1620162 (Refugee) - [2019] AATA 6513

1620162 (Refugee) [2019] AATA 6513 (9 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1620162
COUNTRY OF REFERENCE:                   China
MEMBER:Anne Grant
DATE:9 October 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 09 October 2019 at 10:00am
CATCHWORDS
REFUGEE – protection visa – China – religion – Church of Almighty God – banned organisation – church worker – fears persecution by Chinese Government and authorities – protection measures unavailable to applicant in China – credible witness – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 438(1)(a), 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Appellant S395/2002 v Minister for Immigration [& Multicultural Affairs (2003) 203 ALR 112
NAVZ v MIMIA [2015] FCA 13
Wang v MIMA (2000) 105 FCR 548

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 17 November 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of China, applied for the visa on 6 September 2016. The delegate refused to grant the visa on the basis that they did not accept that the applicant was a genuine member of the Church of Almighty God and did not accept her claims that there was a real chance that she would be persecuted in China due to her religious beliefs.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: 1620162 (Refugee) [2019] AATA 6513
Case: [2019] AATA 6513
Decision Date: 9 October 2019

CaseChat Overview and Summary

This matter concerned an application for a protection visa by an individual from China. The applicant claimed to fear persecution due to her membership in the Church of Almighty God, which is designated as a heresy by the Chinese government. The applicant asserted that she had been actively involved in church activities, including leadership roles, and that several fellow church members had been arrested by Chinese authorities. She contended that she was being sought by the police and had been living in hiding, fearing arrest, torture, and imprisonment if returned to China.

The court was required to determine whether the applicant met the criteria for being a refugee, and if not, whether there were reasonable grounds to believe that her return to China would result in a real risk of significant harm. This involved assessing the credibility of her claims, the evidence of persecution faced by members of the Church of Almighty God in China, and the availability of protection measures within China. The court also considered the applicant's admission of providing false information on a previous visa application, and whether this impacted the assessment of her protection claims.

The court found that the applicant was a genuine member of the Church of Almighty God and had a leadership profile within the organisation. It accepted her evidence that she would continue to practice her faith if returned to China. Based on the available country information and the applicant's history, the court was satisfied that she faced a real chance of coming to the attention of Chinese authorities and being persecuted for her religious beliefs. This persecution was found to involve significant harm, including potential detention, imprisonment, social ostracism, and torture, and was characterised as systematic and discriminatory conduct by the Chinese government towards adherents of the Church of Almighty God. The court concluded that the applicant would therefore face a real risk of significant harm.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The issue in this case is whether the applicant is a refugee and if not, whether there are reasonable grounds for believing that, as a necessary and foreseeable consequence of her being returned to China, there is a real risk that she will suffer significant harm. The applicant’s claims and evidence In her original claims, the applicant stated that she would suffer persecution in China because she is a member of the Church of Almighty God, which is designated by the Chinese government as a heresy and that the Chinese government wants to ‘wipe them out’. She joined the church in October 2005 and started Church service work in 2007. The government offers a reward for providing clues of her church and Christians. The government has a lot of informers in the public. Many Christians were arrested, including her close Church-mate [Ms A]. The applicant claimed that the police were searching for her, and she had to live in fear and hiding. She had to leave China or her life would still be in danger. She fears being arrested and tortured by police. Nowhere in China is safe for her, as the government searches for Christians everywhere. They will force her to betray her church and quit her religion. In her written claims, the applicant also said that in August 2013, her church mate [Ms A] and her went to [a] Town, Datong city to attend a church ceremony. They became aware they were being followed and separated, with the applicant changing her clothes and appearance but the police followed and arrested [Ms A]. After this she claimed the police kept searching for her and had to keep running and hide herself place to place. She lived in church-mate’s places and could not stay at one place for long. Another of her church-mates, [Person B] was arrested in February 2016. The police said that there were terrorists at her place and opened fire in her room and arrested her. Later it was discovered that she had forgot to log off her computer communication software and her IP address was monitored by police. After that the police searched for her as well. The delegate interviewed the applicant. According to the delegate’s decision record, she told the delegate:·That she had not had paid employment since September 2007, and survived on savings and support from her parents and also that the church had provided her with food and accommodation when needed. Whilst she had been a member since 2005 she did not devote herself to the church until 2007. ·She worked as a deacon at the church and attended church every day with many groups at other member’s houses. The church was a secretive organisation and members would regularly disguise themselves by wearing pollution masks, sunglasses and changes of clothes.·A friend of hers was arrested in August 2013. The police followed her and her friend. After becoming aware that they were being followed, the applicant went into a toilet to change her clothes, glasses and hairstyle. Her friend was arrested. After that time, she did not go home.·The delegate records that the applicant gave inconsistent evidence about when she left home. In her application, she gave her home address in [County 1] until June 2016. She told the delegate that she left that address early in March 2015 to live in [another] City. She also told the delegate that after the arrest of her friend in August 2013, she left home to hide in [County 1] Datong City and did not return home until July 2014 where she remained until March 2016. ·Another friend of hers was arrested in February 2016 after she was caught listening to preaching on an electronic device. The police did not shoot her friend but merely arrived in an anti-riot truck. ·Her mother bought her an apartment in Datong City because she was unmarried and this was where she was living after her friend was arrested, but later said she only stayed there in special circumstances. ·She was granted a passport in [2016], [details deleted]. ·A church brother organised her visa to Australia and she paid [an amount of] Yuan for her visa applications to [Country 1] and to Australia. ·According to the delegate, the applicant was ‘unaware’ that the church was also known as the ‘Real God’ or the ‘Practical God’. She was aware of the church’s holy book but ‘was unaware of the names of any of the chapters of the book’. She was ‘unaware how the hierarchy of the Church was organised.’·The applicant said that she does evangelise in Australia but only to family in China.·The applicant described coming into conflict with her sister in law in China before she left, who wanted the applicant to contribute to the family business but she would devote herself to the church.

Decision

Reasons for decision

I note that the applicant admits that she lied in her application for a visa in Australia, falsely claiming that she was married when in reality, she intended to seek protection once she had arrived. The applicant’s application for protection was lodged less than three months after she arrived. Whilst I accept that the applicant has knowingly obtained her original visa using false information, I also accept her evidence that she did so out of desperation in her desire to escape persecution. She believed that it was only a matter of time before she was arrested, tortured and imprisoned simply for participating in COAG activities, and wanted to get out of the country to escape those risks. I note that the departmental file contained a document claimed to be subject to a certificate under s.438(1)(a) of the Migration Act, as ‘an internal working document and business affairs.’ The information was related to her application for [temporary] visa application and the claim therein to be married. As the applicant had freely acknowledged the potentially adverse information referred to in the document, and had explained her reasons to both the delegate and to myself for making that claim, I considered that the document itself was of no probative value. I did not take it into consideration or make a formal determination about the validity or otherwise of the certificate. The applicant freely acknowledged that she had provided false information in her [temporary] visa application about her marital status so any potentially adverse material in the certificated document which confirmed that fact was superfluous and of no additional weight.Conclusion I have found that the applicant is a genuine member of the Church of Almighty God, and that she joined the church in China and attended meetings, has a profile as a leader in the church, and that she has links to other members who have been arrested by police and imprisoned. I have also considered whether the applicant would continue to practice her faith if she were to return to China. Based on her history, her expressed devotion to the faith both in China and in Australia and her emphatic evidence that she would do so, I accept that the applicant would continue to practice if she were to return to China. I am satisfied that she would therefore face a real chance of coming to the attention of the Chinese authorities on return, and of being persecuted for the essential and significant reason of her membership of the COAG religion if she returns to China. I am satisfied that the real chance of persecution involves serious harm, namely significant personal harassment, lengthy detention and imprisonment, social and official ‘ostracism’ (that is, denial of access to basic services and capacity to earn a livelihood), and potentially torture and assault at the hands of authorities. Based on the country information as discussed above and my findings of fact, I also find that the persecution involves systematic and discriminatory conduct on the part of the Chinese Government towards COAG adherents.

Ratio Decidendi

Legal Principle Established

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) of the Act.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. The issue in this case is whether the applicant is a refugee and if not, whether there are reasonable grounds for believing that, as a necessary and foreseeable consequence of her being returned to China, there is a real risk that she will suffer significant harm. The applicant’s claims and evidence In her original claims, the applicant stated that she would suffer persecution in China because she is a member of the Church of Almighty God, which is designated by the Chinese government as a heresy and that the Chinese government wants to ‘wipe them out’. She joined the church in October 2005 and started Church service work in 2007. The government offers a reward for providing clues of her church and Christians. The government has a lot of informers in the public. Many Christians were arrested, including her close Church-mate [Ms A]. The applicant claimed that the police were searching for her, and she had to live in fear and hiding. She had to leave China or her life would still be in danger. She fears being arrested and tortured by police. Nowhere in China is safe for her, as the government searches for Christians everywhere. They will force her to betray her church and quit her religion. In her written claims, the applicant also said that in August 2013, her church mate [Ms A] and her went to [a] Town, Datong city to attend a church ceremony. They became aware they were being followed and separated, with the applicant changing her clothes and appearance but the police followed and arrested [Ms A]. After this she claimed the police kept searching for her and had to keep running and hide herself place to place. She lived in church-mate’s places and could not stay at one place for long. Another of her church-mates, [Person B] was arrested in February 2016. The police said that there were terrorists at her place and opened fire in her room and arrested her. Later it was discovered that she had forgot to log off her computer communication software and her IP address was monitored by police. After that the police searched for her as well.