1709337 (Refugee) [2021] AATA 5536 (11 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1709337
COUNTRY OF REFERENCE: China
MEMBER:Dr Colin Huntly
DATE:11 November 2021
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 11 November 2021 at 10:14am
CATCHWORDS REFUGEE – protection visa – China – religion – Christian – Local church – particular social group – illegitimate and unregistered child – unmarried status – genuine and ongoing marriage relationship – physical assault – fear of arrest – education – delay in applying for protection – decision under review affirmed
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (the Act).
Applicant 1 and Applicant 2 both claim to be citizens of China. Applicant 1 applied for the visa on 19 June 2014. Applicant 2 was born in Australia and was added to the application of Applicant 1 from the date of his birth on [specified date].
The delegate refused to grant the visas on 11 April 2017.
Related Proceedings
Although not included in this application, Applicant 1 previously gave birth to a child in Australia on [specified date]. A separate application for a protection visa in Australia was also lodged for that child of Applicant 1 on 19 June 2014. That separate application for a visa was also refused by a delegate of the Minister and the child lodged a separate application for review with the Tribunal. By and with the consent of Applicant 1, the related application for review was heard and determined contemporaneously with the present review by the Tribunal as presently constituted. The decision in that review was made on the same date as…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
1709337 (Refugee) [2021] AATA 5536
Case
[2021] AATA 5536
Decision Date
CaseChat Overview and Summary
The Administrative Appeals Tribunal considered an application for a protection visa made by two applicants from China. The primary applicant claimed a well-founded fear of persecution in China due to her Christian faith, her association with a local church in Australia, and her status as an unwed mother to an unregistered child. The second applicant, the child, relied on the claims of the first applicant as a member of the same family unit.
The legal issues before the Tribunal were whether the applicants met the criteria for a protection visa under section 36(2)(a) of the Act, specifically whether they had a well-founded fear of persecution for reasons of religion or membership of a particular social group, and whether Australia had complementary protection obligations under section 36(2)(aa) of the Act. The Tribunal was required to reconsider the application afresh, having regard to the delegate's previous decision to refuse the visa.
The Tribunal affirmed the delegate's decision, concluding that the applicants did not face a real chance of persecution upon return to China for reasons of religion, or for being an unwed mother or the parent of an unregistered child. The Tribunal found that while religious observance was historically more freely practised in Fujian province, religious control had incrementally tightened in line with the rest of the country, and that the applicants' claims did not establish a well-founded fear of persecution for these reasons. Furthermore, the Tribunal found that none of the applicants' claims engaged Australia's complementary protection obligations.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
On 15 September 2021, the applicants provided a written response to the invitation dated 27 August 2021.WHAT IS THE BACKGROUND OF THIS APPLICATION?Introduction Applicant 1 seeks protection in Australia under s 36(2)(a) of the Act, and claims to hold a well‑founded fear of persecution in China now and for the foreseeable future for the essential and significant reason of her being a child from a family of conscientious church‑going Christians in China having a history of State-based persecution in that country. She also fears returning to China because of her renewed personal association with a Local Church in Australia, having been baptised into that communion in 2014. The applicant further fears persecution for having given birth to a child out of wedlock in Australia. Applicant 1 has also asserted that she was unable to marry the father of Applicant 2 because his parents did not approve of the relationship. Applicant 1 also asserts that Applicant 2 will experience persecution in China because they will be unregistered in that country and, therefore, will be unable to access state services including education. Applicant 2 also relies on the claims asserted by Applicant 1 as a member of the same family unit.Delegate’s decision In a written decision dated 11 April 2017, a delegate of the Minister refused to grant the applicants a protection visa on the basis that the applicants’ claims did not disclose an objectively well-founded fear of persecution on return to China now or in the reasonably foreseeable future for the purposes of s 36(2)(a) of the Act. The delegate also found that aspects of the applicant’s narrative were lacking in credibility when viewed in light of the extensive delay by Applicant 1 in seeking protection on arrival in Australia. The delegate further found that the applicants did not engage Australia’s complementary protection obligations at s 36(2)(aa) of the Act.[2][2]Delegate decision record, 11 April 2017, at (7)-(16).The Tribunal’s decision in summary After reconsidering the application for protection afresh, I have concluded, for different reasons, that the decision should be affirmed. In particular, I find that the applicants do not face a real chance of persecution if they return to China now and in the reasonably foreseeable future for the essential and significant reason of their actual or imputed religion; or for any reason associated with being an unwed mother or the parent of an unregistered child, or the child of such a person, or for any other reason from any person on return to China relevant to Australia’s refugee protection obligations under s 36(2)(a) of the Act. I further find that none of the claims raised by the applicant engages Australia’s protection obligations under s 36(2(aa) of the Act.CONSIDERATION OF CLAIMS AND EVIDENCE The criteria for a protection visa are set out in s 36 of the Act and Sch.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, the applicant 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.
Evidence
Evidence Before The Court
I further find that none of the claims raised by the applicant engages Australia’s protection obligations under s 36(2(aa) of the Act.CONSIDERATION OF CLAIMS AND EVIDENCE The criteria for a protection visa are set out in s 36 of the Act and Sch.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, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention). Australia is a party to the Refugees Convention and, generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it. 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 a protection 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 the applicant 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’). 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. Relevantly, I note DFAT Country Information Report: People’s Republic of China (3 October 2019) addresses religious observance in that country at [3.28]-[3.118]. In particular, the following comments regarding religious observance in Fujian province:3:33While a wide variety of religions are practised across China, they are generally able to thrive to a greater degree in Fujian province (Fujian). This is largely due to Fujian’s ethnic and linguistic diversity and historical geographical isolation from other parts of China. However, Fujian’s links with other areas of China increased following the mid-1950s completion of a railway line that connected Xiamen to other areas of China. …3.36DFAT assesses that individuals in Fujian have historically practised religion more freely within state- sanctioned boundaries than in other parts of China, as long as practices do not challenge the interests or authority of the Chinese Communist Party. However, DFAT assesses religious control in Fujian has incrementally tightened, albeit from a looser base, in line with the rest of the country …
Decision
Reasons for decision
In a written decision dated 11 April 2017, a delegate of the Minister refused to grant the applicants a protection visa on the basis that the applicants’ claims did not disclose an objectively well-founded fear of persecution on return to China now or in the reasonably foreseeable future for the purposes of s 36(2)(a) of the Act. The delegate also found that aspects of the applicant’s narrative were lacking in credibility when viewed in light of the extensive delay by Applicant 1 in seeking protection on arrival in Australia. The delegate further found that the applicants did not engage Australia’s complementary protection obligations at s 36(2)(aa) of the Act.[2][2]Delegate decision record, 11 April 2017, at (7)-(16).The Tribunal’s decision in summary After reconsidering the application for protection afresh, I have concluded, for different reasons, that the decision should be affirmed. In particular, I find that the applicants do not face a real chance of persecution if they return to China now and in the reasonably foreseeable future for the essential and significant reason of their actual or imputed religion; or for any reason associated with being an unwed mother or the parent of an unregistered child, or the child of such a person, or for any other reason from any person on return to China relevant to Australia’s refugee protection obligations under s 36(2)(a) of the Act. I further find that none of the claims raised by the applicant engages Australia’s protection obligations under s 36(2(aa) of the Act.CONSIDERATION OF CLAIMS AND EVIDENCE The criteria for a protection visa are set out in s 36 of the Act and Sch.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, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention). Australia is a party to the Refugees Convention and, generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.