1714128 (Refugee) - [2021] AATA 839

1714128 (Refugee) [2021] AATA 839 (19 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1714128
COUNTRY OF REFERENCE:                   China
MEMBER:Nicholas McGowan
DATE:19 March 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made 19 March 2021 at 11:42pm

The first named applicant (the ‘applicant’) applied to the Tribunal on 2 July 2017 for a review of her (and the secondary applicants) protection visa (Subclass XA-866) refusals by the Minister’s delegate (refused on 21 June 2017).
The applicant is married to the second-named applicant, who the Department has been satisfied is her de facto (as is outlined in the delegate’s ‘Decision record’ (dated 21 June 2017) a copy of which the applicant has provided to the Tribunal). The third named applicant is the child of the applicant and second-named applicant, born [date] in Australia, during a period the applicants were both unlawful non-citizens.
None of the applicants are a member of a family unit as a non-citizen in respect of whom the Minister has been satisfied Australia has protection obligations and who holds a Protection visa of the same class as that applied for by the applicant: Section 36(2)(b) and Section 36(2)(c) of the Migration Act 1958 (the Act).
Mandatory Considerations
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 - Refugee Law Guidelines and PAM3 Refugee and humanitarian - Complementary Protection Guidelines. It has also taken into account the relevant country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, China Country Information Report, to the extent that it is relevant to the decision under consideration.
Migration history
The applicant first arrived in Australia [in] October 2008 on a [student visa].
The second-named applicant first arrived (prior to the applicant) [in] April 2008 on a [student visa].
The applicant departed Australia [in] December 2009 and returned [in] March 2010.
On 15 March 2011 the applicant and second-named applicant became unlawful non-citizens upon the expiry of their student visas).
On [date] the third named applicant is born to the applicant and second-named applicant.
On 20 January 2015 the applicants (all three) lodged applications for protection (Subclass 866 visas).
Identity
The Department of Immigration has previously accepted that each applicant’s identity is as claimed. The applicant has provided the department with a copy of her Chinese passport bio-page.
There is no evidence or claim before the Tribunal that any of the documents provided is a bogus document as defined in Section 51 of the Act.
In addition (to the above), no check of the Department’s relevant systems (as referred to by the Minister’s delegate in the Decision record of 21 June 2017), raises any concerns with the relevant authorities that any of the applicant’s has given a false identity.
Given the above and based…

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: [2021] AATA 839
Decision Date: 19 March 2021

CaseChat Overview and Summary

The applicants, who are nationals of the People's Republic of China, sought protection visas after their student visas expired and they became unlawful non-citizens. The dispute before the court concerned the review of a decision to affirm the refusal of their protection visa applications. The applicants' claims for protection were based on allegations of religious persecution, political opinion, and membership of a particular social group, stemming from their mother's involvement with a church in China and her subsequent arrest after protests against domestic violence.

The court was required to determine whether the applicants had established a well-founded fear of persecution for reasons of religion, political opinion, or membership of a particular social group, as defined by the Migration Act 1958. Specifically, the court had to consider if there were substantial grounds for believing that, as a necessary and foreseeable consequence of their removal to China, the applicants faced a real risk of suffering significant harm, including torture, cruel, inhuman, or degrading treatment or punishment. The court also had to assess the credibility of the applicants' claims in light of the available country information and the absence of documentary evidence.

The court found that the applicants had not satisfied the Tribunal that there were substantial grounds for believing they would suffer significant harm if returned to China. While acknowledging the applicants' identity and their status as nationals of China, the court noted the lack of documentary evidence to support their claims. The court considered the relevant country information and policy guidelines, including Ministerial Direction No. 56, and found that the applicants' claims were not consistent with the information available. Consequently, the Tribunal was not satisfied that the applicants had a well-founded fear of persecution or faced a real risk of significant harm.

The Tribunal affirmed the decision not to grant the applicants protection visas.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Therefore, for the reasons above the Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to China, there is a real risk the applicants will suffer significant harm.Conclusions The Tribunal affirms the decision not to grant the applicants protection visas.Nicholas McGowanMemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…

Ratio Decidendi

Legal Principle Established

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 - Refugee Law Guidelines and PAM3 Refugee and humanitarian - Complementary Protection Guidelines. It has also taken into account the relevant country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, China Country Information Report, to the extent that it is relevant to the decision under consideration.Migration history The applicant first arrived in Australia [in] October 2008 on a [student visa]. The second-named applicant first arrived (prior to the applicant) [in] April 2008 on a [student visa]. The applicant departed Australia [in] December 2009 and returned [in] March 2010. On 15 March 2011 the applicant and second-named applicant became unlawful non-citizens upon the expiry of their student visas). On [date] the third named applicant is born to the applicant and second-named applicant. On 20 January 2015 the applicants (all three) lodged applications for protection (Subclass 866 visas).Identity The Department of Immigration has previously accepted that each applicant’s identity is as claimed. The applicant has provided the department with a copy of her Chinese passport bio-page. There is no evidence or claim before the Tribunal that any of the documents provided is a bogus document as defined in Section 51 of the Act. In addition (to the above), no check of the Department’s relevant systems (as referred to by the Minister’s delegate in the Decision record of 21 June 2017), raises any concerns with the relevant authorities that any of the applicant’s has given a false identity. Given the above and based on the information in the applicant’s Department of Immigration file, each applicant has satisfied the Tribunal of their identity as outlined above.Receiving country As the Tribunal has found the applicant to be a national of the People’s Republic of China, and there is no evidence (or claim) before the Tribunal that any of the applicants holds any other citizenship or have a current right to enter or reside in a third country) the Tribunal accepts section 36(3) of the Act does not apply to them. Accordingly, the Tribunal finds that for the purposes of this review, China is the receiving country.Protection claims The applicant’s protection visa application forms outline the protection claim/s. In the relevant Form, the applicant identified “China (PRC)” (in response to question number 43), as the country from which protection in Australia is being sought. In response to question 44 (Why did you leave that country?) the applicant writes:“I was born in [Village 1], [Town 1], Fujian City, Fujian Province, China. My mother was a teacher at [Village 1] Primary School, the only primary school in my home village. Many villagers, including myself, were students of my mother, and she enjoyed a good reputation.My father, however, was a drunkard. He often beat up or mistreated my mother after he got drunk. It was quite common in the rural area like my hometown, which was simply regarded as ‘domestic dispute’ instead of ‘domestic violence’. The police or local officials failed to genuinely protect or help my mother through my mother reported them about her sufferings for many times. In the end, my mother had to divorce my father in 2000.”