1621169 (Refugee)

[2019] AATA 6546

1621169 (Refugee) [2019] AATA 6546 (25 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1621169

COUNTRY OF REFERENCE:                   China

MEMBER:Tania Flood

DATE:25 September 2019

PLACE OF DECISION:  Sydney

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

Statement made on 25 September 2019 at 3:57pm

CATCHWORDS   
REFUGEE – protection visa – China – religion – Christianity – membership and activity in underground Christian church – failure to attend Departmental interview – non-appearance before the Tribunal – unable to test claims and establish facts – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 426A
Migration Regulations 1994 (Cth), Schedule 2

CASES
Luu v Renevier (1989) 91 ALR 39
MIEA v Guo (1997) 191 CLR 559
Prasad v MJEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275

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 and Border Protection on 11 November 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The first named applicant (“the applicant”) and his wife, the second named applicant, claim to be citizens of China. They applied for the visas on 16 March 2016. The delegate refused to grant the visas on the basis that there is not a real chance that the applicant would be a person of interest to authorities if he were to return to China, because of his religious faith. Therefore the delegate found that there is not a real chance of persecution for one or more of the reasons under s.5J(1)(a) of the Act.  The delegate was also 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.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.

7. 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

8. 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Summary of claims

9. In his application for a Protection visa the applicant provides the following:

10. He was born in Shanghai, China. He resided at one address in Yangpu District, Shanghai, before coming to Australia. He is a Han Christian. He completed twelve years of schooling in Shanghai. Before coming to Australia, he was employed at [a] company from 2002 to 2014, and at [another] company from 2014 to 2016.

11. He first arrived in Australia on a Visitor visa [in] March 2016.

12. In his statement attached to his application for a protection visa, the applicant made the following claims:

13. He and his wife are underground Christians. He was introduced to Christianity by his [relative] who suffered a severe [injury] and believes God saved him.

14. He started to attend underground meetings in March 2013 and later joined the underground Christian church.  Under his influence his wife also became a believer in Christ. From 2014, he held underground meetings in his house.

15. [In] July 2015, ten police officers ransacked his house and confiscated his laptop. The police arrested him and called him a cult leader. He was interrogated at [a specified] Police Department where he was questioned and tortured.

16. He claims he was illegally detained for a total of five days. After two nights at the police station, he was taken to a detention centre, where he was again questioned, insulted, and scolded by the guard and police officer.  

17. He was released [later in] July 2015. The police came to his house and threatened him. He claims that as he was under police surveillance, he could not leave China immediately with his wife.

18. He claims that many of the churchgoers were arrested and detained in the detention centre. The police tried to frame them and demanded that they admit to crimes they never committed. After they refused, they were tortured.

    Protection Visa Interview

19. The applicant was invited to attend a Protection visa interview scheduled for 7 November 2016 but did not attend.

    Review application

20. The applicant lodged an application for review with the Tribunal on 12 December 2016.  He attached a copy of the delegate’s decision to his application but did not provide any supplementary information.

21. By letter dated 22 August 2019 the Tribunal wrote to the applicants, via their authorised recipient, advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to give oral evidence and present arguments at a hearing on 25 September 2019 at 12:30 pm (NSW time).  The Tribunal was subsequently advised that the applicants had appointed a new authorised recipient.   On 11 September 2019 a courtesy copy of the hearing invitation was sent via email to the new authorised recipient. The Tribunal also sent the applicant SMS reminders prior to the scheduled hearing on 18 and 24 September 2019 on the number he provided on a change of contact details form which was sent to the Tribunal on 11 September 2019. 

22. The applicants did not appear before the Tribunal on the day and at the time and place at which they had been scheduled to appear, nor did they contact the Tribunal about their failure to attend.  The Tribunal is satisfied the applicants were properly notified of the hearing.  In these circumstances, pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review, without taking any further action to enable the applicants to appear before it.

    FINDINGS AND REASONS

23. The issue in this case is whether there is a real chance the applicants will suffer serious harm on return to China for reason of their race, religion, nationality, membership of a particular social group or political opinion, or alternatively whether there are substantial grounds for believing that as a necessary and foreseeable consequence of them being removed from Australia to China there is a real risk that they will suffer significant harm.  

24. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

25. Attached to the Department file are photocopies of the applicants’ passports which verify their claimed identities and nationalities.  In the absence of any information to the contrary the Tribunal accepts, for the purpose of this review, that the applicants are nationals of China.

26. The mere fact that an applicant claims to fear harm 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/s claimed.  It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[1]  Although the concept of onus of proof is inappropriate to administrative inquiries and decision-making[2], the relevant facts of the individual case will have to be supplied by the applicant, in as much detail as is necessary to enable the Tribunal to establish the relevant facts.  The Tribunal is not required to make the applicant’s case for him or her[3], nor is it required to accept uncritically any and all of the allegations made by an applicant[4].  The Tribunal acknowledges this guidance had been developed for the purposes of considering refugee protection claims, however, it is satisfied it is also materially applicable to the assessment of complementary protection claims.

    [1] MIEA v Guo & Anor (1997) 191 CLR 559 AT 596

    [2] Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288

    [3] Prasad v MJEA (1985) 6 FCR at 169-170; Luu & Anor v Renevier (1989) 91 ALR 39 at 45

    [4] Randhawa v MILGEA (1994) 52 FCR 437 at 451

27. The applicant claims that he and his wife are Christians and that he attended an underground Christian church in China.  He claims he was detained for five days in 2015 when a church gathering at his home was raided by the police.  Having been tortured while in detention and threatened after his release he and his wife decided to flee to Australia. 

28. The only information before the Tribunal is the applicant’s own assertion of these facts which is outlined in his written statement.  The Tribunal is unable to establish from this information whether the applicant or his wife was or is a genuine Christian and whether the events he described in China occurred. Without more evidence from the applicant than the evidence presently before it, the Tribunal cannot be satisfied about why the applicant left China in 2015, or whether he and his wife cannot or will not return to China because they fear harm there as he claims. If the applicants had attended the hearing, the Tribunal would have had the opportunity to discuss the claims with them in more detail and to test their veracity.  The Tribunal would have sought further information in relation to the matters raised.  The Tribunal would have used the opportunity of the hearing to discuss these issues with the applicants and given them the opportunity to explain the particular details of what they fear would happen if they return to China now or in the reasonably foreseeable future and the reasons why it would happen.  However, it was not possible to discuss any of these issues with them because, despite being advised by the Tribunal that it had considered all the material before it but was unable to make a favourable decision on that information alone, they did not attend a hearing and provided no further information or evidence in support of the claims.  The Tribunal has insufficient evidence to be satisfied that the events and circumstances that are raised are factual.  The Tribunal is therefore unable to establish the relevant facts in this matter and is not prepared to accept the claims.

29. On the available evidence, the Tribunal does not accept that the applicant or his wife was or is a genuine Christian.  The Tribunal is not prepared to accept that the applicant was detained in 2015 for holding an underground Christian gathering in his house and placed under surveillance when he was released.  Nor does the Tribunal accept that this is the reason behind the applicants’ decision to depart China.  It follows that the Tribunal is not prepared to accept that the applicants will suffer serious harm if they return to China for reason of being underground Christians.

30. The Tribunal is not satisfied that there is a real chance that the applicants will face serious harm for reason of race, religion, nationality, membership of a particular social group or political opinion, either now or in the reasonably foreseeable future, if they return to China.  Accordingly, the Tribunal is not satisfied that the applicants have a well-founded fear of persecution in China.  Therefore they do not satisfy the criterion at s.36(2)(a) of the Act. 

31. The Tribunal has also considered the alternative criterion in s.36(2)(aa) of the Act.  For the same reasons already articulated, the Tribunal is not satisfied that the available evidence supports that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to China, there is a real risk that they would suffer significant harm in the form of, arbitrary deprivation of life, or the death penalty being carried out, or torture, or cruel or inhuman treatment or punishment, or degrading treatment or punishment.  Therefore the applicants do not satisfy the requirements of s.36(2)(aa) of the Act.

32. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) of the Act for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c) of the Act and cannot be granted the visa.

    DECISION

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

    Tania Flood
    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.

    …