1615711 (Refugee)

[2020] AATA 1720

1615711 (Refugee) [2020] AATA 1720 (14 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1615711

COUNTRY OF REFERENCE:                   China

MEMBER:Irene O’Connell

DATE:14 February 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 14 February 2020 at 11:04am

CATCHWORDS

REFUGEE – protection visa – China – religion – Roman Catholic – house church – family arrests – local government surveillance – education – bribery and corruption – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5, 5H, 5J, 5K, 5L, 5LA, 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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 19 August 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who are citizens of China, applied for protection visas on 13 November 2015. The first named applicant arrived in Australia [in] February 2008 on a student visa. He discontinued his studies after a short time and remained onshore.

3. The second named applicant arrived in Australia [in] March 2013, departed [in] January 2014, and then returned [in] February 2014. She has remained onshore since then. The applicants met each other in Australia and entered into a de facto relationship before marrying in July 2106. They have two children, aged [ages] both born in Australia.

   RELEVANT LAW

4. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994. 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.

5. 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.

6. Section 5H of the Act defines a refugee, in the case of a person who has a nationality and is outside the country of their nationality, as a person who, owing to a well-founded fear of persecution, is unable or unwilling to avail themselves of the protection of that country.

7. Under s.5J(1) of the Act a person is taken to have 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. Subsections 5J(2)–(5) of the Act further defines the meaning to be attributed to a well-founded fear of persecution.

8. 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’).

9. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A) as follows. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’ and ‘torture’ are further defined in s.5(1) of the Act.

10. Section 36(2B) of the Act sets out certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm or where the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

    CLAIMS AND EVIDENCE

    Claims before the Department

11. The Tribunal has before it the Department file containing the applicants’ protection visa application, a recording of the applicants’ interview with the delegate, held on 15 August 2016 and the decision record of the delegate.

12. The applicants provided the following information in their application. The first named applicant states that he is [age] years of age. He lists his ethnic group as Chinese; his religion as Catholic and states that he reads, writes and speaks Mandarin and English. He claims that he cannot return to China because he is Catholic and was born into a Catholic family and he fears persecution because of his religion.

13. The second named applicant lists her ethnic group as Chinese, her religion as Catholic. She states that she was previously married and divorced in July 2014. She states that she is in a de facto relationship with the first named applicant.

14. The first named applicant states that he is from a Catholic family and was baptised at birth. He sets out the following claims: The Chinese government limits and controls the churches. Due to this, his parents started a house church. When he was around four years of age the local government discovered this house church. Police broke into the house and beat his parents, smashed their possessions, and detained his father. His mother had to pay a large fine to have his father released. Due to this incident and the community’s lack of acceptance towards religion, he was bullied at school (by students and teachers). His family was also under surveillance by the local government. He does not want to live in China as there is no religious freedom and he will be discriminated against as he is Catholic.

    Claims before the Tribunal

15. The applicant did not make a written submission to the Tribunal other than to provide a copy of the birth certificate from the [registry] and for their first born child born [date]) and to request that he be included in the review application.

16. The applicant was advised by a Tribunal Officer that it was not possible to include children in a review application who are born after the date of the delegate’s decision that is under review.

17. The applicants appeared before the Tribunal at a hearing held on Wednesday 12 February 2020. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

18. The first named applicant gave oral evidence at the hearing. The second named applicant indicated that she did not wish to give oral evidence although she occasionally contributed to the responses of the first named applicant.

19. In response to questions about his fear of returning to China the first named applicant stated that it would be difficult for him to go back to China because he has not been there for 10 years. He stated that his children were born here and it would be bad for them to go to China. He dislikes China; he values the greater freedom in Australia and has concerns about the virus in China.

20. When asked to elaborate further on his concerns the applicant stated that it would be complicated to go back to China and that his children would not receive the education they are able to obtain in Australia. He stated that there is bribery and corruption at different government levels in China. He stated that it would be difficult for the family to adapt to life in China.

21. The Tribunal put to the applicant that the criteria for the grant of a protection visa was that a person had a well-founded fear of persecution and that much of what he had put to the Tribunal was about a preference for Australia.

22. The applicant referred to the fact that he is Catholic, as are his parents. The Tribunal asked the applicant about any religious involvement or activity here in Australia in the 10 years he has lived here. The applicant responded that he had no involvement in religion. He indicated that his marriage was a civil marriage.

23. The applicant stated that in the past his parents were involved in organising a church and he feared harm for this reason. When asked about his parents’ circumstances now he indicated that they are in their fifties. He stated that he has [siblings in specified occupations] and that they currently reside in China without difficulty but in a different area from his parents.

24. The Tribunal indicated to the applicants that they did not seem to meet the criteria for the grant of a protection visa. The applicant asked what other visa they could apply to enable them to remain in Australia.

    Country information

25. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal is required to have regard to relevant country information assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes. The Tribunal has had regard to the DFAT Country Information Report, People’s Republic of China (dated 21 December 2017).

    FINDINGS AND REASONS

    Country of reference

26. On the basis of the applicants’ passport provided to the Tribunal at the hearing, the Tribunal is satisfied that the applicants are nationals of China. Accordingly, the Tribunal finds that this country is the country of reference with respect to the refugee criteria and the receiving country in respect to the complementary protection criteria.

    Do the applicants have a well-founded fear of persecution should they return to China?

27. As set out above in their protection visa application the first named applicant claimed to fear harm by reason of his and his family’s association with Catholicism and past mistreatment by the authorities by reason of their religion.

28. At the hearing before the Tribunal the applicant did not make out these claims other than in a very vague and secondary manner. He indicated rather that he wanted him and his family to remain in Australia for reasons of education and well-being.  He indicated that he has not pursued any religious activity during the 12 years he has resided in Australia. He also indicated that his parents and [siblings] currently reside in China and made no reference that they were experiencing any hardship because of the family’s claimed past association with Catholic house churches.

29. Given that the applicant has had no religious commitment or involvement in the past 12 years that he has spent in Australia and given that his family back in China are not experiencing any hardship because of claimed past association with Catholic house years and given that the applicant raised his claims about religion in a secondary and vague manner the Tribunal does not accept that the first named applicant or the second named applicant have a well-founded fear of harm on return to China by reason of the first named applicant’s previous religious association.

30. The applicant has not made out to the Tribunal any other basis for which he fears persecution on return to China. As discussed with the applicant at the hearing he has expressed a preference for living in Australia and concerns about education and the well-being of his children if they live in China.

31. 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).

    Is there a real risk that the applicants will suffer significant harm on their return to China?

32. Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa) that being whether on the evidence there are substantial grounds for believing that there is a real risk that the applicants will suffer significant harm as a necessary and foreseeable consequence of being removed to China.

33. For all the reasons given above, the Tribunal does not accept that the applicants face a real risk of significant harm as a consequence of being removed from Australia to China. The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).

    DECISION

34. The Tribunal affirms the decision not to grant the applicants protection visas.

    Irene O’Connell
    Deputy Division Head