1603784 (Refugee)

1603784 (Refugee) [2018] AATA 4679 (3 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1603784
COUNTRY OF REFERENCE:                  China
MEMBER:Roslyn Smidt
DATE:3 October 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 03 October 2018 at 2:28pm

CATCHWORDS
REFUGEE – protection visa – China – religion – Christian – Muslim – race – ethnic Hui – meat processing practices – religious practices – bringing food to restaurant – delay in applying for protection – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J-5LA, 36, 65, 438, 499
Migration Regulations 1994, Schedule 2

CASES
MZAFZ v MIBP [2016] FCA 1081
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 23 February 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who is a citizen of China, applied for the visa on 9 March 2015. The delegate refused to grant the visa on the basis that he was not satisfied that the applicant had given credible evidence regarding his fears and in any event found that even if he was a Muslim of Hui ethnicity the evidence did not suggest that he faced a real chance of suffering serious or significant harm if he returned to China.
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). 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.
BACKGROUND
The applicant is a married man from Heilongzhang Province in China. He has one daughter. Prior to coming to Australia he owned a restaurant. He arrived in Australia on a [temporary] visa [in] February 2014. This visa expired [in] May 2014. The applicant failed to depart Australia. He lodged a protection visa application on 17 March 2015.
The applicant’s wife arrived in Australia about three months later. At the time of his interview with the Department of Immigration he said that he was separated from his wife. At the hearing he said that they were once again living together. His daughter remains in China with his wife’s family.
S438(1)(A) ISSUES
A document entitled Certificate and notification regarding the disclosure of certain information under s438 of the Migration Act 1958 is attached to the applicant’s file and states that it was contrary to public interest to disclose information held at folios 35 and 47 because they relate to internal working documents and business affairs. Folio 35 is a checklist checklist and application and identification test details. The Non-disclosure Certificate is also numbered 35. Folio 47 is a checklist relating to the non-disclosure certificate. None of the information contained on these folios has any relevance to issues before me. Furthermore, in my view the Certificate is not valid. The Federal Court decision in MZAFZ v MIBP, which considered a s.438 certificate with similar wording, the Tribunal finds that the s.438 Certificate is not valid as it does not specify a reason that could form the basis for a claim to public interest immunity.
CLAIMS AND EVIDENCE
In the application lodged in March 2015 the applicant claimed to be a Christian and said that he had faced discrimination and had been detained because of this. During an interview with a delegate of the Minister for Immigration held on 18 February 2016 he said that he was not a Christian. He said that he had made this claim because he was familiar with the system in Australia and people told him that he could apply based on Christianity. When asked if the migration agent named on his application was aware of this he said that he had contacted her by telephone the day before the interview and she had advised him to tell the truth during the interview.
The applicant said that claimed that he was a Muslim from the Hui ethnic group. He said that there were several thousand Hui Muslims in his home city of Harbin. When asked about problems faced by Hui Muslims he said that the government did not pay much attention to people from his ethnic group and they were supressed. When asked for details he said that they were not allowed then to slaughter animals for meat in the Muslim way and Hui were supressed so that there was little difference between them and Han Chinese. When asked about problems which he had faced he people brought food into his restaurant which was not allowed, but when he complained to the authorities they did nothing. When asked he said that he had not faced any other problems.
The applicant attended a hearing on 3 October 2018. I noted that he had not applied for protection until some 11 months after his [temporary] visa expired and asked why he had not applied earlier. He said that he had not been aware of the possibility of seeking protection and had lodged an application as soon as he became aware it was possible. I noted that it was my understanding that they were a number of Chinese language publications and other sources of advice and information for people in his situation and advised him that I had some difficulty accepting that he was unaware that he could seek protection in Australia March 2015. He maintained that this was the case.
I noted that the applicant had provided a number of false claims in his initial application for protection. He said that he had done this on the advice of his agent. I observed that even if this was the case his willingness to do so indicated that he was prepared to provide untruthful evidence. He said that he had not realised that this application contained false claims before the interview. I noted that these claims were at odds with the evidence provided to the delegate when he indicated that he had claimed to be a Christian at the suggestion of a friend or friends and that he had only informed his agent that his claims were false on the day before the interview. The applicant said that this was not correct and maintained that his agent had provided the false claims.
The applicant again claimed that he was a Hui Muslim. He said that his wife had converted to Islam when they married and she had faced some discrimination because of this. He said that his daughter was living with his in-laws and was not being raised as a Muslim, which upset him.
The applicant said that he had practiced Islam in China. When asked for details he said that he sometimes worshiped at a Mosque, sometimes worshiped at home and sometimes only worshiped in his heart. I asked him to tell me what he did when attending the Mosque. He said he listened to stories from the Koran and worshiped. I asked him what he meant by worship. He said that he faced west and bowed. He said that he did this because the Koran said that Muslims should face west when they worshiped. When asked he confirmed that this was the case for all Muslim no matter where they lived. I asked him to tell me the name of the city which was most important to Muslims. He said that it was Dubai and Dubai was important because it was home to a Mosque and many Muslims went there on pilgrimage. I asked if he could tell me the name given to this pilgrimage. He said that it was hard to explain. I observed that it was referred to by one word. He said that in China Muslims called it worship.
I noted that there were there were a number of important obligations which all Muslims should meet or try to meet and asked him if he could tell me what they were. He said that Muslims were not allowed to eat pork. I asked if he could tell me any other duties which Muslims should fulfil. He said that they needed to worship five times a day. I observed that some dates were of importance to Christians such as Christmas and Easter and that Muslims also observed certain important occasions. He said that in China there was a festival called Korban (or something similar) which was a day on which animals were killed and people fasted. He also said that Friday was the day of worship for Muslims.
I asked the applicant how he practiced his religion in Australia. He said that he had never attended a mosque because he feared discrimination as people might think he was only attending in order to get protection in Australia. In addition he said that he did not speak English so he could not communicate. I observed that he had been in Australia for over four years and it seemed unlikely that he could not speak any English. He said that he only spoke a little English.
I advised the applicant that I had significant doubts about the claim that he was Muslim and that even if I accepted that he was from a Muslim background the evidence suggested that he had little or no commitment to his faith.
I noted he had failed to apply for protection in a timely manner and had provided false claims in his initial application. He maintained that he had applied as soon as possible and that his agent was responsible for the false claims in his initial application.
I noted that he appeared to have very limited knowledge of Islam, pointing out that, for example, Mecca was the most important city for Muslims and Muslims fasted for a month during Ramadan. He said that he had explained how Islam was practiced in China and suggested that practices might differ in different places. He said that he knew that Ramadan lasted for a month and had not said that it only lasted for a day.
I observed that his failure to attend Mosque or practice his religion outside his home in Australia was at odds with his claim that he needed protection so that he could practice his religion without facing problems in China. I also observed that it appeared that he could practice his religion in China in the same manner as he had chosen to practice it in Australia. He agreed that this was correct, but said that he was concerned that his wife and child might face pressure if he did so.
I noted that even if I accept that the applicant was a Hui Muslim, according to the evidence he had provided to the delegate he had not experienced any significant problems because of this prior to leaving China. I noted that he appeared to have been able to earn a livelihood by operating a restaurant. I also noted that as pointed out in the delegate’s decision, country information appeared to suggest that Hui Muslims did not generally face serious problems in China. The applicant said that he might face discrimination in the area where he lived in China. When asked for more details he said that people might say things behind his back or treat him differently. When asked if he wanted to add anything he said that he did not.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the reasons set out below, I do not find the applicant to be a truthful or a credible or a truthful witness.
In the first place, he failed to apply for protection until over a year after arriving in Australia and then lodged an application which by his own admission was completely false. At the hearing he claimed that his agent had prepared this statement of claims without his knowledge, but this is at odds with the evidence provided to the delegate and I do accept it is true. I believe that he falsely claimed to be a Christian in his initial application because he believed this gave him the best possibility of obtaining protection in Australia.
Secondly, he had very little knowledge of Islam. While I acknowledge that followers of different religions may lack a detailed understanding of their faith, I do not accept that any practicing Muslim would be unaware of the importance of Mecca and believe that Dubai was the most important city in Islam or be unable to list with relative ease the five pillars of Islam (belief in one God and his prophet Mohammed; the obligation to pray five times a day kneeling towards Mecca; the obligation to fast during Ramadan; the obligation to give to charity and the obligation to complete the Hajj if possible). Nor do I accept that practicing Muslim would be able to name the five pillars of Islam (Declaration of faith "There is no god but Allah. Muhammad is the messenger of Allah”, the obligation to five times a day, kneeling towards Mecca).
Thirdly, I find his failure to attend Mosque and only pray at home while in Australia another indication that he is not a practicing Muslim. If the applicant was committed to Islam and had fled China to avoid problems and ensure that he could practice his religion openly and fully I believe he would have done more than pray privately at home while in Australia.
After considering all of the relevant evidence, I do not accept that the applicant is nor ever was a Muslim. I believe that he concocted this claim in order to obtain protection in Australia. It follows that I am not satisfied that he faces a real chance of experiencing serious or significant harm on return to China because he is a Muslim. In the absence of any other claims, I am not satisfied that he faces a real chance of experiencing serious or significant harm for any reason if he returns to China.
IS THE APPLICANT A REFUGEE?
After considering the applicant’s claims singly and cumulatively, I am not satisfied that he faces a real chance of suffering serious harm amounting to persecution for any of the reasons set out in s.5J(1) of the Act. Therefore I am not satisfied that he has a well-founded fear of persecution now or in the reasonably foreseeable future.
DOES THE APPLICANT MEET THE COMPLEMENTARY PROTECTION CRITERIA?
After considering the applicant’s claims singly and cumulatively, I am not satisfied that he faces a real risk of suffering significant harm on return to China. Therefore, I am 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 is a real risk that he will suffer significant harm.
CONCLUSION
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).
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).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Roslyn Smidt
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 4679

3 October 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Standing

Natural Justice