1516126 (Refugee)

[2019] AATA 187

1516126 (Refugee) [2019] AATA 187 (1 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1516126

COUNTRY OF REFERENCE:                  China

MEMBER:Paul Millar

DATE:1 February 2019

PLACE OF DECISION:  Sydney

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

Statement made on 01 February 2019 at 5:39pm

CATCHWORDS

REFUGEE – protection visa – China – religion – I-Kuan-Tao – delay in applying for protection – credibility issues – decision under review affirmed

PRACTICE AND PROCEDURE – failed to attend hearing – applicant properly notified by Tribunal

LEGISLATION

Migration Act 1958, ss 5H, 5J, 5K-5LA, 36, 65, 426A, 499

Migration Regulations 1994, Schedule 2

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 and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).  The applicant, who the Tribunal finds to be a citizen of China, applied for the visa on 6 November 2014 and the delegate refused to grant the visa on 28 October 2015.[1]  

   [1] The Tribunal's finding on citizenship is based on copies of pages from the applicant’s Chinese passport which appear at folios 7-8 of the Department file.

   RELEVANT LAW

2. 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.

3. 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).

4. 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.

5. 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’).

6. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of 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 (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   FINDINGS

7. For the following reasons, the Tribunal concludes that the decision under review should be affirmed. According to his evidence to the Department, the applicant claims protection on the ground that he follows I-Kuan-Tao.[2]  By letter dated 23 November 2018, the Tribunal advised the applicant that it was unable to make a favourable decision on the material before it.  The Tribunal advised the applicant that he was therefore invited to appear before it to give evidence and present arguments relating to the issues arising in his case. The Tribunal advised the applicant that a hearing would be held on 15 January 2019 at 12.30pm.

   [2] The applicant's evidence to the Department comprises the contents of the protection visa application forms; his written statement lodged with his application (see folios 37-38 of the Department file) and his evidence at his interview with the delegate for which there is an audio recording on the Department file and to which the Tribunal has listened.

8. The Tribunal’s letter was sent to the email address specified by the applicant in his review application form as the email address to which he wished correspondence about his review application to be sent.  In his review application form, the applicant stated that he agreed to the Tribunal sending correspondence to him by email.  The applicant did not respond to the Tribunal’s hearing invitation letter.  The applicant did not appear before the Tribunal on 15 January 2019 and he has not subsequently contacted the Tribunal to explain his absence.

9. The Tribunal is satisfied that the applicant was properly notified of the Tribunal hearing and that he has failed to take the opportunity to appear before it.  Therefore, the Tribunal now proceeds to determine the review based on the information before it about the applicant’s protection claims.  The Tribunal records at the outset that the delegate held concerns about the credibility of the applicant’s evidence.  The applicant claims that his parents were followers of I-Kuan-Tao in China.  He made claims about harm his family suffered on that basis both before and after he left China.  To be able to determine whether these claims are true, the Tribunal needed to have the opportunity to take evidence from the applicant on those matters and question him closely about them.

10. The applicant claimed to follow I-Kuan-Tao himself.  The Tribunal needed the opportunity to take evidence from the applicant about that to determine whether or not he actually does follow this religion or belief system.  The applicant claims that Chinese authorities harmed his parents due to the applicant having someone take a book about I-Kuan-Tao to China, Chinese authorities arresting that person and then harming the applicant’s parents as a result.  The Tribunal needed the opportunity to question the applicant closely about these particular events to determine whether or not his evidence about them is credible.

11. The applicant applies for protection on the basis of being a follower of I-Kuan-Tao but did not make his application until some years after becoming a follower, according to his evidence to the Department, in 2011.  The Tribunal needed to question the applicant carefully about this apparent delay as it could suggest that he is not genuinely in fear of harm in China.  Overall, to determine whether or not the applicant engages Australia’s protection obligations under the Refugees Convention, the Tribunal needed to have the applicant appear before it so that it could question him closely about his protection claims to determine whether they are true.  In the absence of a hearing, the Tribunal is unable to be satisfied that the applicant does hold a well-founded fear of persecution based on a convention ground. For the same reason, the Tribunal is unable to be satisfied that the applicant meets the complementary protection criterion.

    CONCLUSIONS

12. 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).

13. 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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

14. 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

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

    Paul Millar
    Member