1801301 (Refugee) - [2019] AATA 5770

1801301 (Refugee) [2019] AATA 5770 (30 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1801301
COUNTRY OF REFERENCE:                   China
MEMBER:Louise Nicholls
DATE:30 April 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 30 April 2019 at 3:31pm

CATCHWORDS
REFUGEE – protection visa – China – Federal Circuit Court Remittal – past Christian activities – member of founding house church congregation – detention and mistreatment by police – adverse attention by authorities – fear of discrimination – member of a particular social group – delays in protection application – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 19A(1)
Migration Act 1958 (Cth), ss 5, 36, 65, 91, 438, 499
Migration Regulation 1994 (Cth), Schedule 2, r 1.12
CASES
MIAC v SZGUR (2011) 241 CLR 594
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 dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicants are a married couple and both claim they were born in the People’s Republic of China (China). The applicant wife arrived in Australia as the holder of a student visa [in] August 2007. The applicant husband arrived in Australia as the holder of a student visa [in] April 2008. The applicants were born in different regions of Fujian Province, China and were unknown to each other until they met in Sydney.
The applicant wife applied for a protection visa on 12 June 2014. The applicant husband was included in her application as a member of her family unit on 26 September 2014.
On 2 July 2015 a delegate of the Minister for Immigration and Border Protection refused to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act) on the basis that they did not meet the requirements for that visa. The applicants have sought review from the Tribunal.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Procedural history
The applicants initially sought review of the delegate’s decision at the Tribunal on 14 July 2015. The Tribunal, differently constituted, affirmed the delegate’s decision on 24 October 2016.
[In] November 2017 the Federal Circuit Court quashed the Tribunal’s decision and remitted the application for review to the Tribunal for determination according to law. The court found that the Tribunal had failed to consider, in its complementary protection assessment, the conduct of the applicants in Australia.
The matter is now before the Tribunal pursuant to s.19A(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act).
The applicants attended a hearing before the Tribunal, differently constituted on 11 October 2016. The Tribunal has listened to a recording…

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 1801301 (Refugee)

Details

AGLC: 1801301 (Refugee) [2019] AATA 5770
Case: [2019] AATA 5770
Decision Date: 30 April 2019

CaseChat Overview and Summary

This matter concerned an application for a protection visa by two applicants from China. The dispute centred on the applicants' claims of past persecution and fear of future harm due to the wife's involvement in a house church congregation, her sending of Christian materials to China, and her identity as a Christian. The Federal Circuit Court had previously remitted the matter to the Tribunal for reconsideration.

The primary legal issues before the Tribunal were whether either applicant met the criteria for a protection visa, and if not, whether they were entitled to complementary protection. This required the Tribunal to assess the credibility of the applicants' evidence regarding their past experiences of detention and mistreatment by authorities in China, and their fear of discrimination and harm upon return. The Tribunal also had to consider the legal principles governing reviews on remittal, specifically what evidence could be considered and how the review should proceed.

The Tribunal's reasoning involved a detailed consideration of the evidence presented, including the oral testimony of the applicants and material previously submitted. It noted inconsistencies in the wife's evidence regarding her siblings but accepted this might be due to how she counted family members. The Tribunal applied the principles of administrative review on remittal, acknowledging its obligation to continue the proceeding and determine the review based on the facts as found at the time of its determination, having regard to all previously obtained records and evidence. The Tribunal ultimately affirmed the previous decision, indicating that the applicants did not meet the criteria for a protection visa.

Orders

Orders of the court

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Background

Background to the litigation

In conducting the review the Tribunal has considered the material provided to the Tribunal and the oral evidence given at the previous hearing held by the Tribunal, differently constituted. Background The applicant wife was born in [Village 1], Fuqing City District in Fujian Province. She is now [age] years of age. She gave evidence at the second Tribunal hearing that her parents are alive and her mother, two sisters and one brother live in the family home in her home village. Her paternal grandparents also live in [Village 1]. Her two sisters are married and her brother is engaged. The family all live in one house and the applicant stated that her sisters are working and contribute to the financial support for the household. The applicant gave evidence at the first Tribunal hearing that she had three sisters and one brother. The children had all attended “boarding school” and her parents had paid the social compensation fees for all the children. Her sisters are [working]. Her brother was not working or studying. The Tribunal notes the inconsistent evidence regarding the number of the applicant’s siblings but accepts that this may have arisen because in the first hearing the applicant she may have included herself in the number of siblings. She claims that her father is living in Yunnan Province and does not live with the family. She stated that he is doing odd jobs to support himself. The Tribunal put to her that it is quite common for family members to move or travel to other provinces for the purposes of work. She stated that he left Fujian Province to avoid persecution, not to obtain work in another province. At the first Tribunal hearing the applicant wife told the Tribunal that her father was living in the same village as the rest of the family. The applicant wife’s father is a [Occupation 1] and her mother is a homemaker. Her father lives by himself in a different place and her sisters and brother live with her mother. The applicant wife attended school in her home village and completed half of senior high school before she came to Australia on a student visa. She arrived in Australia in 2007 as a student visa holder and attended an English language college for about six months. She claimed the college suddenly closed down and she was not able to continue her English language studies. She told the Tribunal that after attending the course her English skills improved considerably. She claimed that she did not know what to do when the college closed. She consulted an agent who advised her she could transfer to another course but she did not have the money to support further studies so she decided to stay in Australia and support herself through finding work. She found work [in a certain area], and later found work in [another area]. She met the applicant husband in 2014 and they married [in] January 2015. The applicants have one [child], The applicant wife gave evidence that her student visa ceased in 2010 and that she applied for a protection visa in June 2014. She did not hold a visa between March 2010 and June 2014.Country of reference

Evidence

Evidence Before The Court

The applicant wife claims that she fears serious harm if she returns to China for reasons of her past Christian activities, for sending Christian materials to China and because she is a Christian and if she returns she will continue to practise her Christian faith. The applicant husband claimed that he and his family were Christians in China and that he has been attending the [Church 1] together with his wife. He fears serious harm if he returns to China because he is a Christian.Assessment of claims and evidenceDid the applicant wife’s parents conduct a house church in China and have they been mistreated? The applicant wife claims that her family established a house church in [Village 1], Fujian. She claimed that when she was in middle school the police raided the family home and detained her parents and the applicant for a short period. She was expelled from school, her father was arrested and she was forced to abandon her studies. She claimed that she sent Christian materials to her parents in 2014 and as a result their home was raided and her mother was detained. In the applicant wife’s statement she stated that she grew up in the countryside and all her family members were Christians. She began to attend the house church from an early age. Her parents were founding members of the church and besides holding congregations their home became a gathering place and her parents often went out to preach the gospel. In 2004 and 2005 her parents organised a campaign to raise funds for a new church and the foundations of that church were already finished before it was demolished by government backed security guards. The local government labelled their church as a cult and became hostile towards them. When the applicant wife was in the first year of middle school many people came to the applicant’s home to attend an Easter gathering but village officials arrived and ordered the family to stop the gathering. They kept a record of the names of all the people attending. Later the police found her parents and summoned her for enquiries. Government officials announced their house church was illegal and they should attend the Patriotic Church. From that time on they held their gatherings in secret. When the applicant wife was in the third year of middle school the church invited some foreign priests to give sermons at the church. More people came to listen to the sermons and one day there was more than 30 people attending to hear the sermon. When the priest finished his sermon on that day he began to baptise a number of members but before he had time to baptise them he packed his luggage and left in a hurry. Someone had given the alarm that security guards were arriving on the scene. Those who were not able to leave were locked in a room in the local government township and police came to interrogate them. The applicant wife’s parents were detained for two days and the applicant was detained for one day. From then on her parents never allowed her to attend any church congregations, and her school was cautioned by the police that she must be expelled.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The applicants attended a hearing with the Tribunal on 11 April 2019 and both gave oral evidence.CONSIDERATION The issue in this case is whether either of the applicants meets the refugee criterion and, if not, whether either is entitled to complementary protection. The relevant law is set out in Attachment A.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.[1] In completing a reconstituted review, the Tribunal may have regard to any record of the proceeding as previously constituted.[2] 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. [1] s.19D(4) of the AAT Act, inserted by the Tribunals Amalgamation Act 2015 (No.60 of 2015). [2] 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 (2006) 159 FCR 291, a Full Court of the Federal Court found that, where an RRT 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. 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.[3] [3] MZXRE v MIAC (2009) 176 FCR 552 at [5] North and Rares JJ. In conducting the review the Tribunal has considered the material provided to the Tribunal and the oral evidence given at the previous hearing held by the Tribunal, differently constituted. Background The applicant wife was born in [Village 1], Fuqing City District in Fujian Province. She is now [age] years of age. She gave evidence at the second Tribunal hearing that her parents are alive and her mother, two sisters and one brother live in the family home in her home village. Her paternal grandparents also live in [Village 1]. Her two sisters are married and her brother is engaged. The family all live in one house and the applicant stated that her sisters are working and contribute to the financial support for the household. The applicant gave evidence at the first Tribunal hearing that she had three sisters and one brother. The children had all attended “boarding school” and her parents had paid the social compensation fees for all the children. Her sisters are [working]. Her brother was not working or studying. The Tribunal notes the inconsistent evidence regarding the number of the applicant’s siblings but accepts that this may have arisen because in the first hearing the applicant she may have included herself in the number of siblings.