) to stand bail for me. So if jumped the bail, they would be involved. My wife was a simple-minded woman, and if she was corned, the first thing that came to her mind was to flee to other places for a living. But the police had ordered us that we couldn't leave our hometown unless permitted by them. Otherwise, we would be arrested at once.
It was difficult for me to survive because of my background as a Falungong activist. A fellow practitioner of mine was fired by his employer after he was released from his detention. He was discriminated against in the job market and no one would employ a person with such a background. I felt I was discriminated and isolated in the society and I felt very gloomy about our prospect.
My mother and my [sister] were both worrying about me but couldn't find me a way out. So they advised me going abroad (sine I had prepared my passport before the incident merely for a purpose of going abroad by joining a tourist group but I cancelled it due to something unexpected occurred ) , but I wouldn't like to live alone in a foreign country. Finally, I decided to go abroad with my wife. By pulling a few strings, my [sister] got ready our visa, all formalities and especially the airline tickets for us. But for her help, we wouldn't have succeeded in coming to Australia. Blessed by Dafa and our Master, we arrived in Australia sound and safe. However, it meant disaster for my mother's home. The policemen came to my mother's home several times, demanding for us to be remanded at once.Finally, the case ended up with the forfeiture of my sister's [bail].
I believe Australia is a humanitarian country, where Falungong, among other religions, is to be protected instead of being discriminated against. On the other hand, the Chinese security police have never lessened its harassing policy against our family members. My [sister] has said the possibilities can not be ruled out that the security police will exert more pressure on my mother. Apart from this, I'm also worrying about my son's future and I don't know what to do about it. The language, environment and other things here in Australia are all strange to us but we are working hard to learn more about this land while practicing Falungong. Though we are meeting with a lot of difficulties here, we will try our best to adapt ourselves to the local life in this country. Compared with the dangers we will face in China, we think those difficulties are nothing to us and we prefer to stay here in Australia. So we are hoping the Australian Government can show us sympathy and grant us the protection we need badly.
Provided is a ‘witness statement’ of [Mr A], undated, who indicates that he is an Australian permanent resident who came to Australia in 2011. He has been practising Falun Gong for more than three years. [Mr A] got to know the applicant in March 2015. They both come from the same town and both practised Falun Gong. The applicant joins the group practice located at [a particular location]. [Mr A] wishes to be a witness to prove the belief of the applicant in Falun Gong. The applicant is a committed practitioner and a person of credibility.
Findings and assessment
The mere fact that a person claims fear of persecution or harm for a particular reason does not establish either the genuineness of the asserted fear or that it has a real chance or real risk of arising, 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 and Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal is satisfied that both applicants are citizens of China and accordingly their claims will be assessed against China.
The Tribunal has had no opportunity to question the applicants about their claims in order to further explore the detail of the claims and to test credibility. Based on the claims made, and in particular the applicant’s detailed response to the questions of the delegate of the Minister, there were many questions that the Tribunal wished to raise with the applicants in a hearing in order to satisfy itself that the claims made by the applicants, and supporting statements, reflected the truth of the situation.
The Tribunal hearing is the crucial means by which the Tribunal tests claims and credibility. In the absence of the applicants agreeing to attend a hearing, the Tribunal is unable to be persuaded as to any substantive claims by the applicants.
The Tribunal is not satisfied that the applicant’s father was persecuted to his death because of his practice of Falun Gong. The Tribunal is not satisfied that the applicant was practising Falun Gong in China and/or was detained by authorities for practising at the home of a fellow practitioner in 2014 as claimed. The Tribunal is not satisfied that the applicant was mistreated or was subject to re-education during detention as claimed. The Tribunal is not satisfied that the applicant was made to sign a statement of repentance or a statement of promise has claimed. The Tribunal is not satisfied that the applicant was made to report to police every two weeks as claimed. The Tribunal is not satisfied that the applicant failed to report as requested causing authorities to come and search the applicant’s home. The Tribunal is not satisfied that the applicant was hiding at a friend’s home but was caught.
The Tribunal is not satisfied that the applicant was bailed from detention by his mother and sister. The Tribunal is not satisfied that the applicant was told by authorities not to leave his home town unless authorised. The Tribunal is not satisfied that the applicant left China and came to Australia as a result of these issues, to flee difficulties and harm from authorities as a result of a desire to practice Falun Gong. The Tribunal is not satisfied that authorities have subsequently come to the applicant’s home in China or that the applicant’s sister had to forfeit bail for the applicant.
The Tribunal is not satisfied that the applicant has demonstrated a true commitment to Falun Gong in Australia, or that he would be a Falun Gong practitioner on return to China.
The Tribunal has taken into account the supporting statement by [Mr A] indicating that the applicant has been a Falun Gong practitioner in Australia. However, such a statement, on its own, and without the opportunity to question the applicant about his belief or his practices, does not persuade the Tribunal of the truth of the matters indicated.
Given these findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm for any of the reasons claimed. Given that the second named applicant has referred to the same written statement as the applicant as reflecting her claimed fears, the Tribunal is not satisfied that the second named applicant faces a real chance of serious or significant harm derivative of the matters claimed by the applicant.
In summary, the Tribunal is not satisfied there is a well-founded fear of the applicants facing persecution for a refugee criterion reason for any of the reasons claimed.
In summary, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to China, there is a real risk that they will suffer significant harm.
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
David McCulloch
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)    the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)    conceal an innate or immutable characteristic of the person; or
(c)    without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)    the persecution must involve serious harm to the person; and
(c)    the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)    a threat to the person’s life or liberty;
(b)    significant physical harassment of the person;
(c)    significant physical ill‑treatment of the person;
(d)    significant economic hardship that threatens the person’s capacity to subsist;
(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)    disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)    a characteristic is shared by each member of the group; and
(b)    the person shares, or is perceived as sharing, the characteristic; and
(c)    any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)    the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)    protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)    the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)    the person can access the protection; and
(b)    the protection is durable; and
(c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36 Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

[2018] AATA 2902

2 July 2018

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness