1709870 (Refugee) - [2020] AATA 1270

1709870 (Refugee) [2020] AATA 1270 (28 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1709870
COUNTRY OF REFERENCE:                   China
MEMBER:Anne Grant
DATE:28 April 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.

Statement made on 28 April 2020 at 2:43pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Christianity – Local Church member – Shouter – designated as a ‘xie jiao’ organisation – persecution under the guise of Chinese criminal law – whether law of general application – application of law in a discriminatory way – selectively enforcement against Local Church members – credibility assessment – level of knowledge of faith – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
NAVZ v MIMIA [2015] FCA 13
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 on 12 April 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of China, applied for the visas on 11 January 2017. The delegate refused to grant the visas on the basis that she did not accept that the applicants were members of the Local Church (though she did accept that they are Christians), and found that there was not a real chance that they would suffer serious harm in China on account of their religion or for any other reason. The delegate also found that there was not a real risk of significant harm if they were returned to China.
The first applicant is a Chinese national who was born in [Fujian] Province, in the People’s Republic of China on [date].[1] Her husband, the second applicant was born in [Fujian Province], in the People’s Republic of China on [date] The pair met while in Australia and were married [in] October 2016 in Melbourne.[2] The couple have a son [who] was born in [Victoria], on [date].[3] The child is the subject of a related application for protection also before me, based on the claims of his parents. A separate statement of reasons for decision will be made in the child’s case (Case number 1709871).
[1] [Department file number], f. 89.
[2] [Department file number], ff. 94, 98.
[3] [Department file number], f. 99.
The first and second applicants attended a hearing on 13 February 2020 and gave evidence separately. The hearing was assisted by an interpreter in the Mandarin language. The hearing was held contemporaneously with application number 1709871,…

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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Details

Case: [2020] AATA 1270
Decision Date: 28 April 2020

CaseChat Overview and Summary

This matter concerned an application for a protection visa by two applicants from China. The central dispute revolved around whether the applicants qualified as refugees or, alternatively, whether Australia had protection obligations towards them under the complementary protection criterion. The decision was made by Anne Grant.

The court was required to determine whether the applicants met the definition of a refugee under section 36(2)(a) of the relevant Act. If they did not, the court had to consider whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of their removal to China, they would face a real risk of suffering significant harm, as per section 36(2)(aa). This involved assessing the credibility of the applicants' claims regarding their religious beliefs and practices, specifically their affiliation with the Local Church, which the applicants contended was designated as a 'xie jiao' organisation by the Chinese government.

The court considered the applicants' claims that their religious activities, particularly their involvement with the Local Church and their desire to preach the gospel, would expose them to persecution in China. The applicants argued that the Chinese government's laws, while appearing general, were selectively enforced against members of unregistered religious organisations like the Local Church. The court also had to assess the applicants' level of knowledge of their faith and the sincerity of their beliefs. The decision under review was ultimately remitted.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The issue in this case is whether the applicants are refugees and, if not, whether there are substantial reasons for believing that there is a real risk that they will suffer significant harm as a necessary and foreseeable consequence of being returned to China. CONSIDERATION OF CLAIMS AND EVIDENCE The first applicant’s written claims for protection were as follows: ·The first applicant’s father was not religious, but members of her extended family were, and from an early age she attended a local house church.[4] The second applicant’s family is Catholic. ·The first applicant claims that her family owned a small [business] and in 2009 were opposed to an expropriation plan by the local government, which the first applicant claims led to an increase in antisocial behaviour around the [business], as well as harassment in the form of “regular inspections” by the Industrial & Commerce Bureau and the Taxation Office. The first applicant claims that her family later learned that these inspections were triggered by the authorities’ displeasure that the family would not sell its land to the government. The applicant’s family suffered economically as a result and could no longer support the applicant’s study expenses in Australia.·The first applicant quit her studies in 2010 and began working but was fired following an industrial accident. At this time, her family asked her to return to China to help them earn money and informed her that they had arranged a marriage, but she refused as she had no interest in carrying on her father’s business and did not want to live the same way her parents did. ·The first applicant attended some local church gatherings in Australia but stopped attending after other unlawful non-citizen church attendees were detained by the Department and placed in detention. Afraid she would suffer the same fate, the applicant stopped attending church and moved to a remote area and keeping a low profile. ·In 2014, the first applicant moved to Melbourne and met her husband. They decided to get married, but the first applicant’s family didn’t agree to their relationship because her husband’s family were Catholic, and she claimed they could not afford the huge dowry asked for by her family. Both families further did not support the applicants’ faith and did not bless the union, and the applicants claim not to have told their parents about their son, believing that if they were to return to China, their families “were sure to take every opportunity to break up [their] marriage.” Nonetheless, the first applicant indicated in her visa application that she is “sometimes” in contact with her family by telephone.·In 2016, the applicants began attending a Baptist church in [a suburb], where they were baptised [in] October 2016, the day before their wedding. The applicants learned through [Church 1] about branches of the Local Church operating in Melbourne and began attending the Local Church congregations. [Between] October 2016, when they were baptised into the Baptist faith, and [November] 2016, when the first applicant signed her statement of claims, the applicants were re-baptised into the local church. The applicants claim that “the new atmosphere in a new church instilled new vitality into [their] bodies, and [they] felt as if [they] had been rejuvenated again.”·The applicants claim that, as Christians, they could not attend Local Church congregations or preach the gospel in China. The applicants contend that the Chinese governments recognises only the official Patriotic Church, and all other house churches operate underground and in an environment of persecution. By way of example, the first applicant claims that in 2015 her cousin was arrested for preaching the gospel in China, while the cousin’s local church congregation was investigated and closed by the government. The applicants hope to remain with their present church preaching the gospel and claim that through their “persuasion” a lot of people had converted to Christianity.[4] [Department file number], f. 94.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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 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. The issue in this case is whether the applicants are refugees and, if not, whether there are substantial reasons for believing that there is a real risk that they will suffer significant harm as a necessary and foreseeable consequence of being returned to China. CONSIDERATION OF CLAIMS AND EVIDENCE The first applicant’s written claims for protection were as follows: ·The first applicant’s father was not religious, but members of her extended family were, and from an early age she attended a local house church.[4] The second applicant’s family is Catholic. ·The first applicant claims that her family owned a small [business] and in 2009 were opposed to an expropriation plan by the local government, which the first applicant claims led to an increase in antisocial behaviour around the [business], as well as harassment in the form of “regular inspections” by the Industrial & Commerce Bureau and the Taxation Office. The first applicant claims that her family later learned that these inspections were triggered by the authorities’ displeasure that the family would not sell its land to the government. The applicant’s family suffered economically as a result and could no longer support the applicant’s study expenses in Australia.·The first applicant quit her studies in 2010 and began working but was fired following an industrial accident. At this time, her family asked her to return to China to help them earn money and informed her that they had arranged a marriage, but she refused as she had no interest in carrying on her father’s business and did not want to live the same way her parents did. ·The first applicant attended some local church gatherings in Australia but stopped attending after other unlawful non-citizen church attendees were detained by the Department and placed in detention. Afraid she would suffer the same fate, the applicant stopped attending church and moved to a remote area and keeping a low profile. ·In 2014, the first applicant moved to Melbourne and met her husband. They decided to get married, but the first applicant’s family didn’t agree to their relationship because her husband’s family were Catholic, and she claimed they could not afford the huge dowry asked for by her family. Both families further did not support the applicants’ faith and did not bless the union, and the applicants claim not to have told their parents about their son, believing that if they were to return to China, their families “were sure to take every opportunity to break up [their] marriage.” Nonetheless, the first applicant indicated in her visa application that she is “sometimes” in contact with her family by telephone.·In 2016, the applicants began attending a Baptist church in [a suburb], where they were baptised [in] October 2016, the day before their wedding. The applicants learned through [Church 1] about branches of the Local Church operating in Melbourne and began attending the Local Church congregations. [Between] October 2016, when they were baptised into the Baptist faith, and [November] 2016, when the first applicant signed her statement of claims, the applicants were re-baptised into the local church. The applicants claim that “the new atmosphere in a new church instilled new vitality into [their] bodies, and [they] felt as if [they] had been rejuvenated again.”·The applicants claim that, as Christians, they could not attend Local Church congregations or preach the gospel in China. The applicants contend that the Chinese governments recognises only the official Patriotic Church, and all other house churches operate underground and in an environment of persecution. By way of example, the first applicant claims that in 2015 her cousin was arrested for preaching the gospel in China, while the cousin’s local church congregation was investigated and closed by the government. The applicants hope to remain with their present church preaching the gospel and claim that through their “persuasion” a lot of people had converted to Christianity.[4] [Department file number], f. 94.