1731109 (Refugee)

1731109 (Refugee) [2020] AATA 2627 (19 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1731109
COUNTRY OF REFERENCE:                   China
MEMBER:Rodger Shanahan
DATE:19 June 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 June 2020 at 3:50pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Christianity – dispute with local government about compensation for acquisition of house for development – fear of harm from family and neighbours – credibility – inconsistent evidence – lack of knowledge about or connection to religion – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5J, 36, 65
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 dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 1 December 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of China, applied for the visa on 30 July 2017.
CRITERIA FOR A PROTECTION VISA
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.
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.
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).
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, there is a real chance they would be persecuted for one or more of those 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.
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
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.
CLAIMS AND EVIDENCE
Protection Visa Application:
The applicant’s claim for protection was as follows:
I was persecuted by Chinese government because I Made petition to reveal the officials' corruption. I have an old house in my hometown and the local government noticed us that our house would be demolished. However, our compensation only have half price of the market price, so I and other residents disagree to sign the demolition agreement. One day the demolition team came to my home to Remove house. They forced us to sign the demolition agreement and threaten us. They smashed all goods of home, i was beaten by them because prevent their behaviour. After that, i called the police, But the police ignore our case. I heard that our compensation was corrupted by them. So i and other residents wrote complaint letter to submitted to city government, to hope that get a reasonable explanation and compensation. However, after the officials knew my behaviour, they sent police to catch us. I was so scared, escape China and fled to Australia. Please protect me.
AAT Hearing
A number of attempts were made to contact the applicant via phone at the time she advised and she only answered on the third (last) attempt. She advised the Tribunal staff that she had been told her visa was okay. At the start of the hearing the member advised the applicant the Tribunal had been told the applicant claimed that her lawyer told her that her visa was sorted out. She confirmed this and was asked who her lawyer was and when she was told this.
She claimed that last week her lawyer told the current application for her visa was all okay and was in progress. She said she only had an email address and hadn’t spoken to her – she was asked how she knew the person was a lawyer. She said she used to have a lawyer but he no longer represented her and put her onto another person for whom she only had a WeChat address.
It was put to her that the contact details for the applicant were hers and not for any lawyer/agent. She claimed that she had not received any letter, she only heard about the hearing from her lawyer. She confirmed she had a medicare card and it was put to her that it was strange she had received her card but not any details about her hearing.
She was asked if she was aware of what was in her protection visa application and agreed with it, and she claimed she had no idea. Asked if she had signed the application, she claimed that she had. It was put to her that she had signed the form and was asked if she knew what was in it, she claimed she wasn’t sure what was in the content. Asked if she had it read back to her or asked for it, she repeated she didn’t know what was in it. She claimed her lawyer wrote it all. It was put to her that she must have told the lawyer what her claim was, and she said that she had a religion and the application was due to her religion.
Asked what serious harm she feared if she returned to China, she claimed that her family members and neighbours thought her religion wasn’t right and she feared they may swear at her but wouldn’t harm her. Asked if they would do anything more serious, she claimed that it was only swearing and they looked down at her and wouldn’t contact her.
She claimed she was Christian and when asked what form of Christianity she followed, she simply said ‘Jesus’. She then said it was hard as she had a group of people and they all followed God. Asked if she went to church in Sydney she said if she had time she did. Asked what the name of the church was, she claimed that it was in [Suburb 1]. She was advised that churches had names and was asked what the name of the church was, she said she occasionally went there as her [sibling] took her but she had no idea of the name.
She was asked what happened during Easter in the Christian faith, she said she had no idea as she only followed the bible and did bible study. It was put to her that if she was Christian she would know what occurred at Easter, and she said she was only entry level Christian and didn’t know much. It was put to her that she had been in Australia for three years and had had a lot of opportunity to learn her faith, and she said she had a job so only went there a few times but in China she had a group of people that she followed. Asked the names of Jesus’ mother and father, she said she had no idea as she only had the bible.
It was put to her that her protection visa application made no mention of religion and only referred to government corruption following the demolishing of her house. She claimed she had two reasons and this was the other one. Asked why she hadn’t mentioned this claim she said that her religion made her feel isolated but her lawyer helped her make the claim.
She said she had told her lawyer two claims but had no idea what claim had been written down. Asked about her other claim, she said she had told her lawyer both reasons and she had no idea what reason her lawyer put down. She said that her other reason was due to her poverty. The government demolished houses but only offered little compensation. Asked what happened to her, she claimed she wasn’t treated fairly and because of her religion she wasn’t treated fairly and she was isolated. When she got her compensation she came to Australia.
She claimed that she got a small compensation and she wasn’t happy but nobody could stop them. Asked when the house was demolished, she claimed that it was in 2016; asked the month, she claimed she couldn’t remember. She has a husband and [child] who live with her mother-in-law. Asked why she couldn’t also live with her mother-in-law, she claimed that they didn’t have a house and she would have to pay rent if they rented a house. Her [child] was [age] years old – he was born [date].
Her husband didn’t work and they divided the money in half and she used hers to come to Australia. Asked again why she couldn’t live with her in-laws, she said they didn’t like her religion and so she couldn’t live with them. The government offered her only half its value and out of this she also had to pay some money to her parents. She didn’t complain to the police as they are controlled by the government and nothing will happen. Nothing else happened to her other than being offered half the value.
Asked if she was afraid of the police or anyone else in government, she claimed that she was because they are police. They tried to prevent their house being demolished but the police shouted at them and used metal sticks. Asked if the police have targeted her husband in her absence, she claimed that he hadn’t because they lived far away and it meant the police wouldn’t interfere. She was asked why she couldn’t live with her husband given this was sufficient to stop the police. She claimed she couldn’t live with her husband because of her religion and the fact they shared the money.
It was put to her that she had money from the compensation and had been working here for three years and could work in China. They could rent accommodation in China but she claimed that nobody rented and people only bought and houses were too expensive to buy for anyone. It was put to her that it didn’t make sense that houses were too expensive for people to buy but there were no houses for rent. She claimed that most people had their properties and she didn’t make much money in Australia and she couldn’t afford to buy in China. It was put to her that it was not a human right to own a house and she could rent a house in China.
She said she had a religion and didn’t get along with her family because of this so couldn’t live with them. And if she rented a house she didn’t own it. She was advised that simply not owning a house was not a reason for protection in Australia. She claimed she couldn’t rent a house because hardly anyone rented a house in China. She said she was allowed to rent a house but for Chinese people they only bought houses they didn’t rent them.
Asked of she had ever been physically assaulted in China, she said she hadn’t been. It was put to her that her claim said she had been beaten by the demolition team. She claimed that her house was a big mess when they demolished and they used an electricity stick. She said that the government used some security guards who had sticks they used to beat them. It was put to her that she had claimed that she hadn’t been beaten, then when it was put to her that her written claim said she had, she then said she had been beaten. It was put to her that the Tribunal was concerned that she changed her story to accommodate inconsistencies put to her and the she may not be being truthful. She said that if the Tribunal didn’t trust her there wasn’t anything she could provide to convince it.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on a tourist visa [in] July 2017, and applied for protection on 30 July 2017. I have sighted a copy of her passport and accept that China is the applicant’s country of nationality.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.
Although she claimed to have been advised by her lawyer that her visa had been sorted out, no evidence of correspondence with her lawyer was provided to support this claim. I do not accept that the applicant was unaware that her claim was still being progressed or that she was due for a telephone hearing. She had provided a change of address form in early 2019 and the contact details were those to which the hearing invitation were sent and the telephone number she gave was the one used by the Tribunal to contact her. She had previously in 2019 requested a letter from the Tribunal in support of a Medicare card using the same contact details and she received this. I am satisfied that the applicant was appropriately informed about the hearing.
The applicant is a [age] year-old, married woman. She claimed that she feared being ostracised because of her religion and harmed because she had been given inadequate compensation when her house was compulsorily demolished.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and that she fabricated her claims in order to be granted a protection visa.
Christianity
I do not accept that the applicant is or ever has been Christian. She never mentioned this in her protection visa, she was unable to answer the simplest questions about the faith such as what occurs at Easter or who Jesus’ mother and father were. She claimed to occasionally attend a church in [Suburb 1] but did not know its name.
Given she claimed to have attended bible study in China and, having lived in a Christian-majority country where there is freedom of religion for three years, I find her lack of knowledge or connectivity to the faith, along with its absence from her original claim to be sufficient to show this claim to have been fabricated. I do not accept that the lawyer helped her make the claim or left it off her claim as she had signed the claim and her lack of knowledge of the faith is such that she appears to have had no contact with its most basic of precepts. Nor do I accept that she was helped to make the claim by her lawyer. This relies entirely on her oral testimony and also does nothing to explain why the applicant would put forward a claim she knew was not true simply because a lawyer wrote it. Because of her lack of even the most basic understanding of the faith I do not accept that she has undertaken bible study or that she has attended church at [Suburb 1] with her [sibling].
Demolition of House
I do not accept that her house was demolished and she was given insufficient compensation. To begin with it relies entirely on her oral testimony which I have found lacks credibility with respect to her religion claim. She was also inconsistent regarding her description of what happened to her at the demolition. In her written claim she stated that she was beaten by the people undertaking the demolition, while in the hearing she claimed that nothing happened to her. She then attempted to say that she actually was assaulted once the inconsistency had been pointed out to her. Her willingness to alter her story does nothing to give the Tribunal any confidence in her truthfulness.
Because I do not accept that her house was ever demolished it follows that no agreements were signed or asked to be signed, no petitions were written, no police were sent to catch them or any other adverse action taken by the Chinese government or any of their supporters against the applicant. Nor do I accept that she would be unable to buy another house because they were too expensive and they received inadequate compensation, given I do not accept their original house was ever demolished in the first place.
Having considered the applicant’s evidence both individually and cumulatively, for the reasons set out above the Tribunal finds that the applicant does not have a well-founded fear of persecution for any 5J(1) reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the applicant is or ever was Christian or that she had her house demolished without sufficient compensation being paid, I am not satisfied that there are any substantial grounds for believing that there is a real risk of significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
Therefore, I do not accept 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 she will suffer significant harm.
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that 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 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).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rodger Shanahan
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.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
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 the 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.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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.
…

[2020] AATA 2627

19 June 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction