1709338 (Refugee) [2021] AATA 5539 (11 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1709338
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 applicant a protection visa.
Statement made on 11 November 2021 at 10:15am
CATCHWORDS REFUGEE – protection visa – China – religion – Christian – Local church – particular social group – illegitimate and unregistered child – unmarried status – genuine and ongoing marriage relationship – social maintenance fee – 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 applicant a protection visa under
The applicant claims to be a citizen of the People’s Republic of China (China). The applicant was born in Australia on [date]. The applicant’s mother is also separately an applicant for a protection visa. The applicant’s mother applied for the visa on the applicant’s behalf on 19 June 2014, relying derivatively on the mother’s own protection claims.[1]
[1]Those claims were addressed contemporaneously, but separately, in the related Tribunal review decision Tribunal Ref: 1709337 by the Tribunal as presently constituted.
The delegate refused to grant the visas on 11 April 2017.
Related proceedings
As indicated, a separate application for a protection visa in Australia was also lodged by the mother of the applicant on 19 June 2014. That separate application for a visa was also refused by a delegate of the Minister, and the applicant’s mother lodged a separate application for review with the Tribunal, also on 19 June 2014. By and with the consent of the mother of the applicant, the related application for review was heard and determined contemporaneously with the present…
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
1709338 (Refugee) [2021] AATA 5539
Case
[2021] AATA 5539
Decision Date
CaseChat Overview and Summary
The applicant, a child, sought a protection visa in Australia, claiming a well-founded fear of persecution in China due to his mother's Christian faith and her association with a local church, as well as his own status as an illegitimate and unregistered child. The applicant also asserted hardship due to his parents' inability to marry and his consequent lack of access to state services, including education. The matter came before the Tribunal for reconsideration after a delegate of the Minister had previously refused the visa.
The Tribunal was required to determine whether the applicant met the criteria for a protection visa under s 36(2)(a) of the Migration Act 1958 (Cth), specifically whether he had a well-founded fear of persecution for reasons of religion or membership of a particular social group, or under s 36(2)(aa) concerning complementary protection. The Tribunal also had to consider the credibility of the applicant's claims in light of the delay in seeking protection.
The Tribunal affirmed the delegate's decision to refuse the visa, albeit for different reasons. It found that the applicant did not face a real chance of persecution upon return to China for reasons of religion, being born out of wedlock, or being an unregistered child. The Tribunal concluded that these claims did not engage Australia's refugee protection obligations under s 36(2)(a) of the Act, nor did they engage the complementary protection obligations under s 36(2)(aa). The Tribunal noted that while religious observance in Fujian province historically occurred more freely, religious control had incrementally tightened in line with the rest of the country.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
On 15 September 2021, the applicant’s mother provided a written response to the invitation dated 27 August 2021 on behalf of the applicant.WHAT IS THE BACKGROUND OF THIS APPLICATION?Introduction The applicant seeks protection in Australia under s 36(2)(a) of the Act, and derivatively claims to hold a well‑founded fear of persecution in China now and for the foreseeable future for the essential and significant reason of his mother being a child from a family of conscientious church-going Christians in China experiencing State-based persecution in that country. The applicant also derivatively fears returning to China because of his mother’s renewed personal association with a Local Church in Australia, his mother having been baptised into that communion in 2014. The applicant further fears persecution for having been born out of wedlock in Australia. The applicant has also asserted that he faces ongoing hardship on return to China because his mother is unable to marry his father because their parents do not approve of his parents’ relationship. The applicant also asserts that he will experience persecution in China because he will be unregistered in that country and, therefore, be unable to access state services including education. 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 applicant’s 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 his mother in seeking protection on her arrival in Australia. The delegate further found that the applicant does not engage Australia’s complementary protection obligations at s 36(2)(aa) of the Act.[3][3]Delegate decision record, 11 April 2017, at (6)-(15).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 applicant does not face a real chance of persecution if he returns to China now and in the reasonably foreseeable future for the essential and significant reason of his or his mother’s actual or imputed religion; or for any reason associated with being born out of wedlock or an unregistered child, 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. 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. 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 (DFAT) 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 applicant’s 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 his mother in seeking protection on her arrival in Australia. The delegate further found that the applicant does not engage Australia’s complementary protection obligations at s 36(2)(aa) of the Act.[3][3]Delegate decision record, 11 April 2017, at (6)-(15).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 applicant does not face a real chance of persecution if he returns to China now and in the reasonably foreseeable future for the essential and significant reason of his or his mother’s actual or imputed religion; or for any reason associated with being born out of wedlock or an unregistered child, 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. 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.