1605787 (Refugee)

[2018] AATA 5284

1605787 (Refugee) [2018] AATA 5284 (2 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1605787

COUNTRY OF REFERENCE:                  China

MEMBER:Mila Foster

DATE:2 November 2018

PLACE OF DECISION:  Sydney

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

Statement made on 02 November 2018 at 6:40pm

CATCHWORDS
REFUGEE – Protection visa – China – religion – Christian – local church member – particular social group – one of the ‘five categories of bad element’ – victim of harm by Chinese authorities – failed asylum seeker – decision under review affirmed

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

CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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 on 30 March 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 29 May 2015. The delegate refused to grant the visa on the basis that the applicant was neither a refugee nor owed complementary protection.

   Criteria for a protection visa

3. 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.

   Refugee criterion

4. 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.

5. 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).

6. 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.  

   Complementary protection criterion

7. 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

8. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. There are such assessments in relation to China including the DFAT Country Information Report China which was issued on 21 December 2017 which I have had regard to. The other assessments on China are not relevant to the claims made by the applicant.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The applicant presented his claims and evidence in his protection visa application. He was invited to attend a Tribunal hearing but did not wish to do so. For reasons I give further below in my findings, I have concluded that the decision under review should be affirmed.

   Summary of claims and evidence

   Protection visa application

10. According to the applicant’s protection visa application he is [age] year old who was born in Chinese province of Hubei and both his parents are citizens of China. He did not answer questions on the protection visa application form about his citizenship at birth or his current citizenship but said ‘no’ in response to the questions ‘Are you a current citizen or national of any other country?’ and ‘Have you previously been a citizen or national of any other country?’. He stated that he arrived in Australia as a visitor [in] August 2013 having departed China legally on a Chinese passport. He attached a certified copy of the biodata of Chinese passport issued in his name. According to that document, the applicant was born in Hubei and the passport was issued in Hubei. He stated he had not travelled to any other country other than Australia.

11. The applicant stated that he belonged to the Han ethnic group in China and was a Christian. He said he had never married or been in a de facto relationship and that his close relatives consisted his parents and a sister all of whom lived in China and were citizens of China.

12. The applicant stated that he had resided at one address in China in Hubei province. He had completed high school in [year]. His employment in China consisted of being a worker at a [workplace], [an occupation in a]’ business, the self-employed owner of a company, and a manager of a company from 2008 until 2013.

13. The applicant provided the reasons he was seeking protection in a written statement, translated into English, in which he stated:

    I am a Christian. When I was in China, I attended the Local Church. Ours was a house church, which was different from the official Patriotic Church in many ways. We read two books in our usual gatherings — The Life-study of the Bible and The Morning Revival. The latter was actually an extract from the Recovery Bible, which was noted by Brother Witness Lee. We had our unique ways of worshipping. In every gathering, we would spiritually communicate with God by shouting loudly the name of Lord Jesus. Our church was Jesus' body, so we advocated equality under the same God and opposed internal strives between different denominations. We shared full equality and freedom in our church and we addressed each other by brothers and sisters.

    I worked as [an occupation] in a [company] when I was in China. It was under the family's influence that I converted to God. My grandpa was baptized in his early age by a foreign priest. During the Cultural Revolution, our family members were all labelled(sic) as one of the Five Categories of Bad Elements. We suffered persecution and later all of us were sent to the countryside to be reformed.

    From my early age, I liked to listen to the bible stories. When I was in my high school, I brought the bible with me to school, but it was found and then confiscated by the teacher. I was made to criticize myself in public meetings. The school declared that its students were prohibited from taking to any faith, let alone attending any house churches. Otherwise, they would be expelled by the school. After I graduated and began to work, I followed my parents to attend the house gatherings, but we did it secretly, because our gatherings were outlawed by the government and we were always suspected of holding some evil cult activities.

    In 2010, I wanted to make a tour to [another country] to observe the Local Church there. I got my passport, but I failed several times to get the endorsement for [that country]. On Pentecost of 2012 (a Christian holiday fifty days after the Easter Day and ten days after the Ascension of Jesus), we gathered again. As our loud shouts were heard from outside, we were reported to the security police, who assaulted us, examined our ID cards and registered our personal details. I was cautioned and fined.

    At the end of 2012, I was caught helping smuggle readers about Local Church from abroad. I was detained for two days for investigation by the security police. They warned me if I was found working for the unauthorized churches again, I would be sent to the detention camp. From then on, my name was on the blacklist of the local government and my family was placed under the constant surveillance by the council government. Every time the government was to hold some important events (such as the National People's Congress and the Chinese Political Consultative Conference), the security police would always send all of us suspects to a seminar to be brainwashed. Actually, the government had another motive, that is, to prevent us from airing our grievances to a higher authority.

    Just before the Easter Day of 2013, when I was at a meeting in the company when the security police telephoned me ordering me to report myself to the police station immediately. I did not do as they ordered, because I was engaged that day. That night, the security police came to my house and took me away from the spot. The minute I was shoved into the police car, I was blindfolded and given a good beating. I was left imprisoned for a whole day with no food or drink, and no one seemed to care about me. The following day, the policemen came to give me a pen and paper and ordered me to account for my activities in the last month. Where had I been? Who had I contacted? I argued I couldn't recall all of them only to be given another good beating. Finally, I handed in my statements three times, but was rejected as many times for lack of detailed content. I was required to write them again. Soon it dawned on me that the police were investigating a case of illegal preaching by a fellow adherent of mine. They suspected I knew something about it and was even involved in it. I was tortured for three days before I was bailed out.

    I felt hopeless about my future in China. The company I was working for, harassed by the security police, didn't want to employ me any longer, and suggested I should resign. As I was a contract worker, I had to give in and submitted my resignation. Anyway, if I didn't do so, I would be fired sooner or later. I'd like to find a new job, but which employer would like to ask for trouble by hiring a person with a police record like me? My family members advised me going abroad and I finally took their advice. I soon got ready all the formalities to leave the country by pulling some strings, though the agent who had helped me didn't tell me all the details. The agent only told me never to file any application for refugees. Someone did so in the United States, but Chinese Government summoned his family members for enquiries on knowing his refugee application. And from then on, his family members were discriminated against and his children were alienated in the school and couldn't find any job after graduation. They were all labelled(sic) as traitors and looked down upon by people around them.

    So after my arrival in Australia, I dared not a file any application for protection in fear that my family members and relatives would be involved. I was then searching the country for a suitable church for myself. I found some and attended them, but I had to quit them finally because of the language barrier. One day, I happened to disclose my past experience with the Local Church only to be told that it was an evil cult. I felt aggrieved and even offended. From then on, I never mentioned that experience with any others. I had thought that there were no local Churches in Australia until in May of 2015, I chanced to meet with some adherents from the Local Church. It was really a grace from God. I began to attend their church and I liked to stay with it, because it was my real spiritual home.

    It was after I was with my Local Church that I began to know that Australian Government was protecting the adherents of Local Church and their family members in China. Only then did I plan to file an application for protection. However, when I told my family members about my plan, they were worrying not only about me but also about themselves. After careful consideration and consultation, I decided to file my application for protection on religious grounds by the Australian Government. I believe it's the only way for me to gain my true genuine freedom of faith.

    Section 438(1)(a) certificate

14. The file from the Department of Immigration and Border Protection (now Department of Home Affairs) relating to the applicant’s protection visa application contains what purports to be a s.438(1)(a) certificate. The certificate pertains to information in two folios on the Department file. The folios are internal Department forms. The certificate states that disclosure of the information would be contrary to the public interest because the folios contain information relating to an internal working document and business affairs. This description of the folios as being an internal working document and business affairs does not explain how disclosure of the information would not be in the public interest. I thus find that the certificate is not valid. I have not revealed the information in the folios to the applicant as they do not contain information that is relevant to his claims.

    Invitation to Tribunal hearing

15. The applicant included a copy of the delegate’s decision record in his review application but no additional claims or evidence.

16. The applicant was advised that the Tribunal had considered all the material before it relating to the application but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. The invitation indicated that the scheduled hearing could be changed if the Tribunal was satisfied there was a very good reason for granting an adjournment. In response the applicant advised the Tribunal that he had decided not to attend the hearing because he felt very pressured and wanted the Tribunal to make a decision based in his ‘previous paper submission’. As the applicant consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it, this matter has been determined on the evidence available to the Tribunal in accordance with s.425(2)(b).  

    Findings on claims and evidence

17. 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 it is for the reason claimed. Similarly, 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 made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

18. The certified copy of a page of the applicant’s Chinese passport confirms that he was born in Hubei province and is national of China. I thus find that he is a national of China and that China is the receiving country for the purposes of assessing his claims for protection.

19. However, the applicant’s claims are lacking detail in many respects. For example, in the second paragraph of his written statement the applicant indicates that he, along with other members of his family, suffered persecution after being labelled ‘as one of the Five Categories of Bad Elements’ and later were all sent to the countryside to be reformed. He does not however specify when the persecution occurred, detail the nature of the persecution, specify when he was sent to the countryside or what being ‘reformed’ involved in his case.

20. The applicant does not indicate how often he was made to attend public meetings because he brought a Bible to school nor does he detail the nature of the public meetings, for example, where they were held or who attended the meetings.

21. The applicant claims he began attending house gatherings after he graduated high school and began work but does not indicate how often he attended such gatherings or how many others attended the gatherings. According to his protection visa application he graduated from high school in [year] and began working in 2000. He gives no indication of how the gatherings were kept secret and avoided detection by the authorities from 2000 until, apparently, 2010 when one of their gatherings was overheard even though he claims the gatherings were outlawed and the authorities suspected them of holding evil cult activities.

22. The applicant gives no details about how he smuggled readers about the Local Church from abroad or how he came to be caught for doing so at the end of 2012. He claims his name was placed on a blacklist as a result and every time there were important government events he was sent to a seminar to be brainwashed. He does not however specify where those seminars were held, how long they lasted or what the brainwashing involved.

23. The applicant claims he was able to leave China by pulling strings but the agent who helped him leave did not tell him all the details which suggests the applicant was aware of some details. He does not however provide any details about the agent or the strings that were pulled that he was aware of even though his claims indicate he had come to more frequent and more adverse attention of the authorities since his last failed attempts to leave mainland China in 2010.

24. The applicant claims he met some Local Church adherents in Australia in May 2015 by chance and began attending their church. He provides no details of the chance encounter or the church he claims to have subsequently attended. For example, where the encounter occurred or how he discovered the people he met were Local Church adherents, the name of the church he began attending, where the church was located or how often he attended. Nor has the applicant provided any information about his religious practice or beliefs since he lodged his protection visa application over three years ago. 

1. In addition to lacking detail, the claims made by the applicant are mere assertions which have not been tested at hearing. Consequently, I do not accept the claims made by the applicant on the evidence before me. I do not accept that the applicant or any member of his family in China are or were Christians or Local Church members, that he or any member of his family was labelled ‘as one of the Five Categories of Bad Elements’, or that he or any member of his family in China has been harmed by the Chinese authorities for the reasons he claimed in his written statement. Furthermore, I do not accept that the applicant has attended any church in Australia or that he met Local Church adherents in Australia in May 2015. I thus do not accept that the applicant is a Christian and am not satisfied on the evidence before me that there is a real chance he will suffer serious harm or significant harm if he returns to China for reasons of religion or being labelled ‘as one of the Five Categories of Bad Elements’. Nor do I accept that the applicant or any member of his family was or is concerned about him lodging a protection visa application and am not satisfied on the evidence before me, including the information in the DFAT Report regarding failed asylum seekers,[1] that the Chinese authorities are aware that the applicant has applied for a protection visa or if they did become aware that he had applied for a protection visa that he or a member of his family would be subjected to serious harm or significant harm for that reason.

   [1] At [5.18].

2. I am therefore not satisfied, on the evidence before me, that the applicant has a well-founded fear of persecution for reasons of race, religion nationality, membership of a particular social group, or political opinion. Nor am I satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.

3. For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or a person in respect of whom Australia has protection obligations under s.36(2)(aa).

4. 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

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

   Mila Foster
   Member