1602406 (Refugee)

[2018] AATA 3691

1602406 (Refugee) [2018] AATA 3691 (21 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1602406

COUNTRY OF REFERENCE:                  China

MEMBER:Nathan Goetz

DATE:21 August 2018

PLACE OF DECISION:  Sydney

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

Statement made on 21 August 2018 at 11:30am

CATCHWORDS
Refugee – Protection visa – China – Religion – Yiguandao – Religious activities – Fear of detention – rejection by family – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J-5LA, 36, 65, 426A, 438, 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 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant arrived in Australia on 18 December 2014 on [a temporary] visa. He applied to the department for a protection visa on 17 March 2015.

3. The applicant attended an interview with the delegate on 15 January 2016 and on 29 January 2016, the delegate refused to grant the protection visa. The applicant subsequently lodged a review application with the Tribunal on 26 February 2016.

4. On 16 July 2016, the applicant wrote to the applicant’s registered migration agent advising that it had considered all the papers related to the applicant’s protection visa application but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present argument at a three hour hearing scheduled to commence at 8.30am on 21 August 2018.

5. On 31 July 2018, the agent wrote to the Tribunal advising that he could not locate the applicant. The agent wrote that he tried to make contact with the applicant over the phone and via email without success. He wrote that the applicant’s phone appeared to be disconnected and the applicant had not responded to any emails. The agent wrote that he would continue to try and locate the applicant and would advise the Tribunal further if he were to receive any instructions from the applicant.

6. On 14 August 2018, the agent again contacted the Tribunal. The agent advised the Tribunal that he could not locate the applicant. The agent wrote that he had tried to call the applicant over the phone and sent him messages electronically, as well as sending a letter via Express Post to the applicant’s residential address requesting that the applicant contact the agent. The agent wrote that he had confirmation that this letter was delivered on 6 August 2018. The agent wrote that he had not had any response from the applicant and had tried everything he could to get a hold of the applicant.

7. The hearing invitation sent by the Tribunal read that if the applicant did not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action. The applicant did not appear at the hearing. A check of the Tribunal’s records indicates that the applicant was sent SMS reminder messages about the hearing and that those messages bounced back. The applicant has not notified his agent or the Tribunal of changes in his contact details and it is clear that the applicant is uncontactable.

8. 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.

   CRITERIA FOR A PROTECTION VISA

9. 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.

10. 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.

11. 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).

12. 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.  

13. 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

14. 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.

    PRELIMINARY ISSUE – NON-DISCLOSURE CERTIFICATE

15. On the departmental file, there are two certificates and notifications regarding the disclosure of certain information under s.438 of the Act.

16. The first certificate reads that disclosure of information contained in folio 78 of the departmental file would be contrary to the public interest because it related to an internal working document and business affairs.

17. The second certificate reads that disclosure of the information contained in folio 87 of the departmental file should not be released because it was given to the department in confidence or contained information about a third party. The certificate stated that it should not be disclosed to the applicant because it contains a document affecting a person’s privacy.

18. The Tribunal does not accept that these are valid certificates.

19. The information contained in Folio 78 was a completed one page form which was an identification test used by the department on the applicant. Internal working documents are not a category that attracts public interest immunity and in any event, the certificate does not identify what harm would be caused by the disclosure of this information.

20. The information contained in Folio 87 was an email from the applicant’s registered migration agent to a departmental officer advising the officer that the agent was the applicant’s authorised representative and that he would be attending the departmental interview with the applicant. The agent provided his contact details should the department need to contact the agent. The exact same contact details for the agent are contained in Form 956 which has been signed by the applicant. In these circumstances, the Tribunal is not satisfied that there is any expectation of confidentiality on behalf of the agent.

21. In any event, the information which is subject to these certificates neither helps nor hinders the applicant’s claims and does not go to a fact in issue. The Tribunal has paid no attention to the information because it is not relevant.

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. The Tribunal is satisfied on the evidence before it that the applicant is [name] who was born on [date] in Shangzhi City, Heilongjiang Province, in the People’s Republic of China. The country of reference for this application is China because the applicant is a Chinese citizen who does not have any right to reside in a third country.

23. The issue in this case is whether the applicant meets the refugee criteria, or the complimentary protection criteria. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

24. The applicant’s claims for protection are contained in his written protection visa application which included a nine page statement by the applicant in Mandarin with an English translation.

25. The applicant claims that he is a Yiguandao practitioner who is married and has [children]. His wife and children remain in China and they live with the applicant’s parents in [Shandong] Province, in the People’s Republic of China.

26. In his written application, the applicant provided a document which he identified as his Yiguandao membership, as well as two photographs which he identified as being photographs taken at [a named] Buddhist Temple. The applicant wrote that he would provide later supporting letters from his fellow cultivators, and supporting documents to show that he is a Yiguangdao cultivator, but there is nothing on the departmental file to indicate that those documents were ever provided.

27. The applicant was not a Yiguangdao practitioner before coming to Australia. The applicant wrote that after arriving in Australia a woman stroke up a conversation with him at a [Shopping] Centre who introduced him to the [named] Buddhist Temple in [Australia].

28. The applicant stated that he was not initially interested in Yiguandao but after losing his wallet [in] January 2015, he prayed and his wallet was returned. He returned to the Temple to express this thanks [and] attended a lecture that same day. Since that time, he firmly believed in Yiguandao and has attended many activities since then, including listening to preaching in the Buddhist Temple, attending dharma assembly, offering worship with incense as well as eating vegetarian food. [In] March 2015, he participated in a Tao enlightening ceremony.

29. He claimed that he could not return to China because of his religion. If he did return, he would suffer from persecution and coercion, and will be sentenced to imprisonment. He wrote extensively about the historical oppression of Yiguandao by the Chinese government. He wrote that if he was to return to China, he would set up an altar at his home and it would not be possible for him to keep his religion secret, as he has lots of relatives in his home with different religious and political backgrounds, and he will be advised to ‘retreat’ from Yiguandao.

30. 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 is it is for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are established. Although the concept of an onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case will have to be supplied by the applicant, in as much detail as necessary to allow the decision maker to establish the relevant facts. A decision-maker is not required to make the applicant’s case for them, nor required to accept uncritically any and all the allegations made by the applicant.

31. In this case, the Tribunal has problems with the applicant’s claims. The applicant’s protection visa application is dated 14 March 2015 and is almost three and a half years old. The Tribunal is not aware whether the applicant continues to practice Yiguandao in Australia and is unable to determine that the applicant is a genuine practitioner of Yiguandao without oral evidence from the practitioner. The Tribunal is also not in a position to ascertain whether the applicant’s family in China are presently supportive of the applicant’s religious practice, nor is the Tribunal in a position to determine whether the applicant is a person of interest to the Chinese authorities because of his claimed involvement in Yiguandao. The Tribunal cannot make a determination about what the applicant will do if he is returned to China without hearing from the applicant.

32. The Tribunal is not able to be satisfied that the applicant faces a real chance of serious harm because of his race, religion, nationality, political opinion, or membership of a particular social group in China, nor that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm.

33. 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 s.36(2)(a). For the same reasons as above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

34. 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

35. The Tribunal affirms the decision not to grant the applicant a protection visa.

    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.

    …