1729817 (Refugee) - [2020] AATA 1547

1729817 (Refugee) [2020] AATA 1547 (20 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1729817
COUNTRY OF REFERENCE:                   China
MEMBER:Louise Nicholls
DATE:20 February 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 February 2020 at 3:40pm
CATCHWORDS
REFUGEE – protection visa – China – Federal Circuit Court remittal – religion – membership and activity in Roman Catholic church in Australia – original motivation as basis for claim for protection, but later genuine commitment – friend and father in China arrested, questioned and threatened – country information – status of Roman Catholics in China – registered and unregistered churches – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 425, 438(1)
Migration Regulations 1994 (Cth), Schedule 2
Administrative Appeals Tribunal Act 1975 (Cth), ss 19A(1), 19D(4)
CASES
MIBP v SZMTA; CQZ15 v MIBP; BEG15 v MIBP [2019] HCA 3
MZXRE v MIAC (2009) 176 FCR 552
SZEPZ v MIMA (2006) 159 FCR 291
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 he is a citizen of the People’s Republic of China (China) and is [Age] years old. He claims he was born in Fuzhou, Fujian Province, China. [In] January 2008 he arrived in Australia travelling on a Chinese passport with an Australian student visa.
The applicant applied for a protection visa on 23 October 2013. The applicant attended an interview at the Department of Immigration on 3 March 2014.
On 7 October 2014 a delegate of the Minister for Immigration 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. The applicant has sought review from the Tribunal.
Procedural history
The applicant sought review of the delegate’s decision at the Refugee Review Tribunal (RRT) on 23 October 2014.
The Tribunal, differently constituted (Tribunal 1), affirmed the delegate’s decision on 26 November 2015[1]. [In] March 2016 the Federal Circuit Court ordered, by consent of all parties, that the decision of the Tribunal be quashed and the Tribunal was directed to determine the application according to law. The Minister conceded that the Tribunal had failed to consider the applicant’s claims, or all integers of the claims, that he would face serious or significant harm in China due to his involvement in an underground church.
[1] On 1 July 2015 the Refugee Review Tribunal along with a number of other Commonwealth tribunals were amalgamated with the Administrative Appeals Tribunal (AAT). Any applications on foot with the former RRT at the date of amalgamation automatically became applications in the Migration and Refugee Division of the AAT.

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 1729817 (Refugee)

Details

AGLC: 1729817 (Refugee) [2020] AATA 1547
Case: [2020] AATA 1547
Decision Date: 20 February 2020

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a Chinese national. The applicant claimed he would face harm upon return to China due to his Roman Catholic faith and his distribution of Christian materials. The Federal Circuit Court had remitted the decision for reconsideration on two prior occasions, first for failing to consider claims related to involvement in an underground church, and second for failing to disclose a certificate issued under s 438 of the Act.

The primary legal issue before the court was whether the applicant met the criteria for a protection visa, or alternatively, was entitled to complementary protection. This required the court to determine the credibility of the applicant's claims regarding his religious activities in Australia and the potential risks he faced in China as a Roman Catholic. The court also had to consider what material could be taken into account on remittal, given the previous procedural errors.

The court reasoned that on remittal, the Administrative Appeals Tribunal (AAT) was obliged to continue the proceeding and determine the review based on the facts as they presented at the time of its determination, having regard to the existing record. The applicant had provided substantial evidence of his genuine commitment to the Roman Catholic Church in Australia, including baptism certificates, letters from church officials, and witness statements confirming his regular attendance and active participation in church activities since February 2012. The court accepted this evidence, finding it demonstrated a genuine commitment to the faith, which formed the basis of his protection claim. The court also considered country information regarding the status of Roman Catholics in China, including registered and unregistered churches.

The court affirmed the decision under review, finding that the applicant had established a genuine commitment to the Roman Catholic Church in Australia, which, when considered with the country information, supported his claim for protection.

Orders

Orders of the court

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Background

Background to the litigation

No further submissions were made on the validity of the certificate or the material. Background The applicant is [Age] years of age and was born in Fuzhou City, Fujian Province, China. He attended school in Fujian, China. When he attended Middle School he lived at school and only returned home on weekends and holidays. The applicant’s parents divorced when he was quite young and he followed his father. He claimed he had little to do with his mother after his parents divorced and his grandmother cared for him when his father was away on business. He claims he did not have a close relationship with either parent. His father organised for the applicant to obtain a student visa to study in Australia. He arrived in Australia [in] January 2008 as the holder of a student visa. He commenced but did not complete his high school studies. He stopped studying when he was about [age] years old. In February 2008 he met his former wife when they were both working in a [shop]. They formed a relationship in March 2008 and they married [in] February 2009. He claimed he gave up his studies so that he could look after his wife. His wife was studying [at] [a] College. She later found work in [her field]. His former wife’s family was from Fujian Province but they had since moved to Xinjiang Province in the west of China. The couple lived together in [two suburbs]. They moved to different addresses in [the second suburb] and the applicant worked in [a workplace] for about two to three years. The applicant believes that his former wife now has permanent residence. In November 2011 the applicant and his former wife separated. The applicant applied for another student visa in October 2012. He told the Tribunal he re-applied for a student visa because he wanted to study and only stopped studying because of the relationship breakdown. The Tribunal asked him to explain why he stopped studying when he married. He claimed that it was traditional in Fujian for the husband to take financial responsibility for the wife and family. He claimed he had to work to pay for his wife’s tuition fees. He claimed he would not have enough money to support his wife if he worked part time and studied. She also wanted him to work full time. His student dependent visa ceased in about December 2012/January 2013 at the time of his divorce. The Tribunal put it to him that giving up his studies may have been disappointing for his family who had paid his expenses for travel to Australia and for his education. He claimed he was willing to sacrifice a lot for his former wife. The Tribunal put it to him that, overall, his conduct might suggest he did not want to study but wanted a pathway for migration to Australia. Once his student application was refused he had a pattern of applying for visas to stay in Australia. He disagreed and claimed that he had intended to study.Country of reference The applicant claims he was born in Fujian Province, China and is a citizen of China. He provided a copy of his Chinese passport which was issued [in] 2007. He has consistently claimed that he is of Chinese nationality, he spoke Mandarin fluently and appeared to be familiar with the geography and culture of Fujian Province.

Evidence

Evidence Before The Court

The applicant claims if he returns to China he will be arrested and suffer serious and significant harm for reasons of his Catholic religion and because he provided Christian materials to his friends in 2012.Assessment of claims and evidenceDid the applicant attend a Catholic Church and become a member of the congregation in Australia? The applicant stated, and the Tribunal accepts, that he and his former wife married in February 2009 after first meeting when they worked in a retail shop in Sydney early in 2008. They separated in November 2011. In his application for protection he stated that after his divorce he became depressed and in about February 2012 he got to know a faithful Roman Catholic and started attending [Church 2] and a Catholic Church in [Suburb 2]. After a visit to China in June 2012 the applicant returned to Australia and regularly attended [Church 2] and the church in [Suburb 2]. The applicant provided a number of letters and other documents with his application which relate to his attendance at church as a member of the Roman Catholic congregation. The letters and documents all confirm that he has been attending church, Eucharist celebrations and Bible sharing groups since February 2012. He provided a copy of a baptism certificate and other evidence showing he had been baptised [in] December 2013 and the Tribunal accepts this evidence. The photographs appear to be consistent with this evidence. The information given by the applicant to the delegate regarding his attendance at church was consistent with the claims made in the application for protection and he appeared to be conversant with the beliefs and practices of the Catholic Church. At Tribunal 1’s first hearing the applicant claimed he became a Catholic in February 2012. At Tribunal 2’s second hearing [Father E] gave evidence that the applicant had been attending church since February 2012 and [Father E] observed he was a member of the [Church organisation 3] and appeared to be a genuine Catholic. When asked how he knew the applicant had been coming to church since February 2012 he stated that the applicant had told him he started attending in February 2012 but agreed he had no personal recollection of the date when the applicant first attended. He stated that as well as attending Mass, he was aware that the applicant attended Bible study classes about five to six times during the year. A friend of the applicant’s gave evidence at the second hearing that she came to know the applicant through a mutual friend when the applicant first attended a church in [Suburb 2] in February 2012. She stated he attended two church groups and actively participated in many events. She saw him every week and considered he was a committed member of the Catholic community. The applicant gave evidence relating to his knowledge of Catholic doctrine and practice which appeared to be consistent with a person who had joined the church in or about 2012. The applicant gave evidence that he attended the Catholic Church in [Suburb 2] and in [Suburb 1] each week. He also attended Bible reading sessions in [Suburb 2] and [Suburb 1]. He claimed that he handed out pamphlets outside the church from time to time.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

After the remittal of Tribunal 2’s decision, the applicant provided further documents to the Tribunal. These included: ·Several photographs showing the applicant and others engaged in various activities.·Statutory declaration made by [Mr F] on 16 April 2019.·Statutory declaration made by [Ms D] on 15 April 2019.·Letter from [the] chairman of the [Church organisation 2] dated [April] 2019.·Certificate of baptism and confirmation of [Mr F] (who had been introduced to the Catholic Church by the applicant).·Certificate of baptism and confirmation of [named person] with the applicant named as baptism sponsor.·Letter from President of the [Church organisation 3] dated [April] 2019.·Several media articles relating to the closure of underground Catholic churches in Fujian Province.CONSIDERATION The issue in this case is whether the applicant meets the refugee criterion and, if not, whether he is entitled to complimentary protection. The relevant law is set out in Attachment A. This matter has been remitted on two occasions. It was first remitted on the basis that Tribunal 1 failed to consider the applicant’s claims, or integers of the applicant’s claims, that he faced harm due to his involvement in an underground church. The matter was remitted on a second occasion on the basis that the Tribunal failed to disclose the existence of a certificate issued pursuant to s.438 of the Act.What information can be considered on remittal? Where a direction is given to reconstitute the Tribunal, the AAT Act requires the reconstituted Tribunal to continue the proceeding.[3] In completing a reconstituted review, the Tribunal may have regard to any record of the proceeding as previously constituted.[4] This includes any record of evidence taken in the proceeding. The Tribunal must determine the review by dealing with the issues as they present themselves at the time of its determination and according to the facts as the Tribunal finds them to be at that time. [3] s.19D(4) of the AAT Act, inserted by the Tribunals Amalgamation Act 2015 (No.60 of 2015). [4] s.19D(4) of the AAT Act, inserted by the Tribunals Amalgamation Act 2015 (No.60 of 2015). See also SZEPZ v MIMIA (2006) 159 FCR 291 at [39] and MIAC v SZGUR (2011) 241 CLR 594 at [50]. In SZEPZ v MIMA, a Full Court of the Federal Court found that, where a Refugee Review Tribunal decision has been set aside by a court and the matter remitted for reconsideration owing to a jurisdictional error, it does not follow that all the steps and procedures taken in arriving at that invalid decision are themselves invalid.[5] The Tribunal still has before it the material that was obtained when the decision that had been set aside was made and is obliged to continue and complete the particular review and not to commence a new review.[6] [5]SZEPZ v MIMA (2006) 159 FCR 291 at [39]. [6] MZXRE v MIAC (2009) 176 FCR 552 at [5], where North and Rares JJ commented that it would be wrong to suggest that following a remittal whatever had been done by the original Tribunal had to be redone. See also SZNKRv MIAC [2010] FMCA 182 (Raphael FM, 19 March 2010) at [9].