1620845 (Refugee)

[2019] AATA 5827

1620845 (Refugee) [2019] AATA 5827 (27 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1620845

COUNTRY OF REFERENCE:                   China

MEMBER:Lilly Mojsin

DATE:27 June 2019

PLACE OF DECISION:  Sydney

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

Statement made on 27 June 2019 at 3:37pm

CATCHWORDS
REFUGEE – protection visa – China – religion – unregistered house church – travel to Special Administrative Region – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5J, 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 21 November 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of China, applied for the visa on 31 March 2016. The delegate refused to grant the visa on the basis that the applicant left China legally on her own passport, she did not have an adverse profile in China and was not of interest to the Chinese government.

3. The applicant appealed that decision to this Tribunal. The applicant was notified that the Tribunal had considered the material before it but the Tribunal was unable to make a favourable decision on this information alone. The applicant was invited to appear before the Tribunal, on 26 June 2019 at 10.00 am, to give evidence and present arguments relating to the issues arising in relation to the decision under review.

4. The applicant was advised that, if she failed to attend the scheduled hearing and an adjournment was not granted, the Tribunal might make a decision on the review without taking any further action to allow or enable her to appear before the Tribunal.

5. The applicant acknowledged the Tribunal correspondence. The applicant’s letter to the Tribunal stated that she would not attend the scheduled hearing. The applicant did not attend the Tribunal on 26 June 2019 at 10.00 am and the Tribunal has received no explanation why she did not wish to attend the hearing.

6. In these circumstances, pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear

   CRITERIA FOR A PROTECTION VISA

7. See Annexure A

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. In her PVA the applicant claims that she is from Guangdong and she was the director of her own [business]. The applicant claims that she became a Christian in 2000 and embraced the religion. The Chinese Communist party did not allow the practice of Christianity, and demolished entire churches. They also were forced to remove crosses and to close churches down. The applicant claims she belong to a house church which is unregistered and is considered illegal. She claims that practising Christianity is forbidden, in China, and she has to do it in secret. She states that in 2010 the authorities cracked down on their house church as they were practising Christianity and they were all caught and detained for one week. They were tortured and physically abused. The Chinese authorities affirmed that churches were seen as cults and the church leaders were cult leaders. The applicant claims that she was arrested and charged with participating in an evil cult. She was warned that if she was caught again she would be persecuted, tortured, sent to labour camps, killed or would simply disappear. She continued to practice her religion in secret places and was in fear of her life. She claims that she came to Australia to continue practising Christianity and attending churches. She states that she will be baptised in the near future to prove her faith and commitment to Christ.

9. The applicant’s passport, included with her PVA application, indicates that the applicant departed China on a number of occasions travelling to Macau and returning to China. The applicant was granted two visas to travel to [Country] in 2010. The applicant arrived in Australia on 25 February 2016.

10. The applicant did not attend a protection Visa interview scheduled for 21 November 2016 by the Department.

11. The delegate of the Department referred to independent evidence that various reports appear to indicate that authorities in Guangdong province have traditionally taken a more liberal approach to house churches and relationships between authorities. Unregistered churches depend on local implementation of official policies. As the applicant left China legally on a genuine passport issued in her own name and in light of independent reports that indicate that China’s major airports have a centralised system of name matching alert capabilities and security monitoring at major airports is comprehensive, the delegate found that the applicant legally left China on a genuine passport and at the time of her departure did not have an adverse profile with the Chinese government and was not of interest to them. The delegate was not satisfied that the applicant faces harm for reason of her underground Christian faith or any related past act she has undertaken.

12. The applicant did not provide any further information to the Tribunal in support of her claims.

    REASONS AND FINDINGS

13. The applicant's identity has been accepted by the Department in her visa application. On the basis of her Chinese passport I accept that the applicant is a national of the PRC and is not a national or citizen of any other country. I accept that she does not have a right to enter and reside in any country other than China. Therefore I find that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that China is the applicant's “receiving country” for the purposes of s.36(2)(aa).

14. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. Similarly that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.

15. The applicant was put on notice that the department did not accept her claims. The applicant did not attend the Tribunal hearing and I was unable to explore the applicant’s claims with her. Without further information from the applicant I am unable to determine when the applicant first commenced practising Christianity in an underground church or whether the applicant was a Christian.

16. According to DFAT Report China 2017 there are state-sanctioned Catholic and (non-denominational) Protestant churches in China. They permit friends and family to hold small, informal prayer meetings without official registration. This, combined with the controlled nature of religious worship amongst registered Christian institutions, has led to the proliferation of sizeable unregistered Christian communities in both rural and urban China. Known as ‘house’ or ‘family’ churches (for Protestant organisations), and ‘underground’ churches (for Catholic organisations) these bodies are private religious forums that adherents create in their own homes or other places of worship. ‘House’ or ‘underground’ churches vary in size from around 30 to several thousand. Some churches deliberately restrict their numbers to avoid attracting adverse official attention. Government officials are more likely to scrutinize churches with foreign affiliations, or those that develop large or influential local networks, and house churches are under pressure to ‘sinicise’ their religious teaching. Leaders of both registered and unregistered churches are subject to greater scrutiny than ordinary worshippers. Leaders of registered churches must obtain permission to travel abroad. Church leaders (registered or unregistered) who participate in protest activity on behalf of their congregations or elsewhere are at high risk of official sanction, but this is likely to relate more to their activism than to their religious affiliation or practice.

17. Heightened government sensitivity over foreign influence creates difficulties for prominent members of unregistered churches seeking to travel abroad, particularly for religious events, and for foreign church organisations to work in China. NGOs report increasing difficulties for mainland Christians seeking to travel to Hong Kong or Macau for religious activities, and for Christian NGOs or activists from Hong Kong and Macau to travel to the mainland.

18. In light of the independent information, indicating that there are increasing difficulties for mainland Christians seeking to travel to Macau for religious activities without further information from the applicant, I am unable to accept that the applicant, after being detained for one week would be able to travel to Macau and return to China without any consequences.

19. The applicant claims that she became a Christian in 2000 and embraced the religion. She states that in 2010 the authorities crackdown on their house church and she was detained for one week, tortured and physically abused. She claims that she was arrested and warned. The applicant’s passport indicates that she departed China for Macau and return on at least three occasions in 2010. This would suggest that the applicant did not have a subjective fear of persecution.

20. Furthermore, DFAT report China 2017 states that Chinese law provides for foreign travel, emigration, and repatriation. A number of agencies within the Ministry of Public Security hold responsibility for monitoring entry and exit procedures at Chinese airports, including the Public Security Bureau, the Entry and Exit Authority, and the Frontiers Inspection Bureau. China’s major airports have a centralised system with name matching alert capabilities. Facial recognition technology is also widely deployed at all international checkpoints (air, land and sea). Security monitoring capabilities at airports are comprehensive, and departing passengers pass through several identity checks (including passport and ticket/boarding pass inspection) run by different agencies between arriving at the airport and boarding a flight. Therefore I do not accept that the applicant had an adverse profile when she departed China for Australia.

21. Therefore, without further information from the applicant, I do not accept that the applicant was a practising Christian or that the applicant was member of the underground church or that she practised Christianity in an underground or home church in China. I also do not accept that the applicant was detained, warned, arrested, charged for participating in an evil cult. I do not accept that she practised her religion in secret places or that she was in fear of her life.

22. As the applicant was able to exit and enter China in 2010 after her claimed detention and as the applicant was able exit China for Australia, without any harm, I am satisfied that the applicant departed China as the holder of a visitor visa to come to Australia.

23. The applicant did not suffer any harm in China.

24. The applicant claims that she came to Australia to continue practising Christianity and attending churches. She states that she will be baptised in the near future to prove her faith and commitment to Christ.

25. Subsection 5J(6) of the Act provides that conduct engaged in by a person in Australia must be disregarded in determining whether the person has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, unless the person satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening the claim to be a refugee.

26. As the applicant did not attend the Tribunal hearing and I am unable to explore the applicant’s claims and as I do not accept that the applicant is a Christian, as stated above, I do not accept that the applicant has continued practising Christianity and attending churches in Australia or that she will be baptised in the near future.

27. I have considered the claims of the applicant individually and cumulatively.  For the above reasons, I find that the applicant faced no serious harm in the past for a Convention related reason and I am not satisfied the applicant faces a real chance of serious harm upon return to China for a Convention related reason in the reasonably foreseeable future. I am satisfied that the applicant does not have a profile that would cause her to be of any interest to the authorities.

28. I am not satisfied the applicant has a well-founded fear of persecution for any Convention reason now, or in the reasonably foreseeable future if she returns to China.

29. As stated above, I reject the applicant’s claim she has suffered persecution or any harm in China and I do not accept that the applicant is a Christian.  Therefore I find remote the chance that the applicant, a business woman from Guangdong, will suffer significant harm on return to China as a practising Christian.

30. I am 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 the applicant will suffer significant harm ie that there is a real risk that she will be arbitrarily deprived of her life, that the death penalty will be carried out on her, that she will be subjected to torture, that she will be subjected to cruel or inhuman treatment or punishment or that she will be subjected to degrading treatment or punishment.

31. Accordingly, I find that the applicant does not satisfy the requirements of s.36(2)(aa) of the Act.  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).

32. 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).

33. 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.

34. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

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

    Lilly Mojsin
    Member

    Annexure A

    CRITERIA FOR A PROTECTION VISA

36. 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.

37. 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.

38. 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).

39. 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.  

40. 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

41. 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.

    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.

    …

    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.

    …