1703861 (Refugee)

[2019] AATA 4807

1703861 (Refugee) [2019] AATA 4807 (22 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1703861

COUNTRY OF REFERENCE:                  China

MEMBER:Nathan Goetz

DATE:22 July 2019

PLACE OF DECISION:  Sydney

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

Statement made on 22 July 2019 at 12:16pm

CATCHWORDS
REFUGEE – protection visa – China – religion – Falun Gong – lack of evidence – failed to attend interview with delegate – Tribunal attempted to contact applicant – no response – delayed lodging protection visa application – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 426A(1A)(a)
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. On 31 May 2016 the applicant, who the Tribunal accepts is a citizen of China, applied for a protection visa.

2. On 14 February 2017 a delegate for the Minister for Immigration refused to grant the applicant the protection visa. The applicant had failed to attend an interview with the delegate on 13 February 2017.

3. On 5 March 2017 the applicant applied to the Tribunal for a review of the refusal decision.

4. On 26 June 2019 the applicant was invited to attend a hearing at the Tribunal on 22 July 2019 at 10am. On 5 July 2019 the applicant returned the hearing invitation form and stated that he would not take part in the hearing. The Tribunal was unsure if the applicant was seeking to withdraw his application for review or asking that the Tribunal make a decision on his application on the material currently before it. The Tribunal was in this position because the applicant had not expressly consented to the matter being dealt with ‘on the papers’ which would have allowed the Tribunal to cancel the hearing and decide the matter forthwith. The Tribunal emailed the applicant to seek clarification of what he was asking the Tribunal to do but the Tribunal never received a response from the applicant.

5. As expected, the applicant did not appear at the hearing on 22 July 2019 at 10am. Having failed to appear at the hearing, the Tribunal is now empowered to either make a decision on the review without taking any further action: s.426A(1A)(a), or alternatively to dismiss the application for review with a right of reinstatement: .426A(1A)(a). As the applicant has indicated that he does not wish to attend a hearing in support of his claims, the Tribunal has decided to exercise its powers under s.426A(1A)(a) and to make a decision on the protection visa review application on the information that is currently before the Tribunal. It would be futile to dismiss the application for non-appearance and to allow the applicant to apply for a reinstatement of the proceeding when he has indicated that he does not wish to attend a hearing in support of his protection claims.

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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.

8. 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).

9. 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.  

10. 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

11. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The applicant is a Chinese citizen from Fuqing city, in the Fujian province of China. His claims for protection were contained in his written protection visa application which was signed by the applicant on 29 May 2016.

13. The applicant claimed that his religion, and the religion of his family, is Falun Gong. The applicant claims that the Chinese Government views his religion as an ‘evil cult’. He stated that he watched his family members practising Falun Gong regularly and that they had to do so secretly because Falun Gong was forbidden by law. The applicant claims that both he and his grandparents [undertook a specific task]. He wrote that he was caught and that when the authorities took them home the authorities destroyed his house. He wrote that he was harmed and received a threated to his life when he was arrested, and that the destruction of his house was done so the authorities could find evidence of Falun Gong and confiscate items that related to the families religion. The applicant wrote that he was traumatised by this ordeal and it made him fear for his life and the life of his family. He wrote that soon after, his parents sent him to Australia to study so he could forget all the memories about what had occurred. He claims that he fears for his life and that he will be persecuted if he returns to China and that the Chinese authorities will be responsible for his harm if he returns there.

14. He wrote that his parents did not think it was necessary to seek hep within China because such help is not available to anyone who practises Falun Gong in China, and that the applicant was sent to Australia to avoid imprisonment, which was done immediately after his arrest. He claimed that relocation within China is impossible and that he is not prepared to take the risk to return to China. He would not be able to relocate within China because he is wanted by the authorities and he will be subjected to cruel and inhuman punishment.

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

16. The mere fact that a person claims fear of persecution for a particular reason, or that they claims a real risk of significant harm does not establish that those claims are genuine. It is the applicant’s responsibility to satisfy the Tribunal that all the statutory elements for a protection visa are established. Although the concept of an onus of proof is not appropriate for administrative inquiries and decision-making, the relevant facts of the individual case will need to be supplied by the applicant. A decision-maker is not required to make the applicant’s case for them, nor is the Tribunal required to accept uncritically any of the allegations made by the applicant.

17. The applicant’s claims for protection are not sufficiently detailed enough for the Tribunal to be satisfied that the applicant will face a real chance of serious harm in China on account of his religious belief or the religious belief of his family. Nor are the claims sufficiently detailed enough to allow the Tribunal to be satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, the applicant faces a real risk of significant harm.

18. The applicant has not provided sufficient information about how he came to practice Falun Gong, the extent of his practice, nor has he provided sufficient information to establish that he is a genuine Falun Gong practitioner. He has not provided any meaningful detail about his alleged arrest, such as where this occurred, how long he was detained for, the circumstances of his release, nor when this arrest and detention occurred. Nor has the applicant provided sufficient detail about the demolition of his family home, such as when this occurred. Apart from a vague claim that he was harmed and received threats to his life, he did not provide sufficient information about what harm he was subjected to, or the nature of the threats made against him. Finally, it is not clear why the applicant delayed lodging a protection visa application until 31 May 2016 when he last arrived in Australia in March 2008.

19. Given the lack of meaning information as identified above, it is difficulty for the Tribunal to know what significant can be attached the applicant’s claims. The applicant has not provided enough information for the Tribunal to determine if the applicant has actually suffered harm in the past, or whether the claimed fear of harm in the future is ongoing.

    CONCLUSION

20. For the reasons given above, the Tribunal not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

21. 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).

22. 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

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

    Nathan Goetz
    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.

    …

    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.

    …