1728215 (Refugee)

[2022] AATA 3596

1728215 (Refugee) [2022] AATA 3596 (19 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Stanley Chan (MARN 0430097)

CASE NUMBER:  1728215

COUNTRY OF REFERENCE:                   China

MEMBER:Peter Papadopoulos

DATE:19 August 2022

PLACE OF DECISION:  Sydney

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

Statement made on 19 August 2022 at 2:11pm

CATCHWORDS

REFUGEE – protection visa – China – religion – Falun Gong – detention – fear of torture – applicant harboured a practitioner – limited Falun Gong practice in Australia – shop demolished – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Sun v MIBP [2016] FCAFC 52

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 to refuse to grant the applicant a Protection (class XA) visa (protection visa) under s.65 of the Migration Act 1958 (the Act).

2. The applicant, a citizen of the People’s Republic of China (PRC or China), applied for the visa on 1 August 2017. In his application form, the applicant claimed that he had provided accommodation in China to a friend who was a Falun Gong practitioner.  This led to the local authorities accusing him of being a Falun Gong practitioner, even thought he was not one.  The local authorities persecuted him – they “took down” his shop and “falsely imprisoned” him.  The local authorities also persecuted his family.  The applicant also claimed that if he returns to China, corrupt local officials will find him, falsely imprison him and severely torture him both mentally and physically.

3. The applicant attended his scheduled interview with the delegate on 23 October 2017.  He told the delegate that the events which led to him departing China in March 2017 commenced after he returned from visiting several [countries] in 2016. He claimed that he hid a Falun Gong practitioner, his friend [Friend A], in his [products] shop for a period in 2017.  He stated that he met [Friend A] five years earlier at a gym and decided to help [Friend A] even though the police and neighbourhood committee were looking for him. Some of [Friend A’s] Falun Gong students would visit the [products] shop. In May 2017, the police arrested and detained the applicant for harbouring [Friend A] and some of his students. He was detained for 4 or 5 days but did not admit to being a Falun Gong practitioner or divulge details relating to [Friend A] despite being offered assistance with receiving compensation for the pending demolition of his shop by local authorities.  He did not know why the police released him or whether he was the subject of an arrest warrant but did claim that the police threatened that they would take him to court and accuse him of being a Falun Gong practitioner.  He told the delegate that he had first started practising Falun Gong in September 2017, after his arrival in Australia, and that he saw the practice to be more of a physical exercise program than a religion.  He also told that delegate that if he returned to China, he feared that the police would again detain him, during which time they would deprive him of food and sleep.  He also feared that, if he returned to China, the local police would take court action against him and he would be sentenced to a term of imprisonment for:

   ·     being a Falun Going practitioner

   ·     assisting other Falun Gong practitioners

   ·     obstructing the police with their investigations because he did not provide them with the contact details of other Falun Gong practitioners and left China in breach of a requirement that he report to his local police station on a weekly basis.

4. The delegate refused to grant the visa on 26 October 2017 on the basis that the applicant was not a genuine and committed Falun Gong practitioner and that there was insufficient evidence before the delegate to convince him that the applicant’s claims represented his true circumstances.  

5. On 22 June 2022, the Tribunal wrote to the applicant advising that it had considered all the papers 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 on 27 July 2022. 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.

6. On 14 July 2022, the applicant’s representative wrote to the Tribunal and advised that the applicant would not attend the hearing and requested a decision on the papers. The representative also provided a signed statement from the applicant that was dated 14 July 2022.  This statement contained the following information in table format:

The reason I left China is:	I was persecuted by corrupt government officials.  The authorities framed me as a practitioner of Falun Gong, and persecuted me and my family in various ways.  I had to flee China to avoid government persecution.
If I go back to China, the following things will happen:	Corrupt government officials would find me, imprison me illegally, and even torture me. I have seen in the newspapers how the Chinese government treats people who are related to Falun Gong.  It was all bloody, and it was terrifying to think about.
I was hurt in China:	Because I provided accommodation for my friends who practised Falun Gong, the government thought I was practicing [sic.] Falun Gong too, and demolished my shop and illegally imprisoned me.
I have sought help in China:	Instead of protecting me, the government had inflicted all kinds of violence on me and did not respond to my complaints.
I didn’t move to other parts of China for safety:	I had no chance at all to relocate anywhere in China. China is a one-party dictatorship. In my case, the Chinese government did not help me, but used its power to oppress me.
If I go back, I will be hurt or abused:	If I go back to China, the Chinese government will find me through the network right away.  At that time, it will not only torture me physically, but also mentally destroy me.
The authorities will not protect me if I go back to China:	The Chinese government hates matters related to Falun Gong and will not listen to what I have to say. The fact that I am being framed cannot be clarified at all.
I can’t relocate to another place in China:	As soon as I appear in China, I will be illegally detained, and there is no way I can move to another area.  Corrupt government officials use their power to oppress powerless civilians.

1. The Tribunal agreed to the applicant’s request and the hearing was vacated. The applicant was advised that the Tribunal would make a decision on the papers.

   CONSIDERATION OF Claims and evidence

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

3. 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 because the person is a refugee.

4. 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 themself 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).

5. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion (refugee nexus reasons), there is a real chance they would be persecuted for one or more of those refugee nexus reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

6. 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.

7. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – Policy: Refugee and humanitarian - Complementary Protection Guidelines and Policy: Refugee and humanitarian - Refugee Law Guidelines – and relevant 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.

   Analysis, Findings and Reasons

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

9. The mere fact that a person claims fear from harm for a particular reason does not establish the genuineness of the fear or that it is ‘well-founded’ or for the reason claimed.  Likewise, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or that it amounts to ‘significant harm’.  It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[1] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish that claim.  The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims.  Nor does it have any responsibility or obligation to establish, or assist in establishing, the claim.  It remains for the applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision.  There is no burden upon the Tribunal to make out a case that an applicant has failed to adequately advance.[2] 

   [1] MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-170

   [2] Sun v MIBP [2016] FCAFC 52 at [69]

10. The Tribunal has significant problems with the applicant’s claims.  The evidence presented by the applicant to the Department and the Tribunal is not sufficiently detailed to enable the Tribunal to be satisfied that the applicant faces a real chance of persecution in China 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.

11. The applicant has provided insufficient information regarding:

    ·     his claimed relationship with [Friend A] including how their relationship had evolved and why he chose to harbour [Friend A] despite the risk involved

    ·     his claimed arrest and detention

    ·     the circumstances surrounding the demolition of his [products] shop including when he first became aware that this might occur, whether he engaged with or petitioned against the local authorities in relation to claiming compensation and, if so, the outcome of any claim for compensation

    ·     his claims in relation to him having to report to his local police station on a weekly basis and the threats of imprisonment made by those police officers.

12. The applicant has provided no details in relation to:

    ·     the persecution suffered by his family as a result of him being “framed” as a Falun Gong practitioner

    ·     whether he continues to practise Falun Gong, having claimed to have commenced practice in Australia in September 2017.

13. The applicant’s decision not to accept the Tribunal’s invitation to attend a hearing has left the Tribunal unable to address concerns it has regarding the lack of specificity of his claims.  Having regard to s.5AAA and the circumstances of this matter, including:

    ·     the fact that the applicant was on notice that the Tribunal was not satisfied of his claims

    ·     the applicant’s low level of engagement with the Tribunal,

    the Tribunal has decided to proceed to a decision on the papers.

14. Given the lack of information identified above, without more detail, it is difficult to know what significance can be attached to the applicant’s assertions and I am therefore unable to satisfied in relation to those claims.  The applicant has not provided any further information to the Tribunal to determine if he has suffered persecution in the past or if his fear is well-founded.

15. In view of the insufficient information and lack of detail contained in the applicant's claims, the Tribunal is not satisfied that the applicant has been harmed or otherwise involved with the police in China in the past as claimed or that he:

    ·     has ever practised Falun Gong, either in China or Australia

    ·     has ever assisted other Falun Gong practitioners

    ·     has been, or would be, perceived as a Falun Gong practitioner or a person who has assisted, or would assist, Falun Gong practitioners.

16. Based upon the above findings, the Tribunal is not satisfied that there is a real chance of the applicant facing serious harm, for any reason, now or in the reasonably foreseeable future if he were to return to China.

17. The Tribunal, therefore, is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Act. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).

18. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

19. For the same reasons, the Tribunal is not satisfied 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.

20. 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

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

    Peter Papadopoulos
    Member

    
    

    Attachment  -  Extract from Migration Act 1958

    5 (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.

    …

    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 them 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 family

    For 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 family

    For 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.

    ..

    36Protection visas – criteria provided for by this Act

    …

    (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.

    …