1727039 (Refugee)

[2023] AATA 2461

1727039 (Refugee) [2023] AATA 2461 (13 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1727039

COUNTRY OF REFERENCE:                   China

MEMBER:Mr S Norman

DATE:13 June 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 June 2023 at 11:30am

CATCHWORDS
REFUGEE – protection visa – China – religion – Shouters – meeting attacked, applicant and others arrested, applicant taken to labour camp and abused – departed lawfully on own passport – applied after period as unlawful non-citizen – no attendance at department interview or tribunal hearing – applicant’s responsibility to supply facts to establish claims – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36(2)(a), (aa), 65, 424(2), 426A
Migration Regulations 1994 (Cth), Schedule 2

CASES
Luu v Renevier (1989) 91 ALR 39
MIEA v Guo (1997) 144 ALR 567
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MIEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 24 October 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant who claims to be a citizen of China, applied for the visa on 18 April 2017. The Department delegate’s decision was not lodged with the Tribunal.

   CRITERIA FOR A PROTECTION VISA

2. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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, he or she 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.

   Mandatory considerations

3. 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.

   CONSIDERATION OF Claims and evidence

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

5. After having been advised of the consequences of so doing (by Department letter), the applicant failed to attend the Department interview scheduled for 24 October 2017. No reason for his non-attendance was provided. The applicant also failed to respond to the Tribunal s.424(2) letter of 19 May 2023. No reason for his non-response was provided.

6. By hearing invitation letter dated 15 May 2023 (dispatched by email), the Tribunal advised the applicant it had considered all the material before it relating to his application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing commencing at 10:30am on 13 June 2023.

7. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. The Tribunal also sent two SMS hearing reminder texts to the applicant shortly prior to the hearing (in the Tribunal CASEMATE database, both were noted to have been unsuccessful).

8. The applicant neither responded to the aforementioned hearing invitation letter nor appeared at the time and date of the scheduled hearing, and nor did he otherwise materially contact the Tribunal prior to this decision being made.

9. After then considering the evidence in this case, pursuant to s.426A of the Act the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

   The applicant’s claims:

10. The applicant (DOB: XXX) lawfully departed China on XXX 2014 and on his own passport (expiry date: XXX). The applicant did not claim to have experienced any problem in departing China.[1] He then lawfully entered Australia on XXX 2014, on a Visitor visa. That visa remained valid for two years and ceased to be valid on XXX 2015. The applicant then remained unlawfully in Australia for the next two years. On XXX 2017, the applicant lodged a Protection visa (PV) application. He was granted an associated Bridging visa.

    [1] PDF – p. 40 (‘PDF’ refers to the merged Department file in the Tribunal CASEMATE database).  

11. Next, in the PV form,[2] the applicant claimed he departed China so that he can practice his religious belief, Shouter, without being harmed. He said Shouters vent their anger through rituals which did not harm anyone and this allowed them to live peaceful lives and help the community. The Chinese government was said to believe the Shouters are violent due to the noise they make. The applicant said the Shouters place of worship was targeted by unidentified men who attacked them and arrested all persons in attendance. They were treated like criminals even though they surrendered peacefully. The applicant was taken to a labour camp and forced to work as punishment for being a Shouter. The applicant also suffered abuse from the guards, he was exhausted from the work and he was hit across his chest and stomach.

    [2] PDF – from p.51.

12. The applicant said that in Australia he can continue to practice his religious beliefs without persecution. He feared that if returned to China he would be abused and arrested again. The applicant also said he was unable to relocate within China as he could be targeted anywhere.

    Assessing the applicant’s claims:

13. The Tribunal has seen a photocopy of the applicant’s Chinese passport on the Department file and, based on that evidence, the Tribunal will accept the applicant is a citizen of China and that China is his receiving country. However, the mere fact that an applicant claims to fear harm for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason/s claimed. Further, the Tribunal is not required to accept uncritically any and all the allegations made by an applicant (Randhawa v MIEA (1994) 52 FCR 437, p.451). That being said, the applicant did not provide sufficient detail to satisfy the Tribunal (ie) that he was a Shouter Christian, that he had engaged in that religion in China and/or Australia, that he had been detained in China, and/or why he was able to depart China lawfully and without any claimed problem, if he may have been of some continuing adverse interest to the Chinese authorities.

14. It remains for the applicant to satisfy the Tribunal that all of the statutory elements for the grant of protection are made out (MIEA v Guo & Anor (1997) 144 ALR 567 p.596); and although the concept of the onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 p.288), the relevant facts of the individual case will have to be supplied by the applicant themselves, in as much detail as is necessary to enable the decision maker to establish the facts. A decision maker is not required to make the applicant’s case for him or her (Prasad v MIEA (1985) 6 FCR 155 pp.169-70; Luu & Anor v Renevier (1989) 91 ALR 39 p.45). The Tribunal acknowledges this guidance had been developed for the purposes of considering refugee protection claims, however, I am satisfied it is materially applicable to the assessment of complementary protection claims.

15. That said, based on the claims he has provided, the Tribunal is not satisfied all the statutory elements for the grant of protection are made out. Accordingly, I do not accept the applicant has a well-founded fear of persecution for a reason prescribed in the Act; or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm.

16. Neither is there any issue, squarely raised by the evidence though not articulated, that has satisfied the Tribunal the applicant has a real chance of suffering serious or significant harm in China.  

    Finding:

17. For the reasons given above, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a). Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal considered the alternative criterion in s.36(2)(aa). However, and for the same reasons, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

18. 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

19. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Mr S Norman
    Member