1613669 (Refugee)

1613669 (Refugee) [2019] AATA 5302 (18 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1613669
COUNTRY OF REFERENCE:                   China
MEMBER:Roslyn Smidt
DATE:18 November 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 November 2019 at 4:30pm
CATCHWORDS

REFUGEE – protection visa – China – religion – underground church group – house destroyed by planning officials – credibility – inconsistent evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 28 July 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 16 September 2015. The delegate refused to grant the visa on 28 July 2016.
The issues that arise on review are whether Australia has protection obligations to the applicant under the refugee criterion or under the complementary protection criterion.
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.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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 [age] year old married man from Fuqing City in Fujian Province. He has [a number of] children. He was granted a [temporary] visa [in] June 2015 and arrived in Australia [in] July 2015. He applied for protection on 16 September 2015.
CLAIMS AND EVIDENCE
In his written and oral submissions to the Department the applicant claimed that he had become a practicing Christian in early 2014 and attended small underground religious gatherings of about five people from then until April 2015 when a “bad man” reported the group to the authorities and they were all detained. He was badly beaten and tortured in detention. [In] May 2015 his family paid a fine of [amount] RMB and he was temporarily released because of his poor health. He was taken to hospital where he remained for two days later. After he was released from hospital he hid at a friend’s house because he feared he would be arrested if he returned home. He failed to comply with the requirement that he report regularly to police while on release from detention. He borrowed money from family members and neighbours and came to Australia. About seven weeks after his arrival the police went to his family home to arrest him.
During an interview with the delegate on 28 July 2016 the applicant also claimed that he had begun attending church in [Suburb] about two weeks after he arrived in Australia. He said that people at the church would sing and share feelings. He was asked for information about his religious beliefs. He said that he used to have a very hot temper and he thanked God for turning him into a kind, tolerant and considerate person and for improving his health. The delegate asked the applicant to tell him about the teachings of his church. The applicant said that people should be nice and help those in need.
The delegate advised the applicant that country information indicated that there were stringent checks in place at airports in China so that the authorities could identify people of interest and prevent them from leaving and observed that it was unlikely that he would have been able to leave China given his circumstances. The applicant said he did not know how he was able to leave, but many people left even after being arrested.
The delegate found the applicant’s claims to be lacking in credibility. In reaching this conclusion he noted that the applicant’s evidence regarding his religious beliefs was vague and unconvincing. He also found the claims that the police made no attempt to locate the applicant for over two months after he left the hospital despite the fact that he failed to comply with the requirement that he report to them regularly and that he was able to departure China legally on his own passport despite being on temporary release from detention implausible.
The applicant provided to the Tribunal a copy of the delegate’s decision record dated 28 July 2016, and a copy of his passport issued [in] 2014.
The applicant attended a hearing on 18 November 2019.
I asked why he had left China and sought protection in Australia. He said that he had nearly finished building a four story house when it was destroyed by planning officials [in] February 2015. He said that as he had spent all of his money on the house the only possibility for him was to come to Australia. I asked why he thought this would be the best solution for his problems. He said that he had argued with officials when his house was destroyed and as a result he was held for two days in a small room in the local urban planning office. After that he complained to local officials, but they did not help so he complained to state officials, but he still received on help. Then one day in March 2015 he went to the bus stop planning to go to Beijing, but he was stopped by officials who held him for another day to prevent him making a further complaint.
I asked the applicant if he had faced any other problems before he left China. He said that apart from the house there were no other issues.
I asked the applicant if he had come to Australia to earn money after losing his house. He said that he had spent [amount] RMB building the house, but these debts were paid. He said that he had come to Australia because some Christians had suggested that he do so.
I asked the applicant what he feared would happen to him if he returned to China. He said that he did not know, but he would not have a house to live in. He said that his wife and children were living with his mother in law and he would have to live there too if he returned to China.
I asked the applicant why his house had been destroyed. His response was somewhat confused. He said he was told that he could not build a four story house, but other people in the area had been allowed to do so. He said that he had applied to village authority and they said he would be granted a building permit. It is not clear whether a permit was obtained, but later another council intervened and told him the building was illegal and destroyed it
Later in the hearing the applicant said that he tried to stop the machines from destroying his home in February 2015, but he was dragged away so he hit someone with a brick and injured him. After that he was told he should pay [amount] yuan in compensation. I asked if he had been charged with an offence following this. He said that he had been charged with obstruction, but had not faced any charges relating the injury. I asked had happened as a result of these charges. He said that he had not gone to court because someone had suggested that he pay a bribe to avoid problems. I asked if he had paid a bribe. He said that he did not know exactly what was happening, but the authorities were always trying to catch him and one occasion they caught him. I observed that he had previously stated that he was only detained once after he was released in February 2015 and that this was done to prevent him going to Beijing to lodge a complaint. I also noted that his earlier evidence did not suggest that he was constantly pursued. The applicant did not respond to these comments, but said that it was not good when someone destroyed your house.
I noted that the applicant had previously claimed that he was a Christian and had not mentioned any problems relating to the destruction of his house in his application to the Department. He said that the agent who had helped him to prepare that application had told him that he would not get a visa based on the problems related to his house and suggested he claim to be a Christian. He said that he repeated the same claims to the delegate because he was confused.
I asked the applicant to confirm that he was not a Christian and did not fear harm on return to China because of his religion. He said that his mother was a Christian and he had been baptised and attended church for nine months in China, but he had not experienced any problems because of this.
Later in the hearing the applicant said that he had argued with some neighbours about religion, but he had not faced any other problems. He also claimed that he had been attending church since arriving in Australia. I observed that if he regularly attended services then other members of the church should be able to confirm his attendance, but he had not provided any evidence of that kind. He made no comment. I asked when he had last attended a church service. He said that he had not been to church in the last few months because someone had told him that a lot of people at the church had been caught and sent back to China.
I asked the applicant if he feared he would face problems on return to China because he was a Christian. He said that he was not sure. I advised him that I had difficulty accepting his claims regarding religion as he had changed his evidence. I also noted that he had previously stated that the only problems he feared on return to China related to the destruction of his house, which suggested he did not fear harm for reasons of religion. Finally I noted that even if I accepted his current claims at face value, he had not faced any real problems in China because of his religion and advice from DFAT suggested that merely attending small religious gatherings in Fujian was unlikely to cause significant problems. In response the applicant said that if he returned to China he might get into another argument and physical fight because of issues relating to the unpaid medical bills and if that happened they would search for him and he might be killed. However, he did not claim to fear that he would face harm because of his religion.
I asked the applicant if there was anything he would like to add. He said that he had told the truth and would work hard and not be a burden if he was given a visa.
FINDINGS OF FACT
I did not find the applicant to be a truthful or a credible witness.
First and most significantly, the applicant made false claims in his initial application for protection and repeated these claims during his interview with the delegate. He claims that he did so because an agent told him that he would not obtain a visa if he told the truth and advised him to make false claims instead. Even if this is true, it does not alter the fact that he was prepared to provide false evidence in support of his application which reflects very poorly on his credibility.
Secondly, I found the applicant’s evidence regarding the claimed destruction of his house in February 2015 confused and unpersuasive.
He initially spoke about being detained after arguing with officials and said that he decided to come to Australia after his complaints to officials outside the town failed to produce a result and he was prevented from going to Beijing to lodge another complaint. When asked how this related to his decision to come to Australia and seek protection he said that friends had suggested it would be a good idea. When asked what he feared would happen if he returned to China he said that he would not have a house and would have to live with his mother in law, but made no mention of the possibility of problems with the authorities or anyone else.
Later in the hearing he said that he had been detained in February 2015 after a physical fight during which he had injured someone with a brick. He said that while he was not charged with any offence relating to the injuries he inflicted on this person, he was charged with obstruction. He claimed that the authorities were pursuing him in relation to these matters and on one occasion they caught him. When I observed that this appeared to be at odds with his earlier evidence, he failed to provide an explanation. He also claimed that he would continue to complain about the destruction of his home if he returned to China and he might get into another physical fight and face problems because of this. He also said that he feared he might be killed.
In these circumstances and in light of the applicant’s failure to raise these claims prior to the hearing, I do not accept that his home was destroyed by the local authorities in February 2015. It follows that I am also not satisfied that he was involved in a fight with people trying to destroy his home or that he faced charges or any other problems with the local authorities or anyone else because of his involvement in a fight or because he sought to complain about the destruction of his house. I believe that he concocted these claims in order to support his application for protection in Australia.
Thirdly and finally, I found the applicant’s claims regarding his involvement with Christianity unpersuasive. When I reminded him that he had previously claimed that he was a Christian he said that these claims were untrue. He then said that he had practiced Christianity for a brief period in China without facing any problems. He also repeated his earlier claim that he had attended church regularly since arriving in Australia. If the applicant had practiced Christianity in China and Australia, but had embellished his claims by falsely stating that he had been detained in China I believe that he would have explained this when I first asked about the claims in his initial application rather than state that they were untrue. In addition, his failure to provide any supporting evidence for the claim that he has regularly attended services at the same church for a period of years in Australia together with his evidence that he has not attended any services for a number of months suggests that he has had little or no involvement with any Christian church or group in Australia.
In these circumstances and in light of my finding regarding the applicant’s willingness to provide false evidence regarding the claimed destruction of his house, I am not satisfied that the applicant is or ever was a practicing Christian.
CONCLUSIONS
There is no credible evidence before me which suggests that the applicant faces a real chance of suffering serious or significant harm for any reason if he returns to China within reasonably foreseeable future.
On the evidence currently before me I am not satisfied that the applicant 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 in Belgium now or in the reasonably foreseeable future.
On the evidence currently before me I am not satisfied that the applicant faces a real 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 being removed from Australia to China, there is a real risk that he will suffer significant harm.
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).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa). I am 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.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
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 the 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.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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.
…

[2019] AATA 5302

18 November 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction