1732791 (Refugee)

1732791 (Refugee) [2020] AATA 2237 (15 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1732791
COUNTRY OF REFERENCE:                   China
MEMBER:David McCulloch
DATE:15 June 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 June 2020 at 9:19am

CATCHWORDS
REFUGEE – protection visa – China – religion – Christianity – house church – harassment by district administration and police – practising Muslim in Australia – credibility concerns – significant differences between written claims and oral evidence – no supporting evidence of practice as Muslim – decision under review affirmed

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

CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu v Renevier (1989) 91 ALR 39
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 30 November 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 the People’s Republic of China, applied for the visa on 10 August 2017.
The Tribunal exercised its discretion to hold the hearing by telephone which was held on

3 June 2020. 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.
The Tribunal is very conscious that where nuanced credibility issues are an issue that significant caution would need to be had in conducting a hearing by telephone. As it is, the credibility concerns identified in this matter are overwhelming and readily apparent from the significantly contradictory nature of the evidence given over time and lack of probative evidence as to claimed religious activities in Australia. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
At the hearing, the applicant indicated that the hearing be adjourned so that it could be rescheduled to allow his lawyer to attend. The Tribunal noted to the applicant that he did not have a registered migration agent/lawyer, indicating Tribunal systems as representing him. In response, the applicant said ‘ok’ and agreed to proceed with the hearing.
The Tribunal was assisted through the use of an interpreter in the Mandarin and English languages.
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. The Tribunal has before it the DFAT Country Information Report – People’s Republic of China, 3 October 2019.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant arrived in Australia [in] June 2017 as the holder of an FA 600 visitor visa. The applicant applied for a protection visa on 10 August 2017.
The following information is apparent from the application forms. The applicant was born on [date] in [County 1], Henan Province, China. The applicant is a Christian of Han ethnicity who speaks, reads and writes Mandarin. The applicant married on [date]. The applicant’s mother, father, brother, sister, wife and daughter all reside in China, and the applicant is in daily contact with them via phone and WeChat. The applicant lived in [location], [County 1], Henan Province from birth until June 2017. The applicant attended primary and secondary school from 1989, graduating from [High School 1] in 2001. The applicant then studied [Subject] at [University 1], in Jinan, Shandong Province from 2001 until 2005. The applicant worked as a [Occupation 1] for [Employer 1] from January 2007 until June 2017.
The applicant claims that he became a Christian in June 2014. Since there are no churches in [County 1], the applicant and his friends gathered at each other’s homes every weekend and formed a family church. In 2015, the ‘indigenisation of Christianity in China’ became widespread and was heavily promoted. In September 2016, the applicant received an order from the district administration for religious affairs telling him to halt all gatherings. Later that month, the church was sealed up by the local police, and the applicant and more than

10 other church leaders were arrested. The police also confiscated computers, speakers, and books, and detained the applicant and his friends for many days.
Afterwards, the applicant filed a lawsuit against the administration but this was rejected by a court in November 2016. The applicant’s church continued to pray at a new location, when they were dispersed by police officers in December 2016, who also tore down the cross. The applicant did not relocate as he did not want to leave his parents behind, and claims that everywhere in China is the same. The applicant fears that he will be arrested and detained again and faces harsh treatment if he returns to China.
Hearing, credibility, findings, and assessment
The mere fact that a person claims fear of persecution 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 claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
In considering overall the credibility of the applicant, the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for … [but this should not lead to] … an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of China and accordingly his claims will be assessed against China.
The Tribunal has very significant credibility concerns with claims by the applicant given the very significant discrepancies between information provided in the protection visa application form and evidence provided at the hearing. Credibility issues are reinforced by the applicant not providing any probative evidence of being a practising Muslim in Australia, as claimed in the hearing.
In the hearing, the applicant indicated that he was born and grew up and was educated in Henan Province but moved to Shandong Province in around 2004 when he finished [school level]. The applicant indicated that he remained living in Shandong until he came to Australia in 2017. The applicant indicated that he had no more education after he finished [school level]. The applicant indicated that he worked variously with different companies, including in [Industry 1] and being involved in [Industry 2]. The applicant indicated that he married in 2009 and has two [children].
The applicant indicated that as being of Han ethnicity, he would be considered a Buddhist, but that he was not a practitioner. The applicant indicated that at the time of coming to Australia he had no set religion, although he claimed that while in China he had an interest in progressing with the Islamic faith.
The applicant indicated that he had suffered no harm or significant difficulties in China.
When asked why he is seeking protection from China, the applicant indicated that it is because he is now a Muslim. The applicant indicated that he began practising as a Muslim in around New Year 2018. The applicant indicated that he practised his religion in [Suburb 1] but could not remember the name of the place of worship. The applicant indicated that he would attend approximately every two weeks but has not attended recently because of the COVID-19 pandemic.
The Tribunal asked the applicant if he had evidence of being a practising Muslim, such as from fellow worshippers or religious leaders. The applicant indicated that he may be able to obtain such information. The Tribunal gave the applicant a period following the hearing to provide such evidence, noting to the applicant that the Tribunal would particularly be interested in a testimonial by one of the religious leaders of his place of worship as to his Muslim faith and attendance.
No response was provided in the timeframe requested, or thereafter.
In the hearing, the Tribunal put to the applicant the significant variations between his written claims for the protection visa and what he had indicated in the hearing as significantly undermining his credibility. The Tribunal noted significant differences in terms of where the applicant had lived over time and his education history. More significantly, the Tribunal noted initial written claims of harm in China based on being a Christian not corroborated in the Tribunal hearing. In the hearing, the applicant said he was not a practitioner of any religion in China and had suffered difficulties in China.
In response, the applicant said that an agent had lodged the initial application and the applicant had not made claims to the agent which are contained in the written application. The applicant indicated that he had indicated when the application was being put together the claims that he is making today. The Tribunal noted that the applicant had indicated in the protection visa application that he did not have assistance in filling in the form and that he had endorsed its contents by reason of its submittal. The applicant maintained that the claims in the protection visa application form are not accurate.
The Tribunal is not persuaded that the applicant would not have been aware of the contents of the protection visa application which was submitted by him and claimed prepared in circumstances where he claimed he did not have assistance with the application.
There are overwhelming differences between claims made in the initial application and those made in the hearing. There are differences in education, with the applicant indicating in the hearing that he did not progress beyond high school but the written claims indicating that he attended university. There are differences in the composition of the applicant’s family, with the protection visa indicating that the applicant had a daughter but in the hearing indicating that he had a daughter and a son. There are differences in employment over time. More significantly, there are differences in core claims for protection, with the applicant indicating in the hearing that he was not practising a religion in China and suffered no difficulties in China but with his initial written claims indicating that he was a Christian in China and suffered difficulties from authorities because of this. The applicant made no claim in the initial application, as claimed in the hearing, that he in fact had an interest in practising as a Muslim in China. Nor do his written claims state at the time of his initial entry into Australia that he had an interest in progressing into the Muslim faith.
The Tribunal considers that the very significant discrepancies between what the applicant claimed in the protection visa application and what he claimed in the Tribunal hearing are very significantly undermining of the credibility of claims both made in the original protection visa application and in the Tribunal hearing. The discrepancies make it difficult for the Tribunal to be satisfied as to anything that the applicant says. The credibility of claims of being a practising Muslim is confirmed by the paucity of independent evidence provided by third parties as to the applicant being a practising Muslim in Australia. For instance, the Tribunal would not accept that the applicant would not know the name of the mosque or other place of worship that the applicant had attended since the beginning of 2018 if he had been a regular participant once a fortnight or so. In addition, the applicant failed to provide following the Tribunal hearing testimonials from participants or religious leaders as to him being a practitioner of the Muslim faith.
The Tribunal is not satisfied as to any of the substantive claims made by the applicant over time. The Tribunal is not satisfied that the applicant has been or is a practising Muslim and that he would face a real chance of serious or significant harm on return to China on that basis. For the avoidance of doubt, the Tribunal is not satisfied that the applicant has been or is a practising Christian who suffered any difficulties in China as a result of the practice of this religion or is of any adverse interest to authorities as a result.
Given these findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm in China for any of the reasons claimed.
In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a refugee criterion reason in s.5J(1). The Tribunal is not satisfied that there are substantial grounds for believing that, as necessary and foreseeable consequence of being removed from Australia to China, there is a real risk of him suffering significant harm.
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.
David McCulloch
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 2237

15 June 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness