1621751 (Refugee)

[2019] AATA 6690

1621751 (Refugee) [2019] AATA 6690 (6 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1621751

COUNTRY OF REFERENCE:                   China

MEMBER:Frank Russo

DATE:6 December 2019

PLACE OF DECISION:  Sydney

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

Statement made on 06 December 2019 at 12:25pm

CATCHWORDS

REFUGEE – protection visa – China – Religion – Christian – attended underground meetings – did not appear at Tribunal – unlawfully arrested – imprisoned – claims of torture – lack of evidence – not a genuine Christian – credibility issues – decision under review affirmed     

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 5K-LA, 36, 65, 426A, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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 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 is a [age]-year-old citizen of the People’s Republic of China (China).He arrived in Australia [in] July 2015 on a Visitor (subclass 600) visa. He applied to the Department of Immigration (the Department) for a Protection visa on 7 October 2015, claiming to fear harm because he is an underground Christian, and that in February 2015 he was detained for attending an underground meeting.

3. The applicant was interviewed by a delegate of the Minister on 31 August 2016. The delegate refused to grant the visa on 21 November 2016.

4. The delegate refused to grant the visa on the basis that the delegate did not accept the applicant to be a credible witness, did not accept the applicant’s claim that he was persecuted by Chinese authorities on account of him attending an unregistered church or that he would face persecution if he were to return to China. 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 the applicant will suffer significant harm.

5. The applicant applied for review of the delegate’s decision on 19 December 2016.

6. On 22 October 2019 the Tribunal wrote to the applicant advising that it had considered all the papers relating to his application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 4 December 2019. The applicant was advised that if he did not attend the scheduled hearing and a postponement was not granted, the Tribunal may make a decision on the review without further notice.

7. The applicant did not respond to the Tribunal’s invitation and the applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. No further communication was received from the applicant.

8. Based on the evidence before it, the Tribunal finds that the hearing invitation was sent to the email address nominated for the applicant’s authorised recipient. In these circumstances, and 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 applicant to appear before it.

9. The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five Convention reasons set out in s.5J of the Act in China and, if not, whether 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

10. 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.

11. 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.

12. 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).

13. 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.

14. 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

15. 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.

    CLAIMS AND EVIDENCE

16. In support of his application for review by the Tribunal, the applicant provided a copy of the delegate’s decision record. He did not provide the Tribunal with any further evidence in support of his application, other than a copy of the photograph page of his passport and the first page of a Bridging visa grant notice, dated 7 October 2015, which were both provided to the Tribunal on 4 February 2019 in connection with a Freedom of Information request.

17. The applicant’s visa application form contains the following information. The applicant was born in [year]. The applicant lived at an address in Fuqing City from his birth until July 2015. The applicant lists his most recent occupation in [China] ‘[in an occupation]’ from 2005 until June 2015 in Fuqing. The applicant’s wife and two children live in China.

18. The applicant’s claims are outlined in a statement attached to his Protection visa application. The applicant claims that he lived in Fuqing City, Fujian Province and that he is an underground Christian. He claims that once he had a bad temper and his blood pressure was high. He claims that he was introduced to Christianity by a former colleague of his, who told him about the Bible and slowly changed him. He started that in February 2013 he started to believe in God. He claims that [in] February 2015 he went to his colleague’s house to attend an underground meeting. He claims that the police arrived to search, and that everyone was unlawfully arrested and sent to [Prison]. He claims that he was imprisoned for almost one month and that in [Prison] he was tortured. He claims that the torture included guards encouraging prisoners to torment him, cursing at him and God, insulting him, threatening him, forcing him to do things against his will, such as writing a guarantee statement, forcing him to read evil books, verbal and physical abuse, including beatings and sleep deprivation, and brainwashing. He claims that he was released [in] March 2015 after his family paid a fine of [amount], and that he was asked by the police to report to them and not to participate in any meetings. He states that he fled China and came to Australia because of his faith. The applicant did not provide any further documents to the Department, other than his application form, which included his attached statement and a copy of his Chinese passport.

19. The applicant was interviewed by a delegate of the Minister on 31 August 2016. At the interview, the applicant provided information consistent with the claims made in his statement attached to his Protection visa application. In addition he claimed that if he were to return to China he would continue to practice his Christian faith with an unregistered Church and that as a result he may be incarcerated again or killed.

20. According to the delegate’s reasons for decision, the applicant was asked at the departmental interview what he has learned as a Christian since his conversion in February 2013. The delegate’s reasons record that the applicant was unable to state one thing that he had learned as a Christian since his conversion. The applicant was asked whether he had a letter of support from a Christian congregation in Australia, but indicated that he did not. The applicant was asked why he came to Australia, to which he responded that he came to Australia to make money and to live the remainder of his life in Australia. The applicant was asked whether he had provided false and misleading information to the Department in order to obtain an entry visa to Australia by stating he was coming to Australia for tourism purposes, when his real intention may have been to work. The delegate’s decision records that the applicant responded in the affirmative, and sought to rationalise his action by claiming that only by providing the false and misleading information would he be able to obtain entry to Australia. The delegate’s decision also records that the applicant was asked whether he had any evidence to substantiate his claim that he is a Christian and was persecuted in China on account of his religion, to which the applicant responded in the negative.

    ANALYSIS, FINDINGS AND REASONS

21. The Tribunal is satisfied on the basis of the copy of the applicant’s passport attached to his visa application, that he is a citizen of China. It has assessed him against that country for determining both whether the applicant has a well-founded fear of persecution for the purposes of s.36(2)(a) of the Act and the purposes of determining his “receiving country” for the purposes of s.36(2)(aa) of the Act.

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

23. 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 an 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. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

24. The Tribunal has considered the applicant’s claims contained in his statement attached to his application, but considers that overall the information provided is brief. Although it contains some detail with respect to the imprisonment which the applicant claims occurred [in] February 2015 and the abuse which he claims he experienced in prison, there is little explanation of why he became a Christian, nor of the Christian practices which he may have engaged in China, nor of why he considers himself to be a Christian. In addition, the applicant has not provided any evidence to suggest that he has continued to practice Christianity since his arrival in Australia and little information as to why he considers he would not be able to continue his beliefs if he returns to China. According to the information summarised by the delegate in his reasons for decision, the applicant was unable to state at the Departmental interview one thing he has learned as a Christian since his conversion in February 2013. The delegate’s decision records that the applicant was asked at the interview whether he had any evidence to substantiate his claim that he is a Christian and was persecuted in China on account of his religion, to which the applicant responded in the negative.

25. As indicated above, the applicant submitted a copy of the delegate’s decision with his application for review to the Tribunal. He is thereby taken to be on notice of the delegate’s summary of the Departmental interview and his findings, which raise doubt that the applicant is a genuine Christian.

26. If an applicant chooses not to attend a hearing, the Tribunal has only the information contained in the material before it from which to make its decision. In the present case, the applicant did not avail himself of the opportunity to appear before the Tribunal. Without the ability to explore his claims in significantly greater detail at hearing, or to test the questions of the credibility of the applicant’s claims, the Tribunal is not satisfied on the evidence before it that the applicant has, or would be harmed in China as a consequence of his religion. The Tribunal is not satisfied that the applicant is a genuine Christian. It is not satisfied that the applicant practiced Christianity in China, nor is it satisfied that he practices Christianity since his arrival in Australia, or that as a consequence of any religious practice he would face harm if he were to return to China. The Tribunal is not satisfied that there is a real chance he would suffer persecution because of his religion, or any other reason set out in s.5J(1), if he returns to China.

27. The evidence presented by the applicant to the Department is not sufficient to enable the Tribunal to be satisfied that the applicant faces a real chance of persecution for one or more of the five reasons set out in s.5J(1) of the Act in China or 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. The applicant has not provided the Tribunal with any further information in support of his claims, other than a copy of the photograph page of his passport and the first page of a Bridging visa grant notice, which were provided in connection with a Freedom of Information request.

28. It follows that, on the information before it, the Tribunal cannot be satisfied that the applicant faces a real chance of persecution involving serious harm in China for reasons of his religion, now, or in the reasonably foreseeable future. Accordingly, the Tribunal is not satisfied on the evidence before it that the applicant has a well-founded fear of persecution in China for one or more of the reasons contained in s.5J(1) of the Act.

    CONCLUSIONS

29. 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).

30. 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).

31. 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

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

    Frank Russo
    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.

    …