1516465 (Refugee)

1516465 (Refugee) [2018] AATA 718 (27 February 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1516465
COUNTRY OF REFERENCE:                  China
MEMBER:Nathan Goetz
DATE:27 February 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.
Statement made on 27 February 2018 at 3:05pm

CATCHWORDS
Refugee – Protection visa – China – Religion – Falun Gong – Christian – Conversion to Christianity in Australia – Proselytising – Fear of detention

LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J-5LA, 36, 65, 423, 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

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 applicants protection visas under s.65 of the Migration Act 1958 (the Act).
Applicant 1 is [name] was born on [date]. On [date] he married [Applicant 2] who was born on [date]. On [date] they had a daughter Applicant 2 named [Applicant 3]. The three applicants are citizens of the People’s Republic of China (China) and come from the Shandong Province.
The three applicants arrived in Australia [in] January 2015 on [a temporary] visa. The applicants applied for the protection visas on [in] January 2015. The basis of the protection visa application was that Applicant 1 was a Falun Gong practitioner who could not return to China. Applicant 2 and Applicant 3 were included in the application as members of the same family group, although it is noted that in the interview his wife indicated that since her arrival in Australia she had started practising Falun Gong for a period of about three months (at the time of the delegate interview).
The applicants were interviewed by the delegate [in] September 2015. The delegate refused the protection visa applications [in] November 2015 and the applicants applied to the Tribunal on 30 November 2015 for a review of that decision. The applicants submitted a copy of the delegate’s decision as part of the review application.
On 17 January 2018, the applicants appeared before the Tribunal to give evidence in support of their claims. They were assisted by a Mandarin interpreter. The Tribunal noted that since the delegate decision, [Applicant 1] and [Applicant 2] had another daughter named [name] who was born on [date]. Also present for the hearing was their registered migration agent [named] and a number of witnesses who had been called by the applicants in support of their applications.
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 themself of the protection of that country: s.5H(1)(a). 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.
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 and Border Protection – 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
For this matter, the relevant country information assessment is the DFAT Country Information Report on the People’s Republic of China dated 21 December 2017.
CONSIDERATION OF CLAIMS AND EVIDENCE
Protection Visa Application
The protection visa applications dated [in] January 2015 which were submitted to the delegate included a three page statement from Applicant 1 which had been translated from Mandarin to English. This statement outlined how Applicant 1 had become involved in Falun Gong in China and his previous detention by the Chinese authorities because of his Falun Gong practice. In the delegate interview of [September] 2015, the applicant spoke in support of these claims.
Material received by the Tribunal prior to the Tribunal Hearing
Under the cover of letter and submissions from [the agent] dated 10 January 2018, the Tribunal received an eight page written statement from Applicant 2 which had been translated from Mandarin to English. In this statement, Applicant 2 stated that she, Applicant 1 and Applicant 3 had converted to Christianity and were fearful of returning to China due to their religious belief. Both Applicant 1 and 2 signed the statement.
Included in the submissions were the following documents:
·Certificate of Baptism for Applicant 1
·Certificate of Baptism for Applicant 2
·Certificate of Dedication for Applicant 3
·Supporting letter which had been signed by [many named people] who were members of the [Church 1] in support of the applicants’ claims
·Supporting letter from [Ms A]
·Supporting letter from [Ms B]
·Supporting letter from [Leader A] of [Church 2]
·Thirteen photographs of the applicants engaging in Church activities
·Supporting letter from [Ms B]
·Supporting letter from [Leader B]
·Global Legal Monitor extract from the Library of Congress on the Revised Regulations on Religious Affairs for the People’s Republic of China dated 9 November 2017.
Tribunal Hearing
At the Tribunal hearing on 17 January 2018, Applicant 1 and Applicant 2 gave evidence in support of their claims. Applicants 1 and 2 both gave evidence of behalf of Applicant 3, as Applicant 3 is a child.
The Tribunal also heard oral evidence from [Ms B], [and four named people], all of whom were members of [Church 1], in support of the applicants’ claims.
Material received by the Tribunal subsequent to the hearing
On 5 February 2018, the Tribunal received an additional letter in the form of a statutory declaration from [Ms A].
Outline of Claims
From all the evidence presented by the applicants, their claims can be identified as follows:
The applicants claim that they are Christians who are members of the [Church 1] in [suburb]. In September 2015, Applicant 2 met [Ms A] at a local park near the applicants home. They met because Applicant 3 would play with [Ms A’s] daughter.
[Ms A] is a devoted Christian and gradually introduced Applicant 2 to Christianity by talking about her beliefs. Applicant 2 started to attend [Church 1] with [Ms A] and started to attend bible studies sessions.
Applicant 2 started to talk to Applicant 1 about Christianity, and converted him from his previous practice of Falun Gong after a few months. All the Applicants attended Church and bible studies at various homes of fellow Church members. Applicants 1 and 2 were baptised at the [Church 1] [in] February 2016, and Applicant 3 was dedicated to the Christianity [in] February 2016 (as baptism is reserved for people who make an independent choice).
In addition to Church attendances, the applicants have been involved in proselytising by spreading the gospel to strangers, handing out [Church 1] leaflets, and participated in public opposition to the Marriage Equality debate, in addition to regular church attendance.
The applicants state that they cannot attend a registered Three Self-Patriot Christian Church in China because they are true followers of Christ, and those churches are controlled by the Government and the Christian message is distorted because of this control.
The applicants further state they will not be able to freely practice their Christianity in China if they were to return, and if they did so, they would be persecuted by the Chinese government.
The issue in this case is whether the applicants are genuine Christians and if they are, whether they will face persecution if they are returned to China. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Findings, Reasons and Analysis
On an initial look at the claims, it would be reasonable to expect that the Tribunal would be sceptical of them. These claims have arisen since the delegate decision, and involve a fundamental change to the applicants’ claims. The registered migration agent’s written submission acknowledged that the applicants were required to present their case in full to the delegate and that the Tribunal may draw unfavourable inference against the credibility of their new claims as a result of the failure to do unless the applicants satisfy the Tribunal that there was a reasonable basis for not doing so. Further, the fact that Applicant 1 wrote to the Tribunal on 30 November 2015 as part of the review application stating that he was a genuine Falun Gong practitioner and wanted the Tribunal to reconsider the delegate’s decision, made the Tribunal very sceptical about his claims particularly.
Although s.423A of the Act requires the Tribunal draw an inference unfavourable to the credibility of the claim unless the Tribunal is satisfied that there is a reasonable explanation for failing to do so, is not applicable to this case because the review applicants lodged their protection visas [in] January 2015, and s.423A only applies to applications made on or after 14 April 2015. That being said, the Tribunal is entitled to be suspicious about any new claims being raised when there has been previous opportunity before a delegate to do so.
In this case, there is a reasonable explanation for the fact that new claims were raised before the Tribunal, namely a conversion to Christianity subsequent to the delegate interview. The applicants have satisfied the Tribunal that they are genuine Christians and the Country Information supports their claim that they will be persecuted if they return to China.
Applicants 1 and 2 gave consistent evidence about how they came to convert to Christianity, what Christianity meant to them, demonstrated a sophisticated understanding of Christianity and demonstrated their regular practice as Christians. It is not unreasonable that the Applicant 1 changed his faith through the involvement of his wife in Christianity. The evidence was that for Applicant 1, the conversion to Christianity was a gradual process due to his wife, and Applicant 1 told the Tribunal that he became a Christian when attending Church at Christmas 2015. This was subsequently followed by a baptism and regular Church attendance.
The evidence was that the Chinese [group] of the [Church 1] is a small group consisting of about 50 to 70 members and a lack of regular attendance would be noticed by members. The oral evidence given to the Tribunal by those who attended the hearing in support of the applicants was that the applicants regularly attend services and bible studies, as well as participating in proselytising activities, which included bringing Applicant 3. The Tribunal has no reason to doubt the evidence of those members who gave evidence in support of the applicants about their observations of the regular attendance of the applicants. The evidence was that the applicants have been regularly attending Church since late 2015.
As noted in the DFAT Country Report, public religious proselyting is prohibited, and religious practice in China is only possible within state-sanctioned boundaries, as long as such practices do not challenge the interests or authority of the Chinese government, and unregistered Protestant Churches risk adverse treatment by authorities due to their illegal status. The applicants gave evidence that they will not attend a state sanctioned Church due to government control over teachings, and stated that they will continue to proselytise if they are returned to China. The Tribunal accepts that a Christian who proselytise in a public way is at risk of a threat of deprivation of liberty, and that those who attend an unregistered church may be at risk of adverse action by the Chinese authorities.
The Tribunal accepts that the applicants fear persecution on the basis of religion, which is one of the convention grounds. The Tribunal is satisfied that there is a real chance that if the applicants returned to China, they would be persecuted for their religious beliefs if they continued practising their Christian faith in the same way they practice their faith in Australia. The applicants will be liable to arrest and detention by authorities for doing no more than publically proselytising their faith, and will be liable to detention from the authorities if they are discovered attending house churches. The Tribunal finds that arrest and detention by authorities in these circumstances constitute serious harm, because it constitutes a significant physical harassment of the person, and it involves systematic and discriminatory conduct.
Conclusion
For the reasons given above the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants satisfy the criterion set out in s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.
Nathan Goetz
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.
..
36Protection 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 718

27 February 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice