1600644 (Refugee)

[2018] AATA 4953

1600644 (Refugee) [2018] AATA 4953 (13 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1600644

COUNTRY OF REFERENCE:                  China

MEMBER:James Silva

DATE:13 November 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 13 November 2018 at 6:01pm

CATCHWORDS

REFUGEE – protection visa – China – religion – Yiguandao (also written ‘I-Kuan-Tao’) – applicant not in Australia – no response to invitation to hearing – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 36
Migration Regulations 1994 (Cth), 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. The applicants are from the People’s Republic of China (China, PRC), a woman in her [age] and her son, a man in his [age].

2. The applicants first arrived in Australia [in] January 2007, as the holders of Partner visas; the second-named applicant accompanied his mother as her dependant. They applied for Protection (Class XA) visa on 28 January 2015. On 23 December 2015, the delegate of the Minister for Immigration refused the application pursuant to s.65 of the Act.

3. This is an application for review of that decision.

4. The applicants were invited to a Tribunal hearing on 13 November 2018, but did not attend.

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

   Criteria for a protection visa

6. Under s.65(1) a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied. In relation to the first-named applicant, s.36(2) of the Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia. This means that a protection visa may only be granted if the applicant is in Australia.

7. In relation to the second-named applicant, the issue is whether he meets the refugee criterion, and if not, whether he is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.

   The first-named applicant

8. The Department of Immigration’s movement records indicate that the first-named applicant is not in Australia. It appears that she left Australia [in] March 2018. The Tribunal wrote to the applicant advising that its records showed that she is not in Australia and therefore could not be granted a protection visa and inviting her to comment on the information. The Tribunal received no response to this letter.

9. The Tribunal is satisfied from the circumstances set out above that the first-named applicant is not in Australia. Therefore, she does not satisfy the requirements of s.36(2) and cannot be granted a protection visa.

10. Having reached this conclusion, it is not necessary to consider her substantive case for the grant of the visa.

    The second-named applicant

    Claims and evidence

11. The second-named applicant (referred to as ‘the applicant’ in the remainder of this decision) is a [age] year old unmarried man from Guangdong, China. He claims to be a speaker of Chinese and English, and of Han Chinese ethnicity. He gives his religion as Yiguandao. He attended [school] in Zhuhai, Guangdong until [year], and then continued his education in Australia. At the time of application in January 2015, he was enrolled at [named education institute] in [Australian City 1].

12. At the time of application, the applicant held a PRC passport issued in [2010], and valid for ten years. Department records indicate that he currently holds a Student visa valid until September 2019.

13. The applicant claims, and the Tribunal is satisfied on the basis of the documentary evidence that he provided, that he is a Chinese (PRC) national. China is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.

14. The applicant completed Form 866C of the application form, as a person who has his own claims for protection. However, he left blank the questions inviting him to state his reasons for seeking protection. He relies primarily on his mother’s claims. These are, in summary:

    She had contact with Yiguandao (also written ‘I-Kuan-Tao’) before her first visit to Australia. Her parents had an altar when she was young. During the Cultural Revolution (1966-1976, hence before the applicant’ was born), the Chinese Communist Party destroyed the family’s altar. The first-named applicant learned that they regarded it as an evil cult, calling its members the ‘five scum of society’. Her family suffered persecution for their beliefs.

    From around 2000, some preachers started coming to her hometown, and her family started practicing Yiguandao again, in secret.

    Meanwhile, in Australia, the first-named applicant came across some Yiguandao adherents. She obtained some leaflets, read them assiduously, and started to meet with some fellow adherents.

    In [2014], local government officials arrested and ‘humiliated’ members of her family in the applicants’ hometown, and seized their Taoist items. The first-named applicant’s brothers and sisters posted bail for the release of their mother.

    In November 2014, the first-named applicant was introduced to a Taiwanese-run Taoist altar in Australia. She has found great comfort in her Yiguandao practice, and is seeking protection ‘to defend [her] faith’.

15. The evidence before the Tribunal includes the following material that is potentially relevant to the applicant’s claims:

    §  The completed protection visa application form.

    §  The first-named applicant’s statement of claims (insofar as they are relevant to his circumstances, see above).

    §  The applicant attended a Department interview together with his mother on 16 November 2015. A recording of the interview is on the Department file, and a summary of both applicants’ evidence is contained in the delegate’s decision record. The applicants provided a copy of the decision record with the review application.

    §  A partial photocopy of the applicant’s PRC passport.

    §  The delegate’s protection visa assessment record (‘delegate’s decision record’) of 23 December 2015.

    §  The applicant’s application for review, attached to which was a copy of the delegate’s decision record.

16. At the interview on 23 December 2015, the applicant was present for much of the discussion but the delegate interviewed the first-named applicant separately about her practice, and later the applicant (in his mother’s presence). As noted in the decision record, he said that he goes with his mother to the temple most Saturdays, but that he now gives priority to his university studies, and he could not recall where the temple was. He gave some basic information about Yiguandao.

17. The delegate also asked the applicants about their two return trips each to China in 2012, which the first-named applicant explained were due to family circumstances.

18. The first-named applicant stated that, if she returned to China, she would practice Yiguandao, although in private only. She was worried that neighbours might nonetheless detect it, and inform on her. She feared that this could result in her being monitored or detained. The applicant appeared to associate himself with these claims.

19. The delegate rejected the applications on credibility grounds, finding that the applicants were not Yiguandao practitioners. 

20. On 16 October 2018, the Tribunal wrote to the applicants advising that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited them to give oral evidence and present arguments at a hearing to be held on 13 November 2018. The invitation advised that if they did not attend the scheduled hearing and a postponement was not granted, the Tribunal may make a decision on the review without further notice or taking further action to enable them to appear before the Tribunal. The letter was sent by email, to the address for applicants’ representative (registered migration agent) and authorised recipient as notified in the review application. 

21. The Tribunal received no response to the invitation letter. The applicants did not appear before the Tribunal on the day and at the time and place they were scheduled to appear. They have not contacted the Tribunal by the close of business (6pm) on 13 November 2018, to seek a postponement of the hearing, or to provide any reason why they could not attend at the scheduled time. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make a decision on the review without taking any further action to enable the applicants to appear before the Tribunal.

22. Also on 16 October 2018, the Tribunal wrote to the applicants pursuant to s.424A of the Act, inviting them to comment on or respond to information that would be the reason, or part of the reason, for affirming the decisions under review. The Tribunal invited them to comment or respond in writing, by 30 October 2018. The information was that the first-named applicant departed Australia on 13 March 2018. In relation to the second-named applicant, the Tribunal explained the relevance of this information as follows:

    This information is relevant to the review because, depending on your comments/
    responses, it may indicate that your mother’s statement that she fears persecution if she returns to China and continues to practice I-Kuan-Tao is not true, and that neither your mother nor you are I-Kuan-Tao practitioners.

    If the Tribunal finds that neither you nor your mother are I-Kuan-Tao practitioners, and you do not face a risk of persecution or significant harm in China for any other reasons, the Tribunal will conclude that Australia does not have protection obligations in respect of you, and affirm the decision under review.

23. The Tribunal received no reply to this letter.

    Consideration of claims and evidence, and findings

24. The Tribunal has before it only the first-named applicant’s statement prepared in January 2015; the applicant’s oral evidence at the Department interview in December 2015; and the delegate’s decision record. The information provided is limited in scope and not up-to-date. Moreover, the delegate’s decision record (which the applicants submitted to the Tribunal) identifies a number of credibility concerns, in particular about the applicant’s knowledge of Yiguandao, his practice and commitment, and whether he has any genuine fears relating to this. The first-named applicant’s departure from Australia in early 2018 (as noted in the Tribunal’s s.424A letter) raises further concerns that the Tribunal would also need to resolve in assessing the second-named applicant’s claims, and his need for protection.

25. The Tribunal is unable to be satisfied on the available material, and taking also into account the adverse information put to the applicant, that he is or has ever been a Yiguandao practitioner; that he is associated with any Yiguandao practitioners (such as the first-named applicant, his mother, or any other family members); that he has been adversely affected by the treatment of family members or friends in China; or that he has any genuine fears of returning to China. 

26. The applicant has not claimed to fear harm upon returning to China for any other reason, and no other claims are apparent on the information before the Tribunal.   

    Refugee criterion

27. In light of the above assessment, regarding the applicant’s adherence to or association with Yiguandao, the Tribunal is unable to be satisfied that he faces a real chance of harm arising from his or his family’s religious practices, or for any other reason. It is therefore not satisfied that he has a well-founded fear of persecution for one of the reasons enumerated in s.5J(1) should he return to China.

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

    Complementary protection

29. 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). However, based on the information before the Tribunal, and the assessment of facts above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China there would be a real risk that he will suffer significant harm.

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

31. 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

32. The Tribunal affirms the decision not to grant the applicants protection visas.

    James Silva
    Member

    
    

    ATTACHMENT – RELEVANT LAW

    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). 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 – 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.