1722668 (Refugee) - [2023] AATA 3186

1722668 (Refugee) [2023] AATA 3186 (22 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1722668
COUNTRY OF REFERENCE:                   China
MEMBER:Louise Nicholls
DATE:22 June 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 June 2023 at 2:47pm

CATCHWORDS
REFUGEE – protection visa – China – religion – Catholic – member of underground church – arrest and persecution – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant claims to be a citizen of the People’s Republic of China (China) and is [age] years old. She was born in Fujian Province, China. [In] August 2015 she first arrived in Australia travelling on a Chinese passport as the holder of an Australian student guardian visa. She last arrived in Australia [in] July 2016 and has remained in Australia since that date.
The applicant applied for a protection visa on 23 December 2016. She provided a copy of her Chinese passport and a statement setting out her claims. The applicant was invited to attend an interview with the delegate in August 2017 but did not attend.
On 31 August 2017 the delegate of the Minister for Home Affairs refused to grant a protection visa under s.65 of the Migration Act 1958 (the Act) because the delegate was not satisfied that the applicant met the requirements for that visa.
This is an application for review of that decision, and it was made on 22 September 2017. The applicant provided the Tribunal with a copy of the delegate’s decision record.
The applicant appeared before the Tribunal on 27 March 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant gave evidence about her background, her migration history and her claims for protection.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION
The issue in this case is whether the applicant meets the refugee criterion and, if not, whether she is entitled to complimentary protection.
The relevant law is set out in the attachment.
Background
The applicant is [age] years old and was born in the Fuqing City district, Fujian Province, China. The applicant can speak, read, and write in Mandarin and is of Han ethnicity.
At the Tribunal hearing the applicant stated that her parents were retired and living in Fujian Province. She has one older brother and two sisters. Her brother is living [overseas] and one sister is living in Australia and the other…

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.

Continue reading 1722668 (Refugee)

Details

AGLC: 1722668 (Refugee) [2023] AATA 3186
Case: [2023] AATA 3186
Decision Date: 22 June 2023

CaseChat Overview and Summary

This matter concerned an application for a protection visa by an individual from China. The applicant claimed to be a member of an underground Catholic church and alleged arrest and persecution. The case came before the Tribunal, presided over by Louise Nicholls.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a protection visa, specifically the refugee criterion, and if not, whether she was entitled to complementary protection. A preliminary issue also arose regarding the validity and scope of a non-disclosure certificate issued by the Department, which purported to restrict access to certain information within the applicant's file relating to her son's student visa application.

The Tribunal considered the definition of a refugee under section 5H of the relevant Act, which requires a well-founded fear of persecution. It also examined the complementary protection criterion under section 36(2)(aa), which applies if there are substantial grounds for believing that removal from Australia would result in a real risk of significant harm. The Tribunal's reasoning on the non-disclosure certificate involved assessing whether the information was provided in circumstances imposing an obligation of confidence and possessed the necessary quality of confidentiality, referencing case law such as *SZTYV v MIBP*. Ultimately, the Tribunal found that the applicant did not satisfy the refugee criterion, nor did she meet the criteria for being a family member of a person holding a protection visa.

The Tribunal affirmed the decision under review, concluding that the applicant did not satisfy the requirements for the grant of a protection visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The relevant law is set out in the attachment.Background The applicant is [age] years old and was born in the Fuqing City district, Fujian Province, China. The applicant can speak, read, and write in Mandarin and is of Han ethnicity. At the Tribunal hearing the applicant stated that her parents were retired and living in Fujian Province. She has one older brother and two sisters. Her brother is living [overseas] and one sister is living in Australia and the other in China. She is married and her husband is living in China. He invested in a [business] in Guangdong some time ago, but that [business] shut down due to the impact of the COVID 19 pandemic. Her husband has returned to Longyan, Fujian and is investing in a [facility]. The couple have one son who is [age] years old. The applicant keeps in contact with her husband in China and they speak about once a week. The applicant attended primary and junior secondary school in Fujian Province, China. After she left school, she worked for [a] company in Longyan. Her son came to Australia as a student and is now working for a [company] on a work visa. Non-disclosure certificate A preliminary issue for consideration concerns the issue of the certificate restricting disclosure of certain information in the Departmental file pursuant to s. 438 of the Act. The Tribunal has received a Departmental digital file on which the delegate has placed a non-disclosure certificate pursuant to s.438(1) of the Act. The certificate purports to restrict folios which apply “to the relevant material in file number[deleted]”. The reason given for the restriction of information in certain folios is because they were given to the Department in confidence. The material in the file relates to the applicant’s son’s application for a student visa. There are two issues for the Tribunal; one is whether the certificate is a valid certificate, and the other is the nature of the information in the purportedly restricted folios and if the information should be disclosed to the applicant. In considering the validity of this certificate the Tribunal has taken into account case law on the issue. Documents or information may be subject to a non-disclosure notification if they were given to the Minister or an officer of the Department in circumstances imposing an obligation of confidence. For documents or information to have been given in confidence, the information must have the necessary quality of confidentiality. This means the material needs to have been given to the Minister or departmental officer by an external source or third party with the expectation that the material would be treated as confidential and would not be disclosed, and that the information not be public or common knowledge.[1] [1] See SZTYV v MIBP [2018] FCA 1076 (Steward J, 20 July 2018) at [42] where the Court considered that, when determining confidentiality, the application of relevant equitable principles concerning the existence of a duty of confidentiality to the facts of the production of a document or matter are relevant. An application for special leave to the High Court was dismissed: SZTYV v MIBP [2018] HCASL 382 (5 December 2018). On this issue the Court, citing Optus Networks Pty Ltd v Telstra Corporation Ltd [2010] 265 ALR 281 at [39]; and Coco v AN Clark (Engineers) Ltd [1969] RPC 41, considered that to be satisfied, the information or matter would need to have the necessary quality of confidence and have been received in circumstances importing an obligation of confidence. The information in question must also be identified with specificity.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 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 themselves 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). 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

Ratio Decidendi

Legal Principle Established

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION The issue in this case is whether the applicant meets the refugee criterion and, if not, whether she is entitled to complimentary protection. The relevant law is set out in the attachment.Background The applicant is [age] years old and was born in the Fuqing City district, Fujian Province, China. The applicant can speak, read, and write in Mandarin and is of Han ethnicity. At the Tribunal hearing the applicant stated that her parents were retired and living in Fujian Province. She has one older brother and two sisters. Her brother is living [overseas] and one sister is living in Australia and the other in China. She is married and her husband is living in China. He invested in a [business] in Guangdong some time ago, but that [business] shut down due to the impact of the COVID 19 pandemic. Her husband has returned to Longyan, Fujian and is investing in a [facility]. The couple have one son who is [age] years old. The applicant keeps in contact with her husband in China and they speak about once a week. The applicant attended primary and junior secondary school in Fujian Province, China. After she left school, she worked for [a] company in Longyan. Her son came to Australia as a student and is now working for a [company] on a work visa. Non-disclosure certificate A preliminary issue for consideration concerns the issue of the certificate restricting disclosure of certain information in the Departmental file pursuant to s. 438 of the Act. The Tribunal has received a Departmental digital file on which the delegate has placed a non-disclosure certificate pursuant to s.438(1) of the Act. The certificate purports to restrict folios which apply “to the relevant material in file number[deleted]”. The reason given for the restriction of information in certain folios is because they were given to the Department in confidence. The material in the file relates to the applicant’s son’s application for a student visa. There are two issues for the Tribunal; one is whether the certificate is a valid certificate, and the other is the nature of the information in the purportedly restricted folios and if the information should be disclosed to the applicant. In considering the validity of this certificate the Tribunal has taken into account case law on the issue. Documents or information may be subject to a non-disclosure notification if they were given to the Minister or an officer of the Department in circumstances imposing an obligation of confidence. For documents or information to have been given in confidence, the information must have the necessary quality of confidentiality. This means the material needs to have been given to the Minister or departmental officer by an external source or third party with the expectation that the material would be treated as confidential and would not be disclosed, and that the information not be public or common knowledge.[1] [1] See SZTYV v MIBP [2018] FCA 1076 (Steward J, 20 July 2018) at [42] where the Court considered that, when determining confidentiality, the application of relevant equitable principles concerning the existence of a duty of confidentiality to the facts of the production of a document or matter are relevant. An application for special leave to the High Court was dismissed: SZTYV v MIBP [2018] HCASL 382 (5 December 2018). On this issue the Court, citing Optus Networks Pty Ltd v Telstra Corporation Ltd [2010] 265 ALR 281 at [39]; and Coco v AN Clark (Engineers) Ltd [1969] RPC 41, considered that to be satisfied, the information or matter would need to have the necessary quality of confidence and have been received in circumstances importing an obligation of confidence. The information in question must also be identified with specificity.