1614071 (Refugee)
[2018] AATA 5532
•11 December 2018
1614071 (Refugee) [2018] AATA 5532 (11 December 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1614071
COUNTRY OF REFERENCE: China
MEMBER:Nathan Goetz
DATE:11 December 2018
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 11 December 2018 at 10:30am
CATCHWORDS
REFUGEE – protection visa – China – religion – Christian – fear of arrest – punished by teachers – threatened for expulsion – fear of arrest – delay in protection application – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K-LA, 36, 65, 425, 438, 499
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 8 August 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 16 October 2015. He did not attend an interview with the delegate on 8 August 2016. The delegate refused to grant the visa on the basis that the applicant did not meet the criteria to be granted a protection visa.
On 2 September 2016 the applicant lodged an application for a review of this decision with the Tribunal. He attached a copy of the delegate decision. The applicant was invited to attend a hearing at the Tribunal at 1.30pm on 5 December 2018 to give evidence in support of his claims.
On 26 November 2018 the applicant wrote to the Tribunal to advise that he was not going to attend the hearing due to his health. He authorised the Tribunal to make the final decision without a hearing based on his previous submissions and supporting documents. Accordingly, the Tribunal has exercised its powers under s.425(3) of the Act and to determine this matter without having a hearing on the basis that the applicant meets s.425(2)(b).
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 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).
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.
Material before the Tribunal
The Tribunal has considered the material contained in the applicant’s departmental file and the material contained in the applicant’s Tribunal file.
The Tribunal notes that in the departmental file a certificate and notification regarding disclosure of certain information under s.438(1)(a) of the Act has been issued with respect to the information contained in folios 63 and 64 of the file. The certificate states that ‘the disclosure of this information would be contrary to the public interest because the information related to an internal working document and business affairs’. The information is a ‘disclosure decision checklist’ to identify whether there are any s.437 related documents contained on the file, and a ‘decision check sheet’ which identifies whether an interview was offered, the priority of the case, and the basis on which the delegate determines whether an applicant does not meet the refugee convention or complementary protection criteria.
The Tribunal considers that this certificate is invalid because ‘internal working documents’ cannot form the basis of public interest immunity: MZAFZ v MIBP [2016] FCA 1081. In any event, this information is neither favourable nor adverse to the applicant’s claims.
CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the criteria for a protection visa, either on the basis that he is a ‘refugee’ or a personal entitled to ‘complementary protection.’
Protection visa application
The applicant is [name] who is a citizen of the People’s Republic of China. He was born in Laixi, in the Shandong province [in date]. He provided a copy of his Chinese passport. The Tribunal is satisfied that the country of reference for this application is China and there is no evidence before it that the applicant has any right to reside in another country.
In the protection visa application, the applicant provided a two and a half page submission in answer to all the questions asked in the form about why he left China, what he thought may happen to him if he returned to China, whether he had experienced harm in China, whether he sought help within China after that harm (if applicable), whether he moved, or tried to move to another part of that country to seek safety, whether he thought he would be harmed or mistreated if he returned to China, whether he thought that the authorities of China can and would protect him, and whether he thought he would be able to relocate to another part of China.
In his written statement, the applicant stated that at the age of [age] he came to Australia in September 2011 to study. He came by himself because his [sister] was ill so his parents remained in China to care for her. He wrote that his migration agent found him a guardian in Australia to take care of him but when he got off the plane at the airport; no one was there to meet him as planned. His agent did not answer the applicant’s calls for help and the applicant did not know what to do as he had language barriers and was in unfamiliar environment.
He was able to find a Mandarin speaking taxi driver who drove him to [a suburb] where the applicant could find more Chinese people to help him. The taxi driver advised him to read the newspaper for information about renting a house. The applicant finally found a room and shared it with three other people. His money was stolen by someone. He was afraid that his parents would ‘blame him’ for what happened so he did not tell them what happened. He lost the address of his school so he could not be registered in his course of study. His roommate advised him that it was more important for him to earn and living and pay his rent first and then register for his study later. The applicant eventually found work as a labourer.
The applicant wrote that when he was about to register at school, he heard about a student who had been reported by the student’s school for a poor attendance record which resulted in the student’s deportation. The applicant was advised not to register because the department was launching a new investigation into student visas. The applicant wrote that he was afraid that if his visa was cancelled he would be removed to China.
The applicant wrote that his [sister] was diagnosed with a [medical condition] when she was [age] years of age and hospitalised. A fellow sister of his visited his [sister] and read prayers for her. She said that his sister quickly recovered and her illness stabilised. He wrote that from then on, his parents converted to Christianity and served as ‘witnesses to our Lord’. He wrote that they were pious Christians and worshipped God at the house church.
The applicant declared that he was influenced by his parents and attended the house church. Despite his age, his spiritual life developed and he was cultivated by the church. He obeyed the teachings in the Bible and attended the Sunday dinner held by the church. He developed his spirituality steadily by reading the Bible and preaching the Gospel.
He wrote that the church was not recognised by the local government and was constantly monitored, restricted and destroyed. He recalled his middle school days when his brothers and sisters were gathering at his home ready to baptise him when government officials attended, which resulted in his baptism not occurring. He wrote that towards the end of 2010, the government was launching a new campaign to investigate house churches. There was a religious gathering being held at his home when official attended and declared that they were disturbing the social order by taking part in cult activities. Despite his parents trying to reason with the officials, the house church was sealed and his parents and [sister] were imprisoned for one week. The purpose of the imprisonment was for ‘brain washing’. He was spared because of his youth but was warned to not attend any house church. His school teachers were also informed of what happened, and he was punished by being made to stand in the corner of the classroom, being suspended from lessons, being forbidden from bringing a Bible to school and being cautioned not to preach the gospel to other students in his class. He was threatened with expulsion. He wrote that this hurt him not only physically but mentally as well, and frightened him out of going to school. His parents were very worried about him, so they decided to send him to Australia.
Upon his arrival in Australia, he wrote that he could not find a local church because of his language barrier so he had to communicate with his ‘brothers and sisters’ in church through phone calls. At the beginning of 2013, he found the [local]Church. He wrote that this provided him with a great relief, that the brothers and sisters were very kind to him and that he was not discriminated against. From 2013, he attended church regularly every week. He wrote that he was baptized at the church [in] December 2013 and that he was determined to obey the biblical teachings and work very hard to preach the gospel.
He wrote that in May 2014, the government tightened up its suppression against house churches and that his brothers and sisters were deprived of their freedom of faith. He had heard people say that a classmate of his was reported and arrested by police. This classmate was caught by police, beaten and was not released by police until a bail bond was paid by that classmate’s family.
The applicant wrote that house churches in China are still being suppressed and persecuted by the Chinese Communist Party. After the Spring Festival of 2015, his parents and [sister] were arrested when they were gathering for religious activities and he was terrified. The applicant wrote that he will surely face danger if he chooses to go back to China in the future. His parents have warned him to never return. The experiences of the applicant’s parents, [sister] and classmate have convinced him about this danger. The applicant noted that the Communist Party did not even spare his sister despite her illness which made him bitterly disappointed. He wrote that the reason he is now filing a protection application is because he wants to flee from persecution. He noted that in Australia, everyone enjoys freedom of faith while in China the government imposes tyranny. Recently Chinese government policies try to substitute patriotic propaganda for religious faith and advocates for its own sinicized religion, which is against freedom of faith and unacceptable to the applicant.
FINDINGS AND REASONS
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the claimed fear or that it is ‘well-founded fear’ or that the fear is for the reason claimed. Similarly, a claim that an applicant faces a real risk of serious harm does not establish that such a risk exists, or that the claimed fear amounts to a significant harm. It is for the applicant to satisfy the Tribunal of all the statutory requirements. Although the concept of an onus of proof is not appropriate to administrative decision-making, the relevant facts of a case will have to be supplied by the applicant in as much detail as necessary to enable the decision-maker to establish relevant facts. A decision-maker is not required to make the case for the applicant, nor is a decision-maker required to accept uncritically the claims by the applicant.
The evidence presented by the applicant to the Tribunal is not sufficiently detailed to enable the Tribunal to be satisfied that the applicant faces a real chance of serious harm in China for a reason under s.5J of the Act, or that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China, he will face a real risk of significant harm.
The applicant arrived in Australia in September 2011 on a student visa but did not lodge a protection visa application until October 2015. This is a delay of almost four years. The applicant has not provided a meaning explanation for why he delayed lodging his protection visa application. In the Tribunal’s view, the delay is suggestive of that applicant not having a genuine fear of harm if he were to return to China, especially when it was claimed that the reason his parents sent him to Australia was because they were worried about him because of what had occurred in China. If that was the case, it would have been reasonable to expect that the applicant would have taken immediate steps to claim protection in Australia, especially when he had the claimed assistance of housemates and his local church in Australia who could have helped him to regularise his migration status and lodge a protection application.
The applicant’s protection application is dated from October 2015. Four years have passed and there is nothing before the Tribunal to indicate that he is practising his religion in Australia, nor is there any current evidence about what the applicant intends to do as a practising Christian in China. No documentation was submitted to confirm his claimed baptism and participation at [a] Chinese Christian Church. Based on the limited evidence before the Tribunal, the Tribunal cannot be satisfied that the applicant is a genuine Christian, has practised as a Christian either in China or Australia, nor that he will practise his claimed Christianity in China in a way that will result in serious harm or give rise to significant harm to the applicant. The references to the Lord, Bible teachings, and attendances at Church as claimed in his protection application are vague and unpersuasive.
The applicant’s claims about his school teachers punishing him, suspending him, prohibiting him from bringing a Bible to school and cautioning him to not preach the Gospel, and threatening him with expulsion, are also vague and insufficiently detailed. The Tribunal does not know who actually made these claimed threats, how often they were made, and whether this punishment or prohibition on activities was actually related to the applicant’s claimed Christianity, or for some other reason.
It appears to the Tribunal that the applicant has claimed that he will be at risk if he were to return to China on the basis that his family are practising Christians. Again, given the vague nature of the applicant’s claims and lack of corroborating evidence, the Tribunal cannot be satisfied that these claims are credible. The applicant has not provided sufficient information about his parents and siblings current circumstances and their religious practice for the Tribunal to place any weight on the claim that the applicant will face harm as a consequence of his family’s religious practice, nor are the applicant’s claims about the imprisonment of members of his family detailed enough to satisfy the Tribunal that such imprisonment actually occurred.
Given the lack of sufficient information and detail contained in the applicant’s claims, the Tribunal is not satisfied that there has been persecution for a reason under s.5J(1) in the past, or that there is a real chance that the applicant would be persecuted for one or more of those reasons in the reasonably foreseeable future. Consequently, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution.
For the same reasons, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm.
CONCLUSION
Refugee
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).
Complementary protection
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).
Member of the same family unit
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.
Nathan Goetz
MemberATTACHMENT - 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.
…
Key Legal Topics
Areas of Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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