1729981 (Refugee)

[2023] AATA 4532

1729981 (Refugee) [2023] AATA 4532 (25 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1729981

COUNTRY OF REFERENCE:                   China

MEMBER:Mr S Norman

DATE:25 October 2023

PLACE OF DECISION:  Sydney

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

Statement made on 25 October 2023 at 10:10am

CATCHWORDS
REFUGEE – protection visa – China – no response to s.424(2) letter – religion – Christian – Local Church – insufficient details provided – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 424, 426A
Migration Regulations 1994 (Cth), Schedule 2

CASES
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (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 dependant.

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 3 November 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 22 December 2016. The Department delegate’s decision was 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. By Pre-hearing information form attached to an email of 3 May 2023, the applicant had advised the Tribunal he did not wish to attend a hearing.

6. None-the-less, by hearing invitation letter dated 8 June 2021 (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 on 29 November 2023.

7. The Tribunal had also issued a s.424(2) letter dated 9 October 2023. The applicant did not respond to this letter within time (by 23 October 2023) or at all. Neither did the applicant attend the Department interview scheduled for 1 November 2017.

8. In the circumstances, and pursuant to s.426A of the Act, the Tribunal will make its decision on the review without taking any further action to enable the applicant to appear before it.

   The applicant’s claims:

9. In support of his Protection visa (PV) application, the applicant stated:[1]

   [1] PDF – from p.25.

   ·     He is a Christian from Fujian Province China and he attended a Local Church in his home region and was baptised five years ago

   ·     The applicant said he has a deep attachment to his church, because he could hear the gospel there. Every time he attended a gathering, he was deeply moved spiritually

   ·     He knew that he was a sinner and had to repent of his own sins, and he also knew that those who refused to repent would be finally punished by God

   ·     There were a group of people around him who believed in Buddhism and worshipped their gods instead of converting to Lord Jesus. They were so superstitious that they would pray to Bodhisattva for wealth, promotion and safety. With Bodhisattva’s blessing, they would have an easy conscience and a sense of safety even though they had committed appalling atrocities

   ·     However, Christ taught that the only way to get the fruits of the Holy Spirit was to covert to Lord Jesus

   ·     The applicant’s biggest witness since his conversion to God was his conversion to Lord Jesus, because he not only changed himself but this also made him able to repent his sins. Those who refused to believe in God would sooner or later be tempted to commit heinous crimes, be judged by God and be blotted out of his book of life

   ·     The applicant’s parents and siblings were all believers in God, so they were treated unjustly in China

   ·     In the 1990s, the local government was tightening up its crackdown against the Local Church, and people in their house churches were being arrested and investigated. He and his parents had all been arrested. Before getting married, he was penalized for attending an underground Church.

   ·     The government had attached a humiliating label, “the shouters” on his house church because when they read the bible or congregation prayers, they often shouted the name of their Lord Jesus loudly. This special way of holding a gathering or reading prayers had distinguished them from any other church. Their bibles were also different from those used in other churches. They used Recovery Bibles and listened to sermons given by Brother Witness Lee

   ·     However, the propaganda from the government and security police often misled many people into thinking that their church was an evil cult and abetted some others in alienating them and labelling them ‘insane freaks’

   ·     In 2016, the applicant’s mother died. When they were holding a prayer vigil for her, the government officials approached them and stated that they were engaging in cultist activity and insisted on them dismissing their congregation. When they ‘refused this assumption’, they sent a riot squad to their house. The applicant stood up to protect their church property only to be injured in the heated confrontation

   ·     During this period, the applicant already had his passport ready and in May 2016 villagers suggested he go to Japan as a contracted labourer. This plan somehow failed in the end. Sometime after, the applicant was injured in the confrontation. The local government and security police were still questioning those who had stood up for the church property. The applicant had to find shelter from a relative

   ·     Later, another villager who had been to Australia told him that Australia was a country of freedom and democracy, and that there were a lot of churches there. This person also stated there were a lot of Chinese in Australia living quite decently and that they also had their own Chinese priests 

   ·     This interested the applicant greatly, he decided to travel to Australia and have a look for himself. He would also feel happier if he could find a church for himself in Australia. To ensure he could leave the country smoothly, he spent a sum of money entrusting a friend to handle his emigration affairs. He did this successfully, however he is unsure of the detailed procedures of how his friend achieved this

   ·     When he arrived in Australia, he found a Local Church, which had been his long-time expectation. In the church he felt at ease and happy, so his family members encouraged him to stay with it

   ·     Meanwhile the security police in his home-town were still enquiring into his whereabouts and trying to coerce him to return to China

   Assessing the applicant’s claims:

10. The Tribunal has seen a photocopy of the applicant’s passport on the Department file (expiry date XXX 2026) and I accept he 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 genuine Christian (and or that any family member was a genuine Christian), nor that he (or they) was imputed with same either due to his activities in China or Australia, nor that the applicant (or his family) had or will suffer any harm for this reason in China.

11. 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.

12. 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.

13. 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:

14. 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).

15. 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

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

    Mr S Norman
    Member