1805051 (Refugee)

1805051 (Refugee) [2021] AATA 3974 (16 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1805051

COUNTRY OF REFERENCE: China
MEMBER:Peter Haag
DATE:16 September 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 September 2021 at 4:08pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Falun Gong – fear of arrest – fear of torture – extortion – no Falun Gong practice in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) 201 FCR 505
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 Home Affairs on 7 February 2018 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 22 August 2017. The delegate refused to grant the visa on the basis that they were not satisfied the applicant is a refugee, or that there exists a real risk of the applicant suffering significant harm upon his return to China.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The following issues arise for determination by the Tribunal in relation to the present review application:
(a) whether the applicant meets the refugee criterion; and
(b) whether the applicant alternatively meets the complementary protection criterion.
For the following reasons, the Tribunal has concluded that the decision to refuse the applicant a protection visa should be affirmed.
The applicant claims, and the Tribunal accepts, that he is a national and citizen of China. He was born on [date] in the People’s Republic of China. A copy of his passport, which he provided to the Department, supports this claim. There is no evidence to suggest the applicant’s passport is a bogus document.
The Tribunal is satisfied that the applicant would be recognised in China as a national and citizen of China, and that the applicant is a national and citizen of China. Accordingly, the Tribunal finds China is the applicant’s receiving country for the purposes of s 36(2)(aa) of the Act.
There is no evidence to suggest that the applicant has a right to enter and reside in a country other than China, and accordingly the Tribunal finds the applicant is not excluded from protection under the laws of Australia by s 36(3) of the Act.
After considering the contents of the Department file and the Tribunal file the Tribunal determined a remote hearing instead of an in-person hearing would not cause any injustice or unfairness to the applicant. Accordingly, on 27 August 2021 the Tribunal invited the applicant in writing to attend an audio-visual hearing to be conducted via Microsoft Teams to consider the merits of the review application on 13 September 2021. The invitation was sent to the last authorised address for correspondence the applicant notified to the Tribunal. Without explanation the applicant failed to attend the hearing. The applicant last communicated with the Tribunal on 13 June 2019 when he provided to the Tribunal a written notice of his new email address for correspondence. In these circumstances the Tribunal has decided to proceed to determine the review on the basis of the available information without taking any further steps to obtain additional information from the applicant.
According to the visa application the applicant married in China [in] October 2007. He is the father of one child who was born in China on [date]. The applicant’s wife and child reside in China.
The applicant provided a copy of the record of the delegate’s decision to the Tribunal and the Tribunal has read the decision.
According to the delegate’s decision the applicant arrived in Australia [in] July 2017 on a visitor visa. He applied for a protection visa on 22 August 2017.
Protection claims
In seeking protection, the applicant claims in his visa application form:
·He is a Falun Gong practitioner
·He did not experience harm in China
·He did not move, or try to move to another part of China to seek safety
·There was no need to move to another part of the country and there was nowhere to move to
·If he returns to China, he will be detained by police and tortured or imprisoned if he continues to practise Falun Gong
·There is no place in China where he would not be harmed.
The applicant added to his claims in a written but unsigned statement he submitted to the Department along with the visa application form. In that statement he claims:
·He is a physically weak person prone to colds and fever
·His unnamed friend introduced him to Falun Gong to improve his health
·He was curious to learn why Falun Gong was banned by the government
·He borrowed and read books relating to Falun Gong
·He downloaded Falun Gong music and exercise videos to his telephone
·He practised Falun Gong
·He discussed Falun Gong with his unnamed friend
·He sometimes attended Falun Gong gatherings
·His health improved and he felt happier
·His phone was stolen during Chinese New Year in 2017
·Whoever stole his phone was able to access the contents of the phone; by text message some person demanded money from the applicant in return for not giving his phone and the Falun Gong material stored in the phone to the police
·The text message was received by the applicant on his new telephone. Thereafter he changed his phone number, but he continued to live in fear of arrest and imprisonment due to the threat to give his telephone to the police
·In that state of fear the applicant fled to Australia.
In assessing the merits of the applicant’s claims the Tribunal has been mindful of the application of s 5AAA of the Act in this review: s 5AAA makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claims. Nor does the Tribunal have any responsibility or obligation to establish or assist in establishing the claim.
In claiming to be a Falun Gong practitioner, the applicant provided no evidence of practising Falun Gong in Australia. Considering the applicant has been in Australia since August 2017, it is reasonable to apprehend that if he is a Falun Gong practitioner, he would provide evidence of his practice in Australia. The absence of any specific and detailed evidence of the applicant practising Falun Gong in Australia weighs against accepting the applicant is a Falun Gong practitioner and that he would be a Falun Gong practitioner if he returned to China.
According to the applicant, the text message attempt to blackmail him triggered his fear of being arrested and imprisoned. The existence of the text message is central to establishing the applicant’s claim that he is owed protection in Australia. The applicant does not assert that he deleted the message, or that it is otherwise unavailable to him. Without explanation, the applicant has not provided a copy of the text message to the Department or the Tribunal. In that circumstance, and considering the available evidence as a whole, the Tribunal finds the evidence is insufficient to establish to the satisfaction of the Tribunal that the text message was sent to the applicant or that he received the message.
Furthermore, the evidence is insufficient to establish to the satisfaction of the Tribunal that the applicant’s phone was stolen, and the existence of a risk of it being given to police.
The applicant has not supported his claim to be a Falun practitioner with specific evidence that supports his claim to have read Zhuang Falun and Falun Dafa, practised the rituals and listened to music he associates with the practise of Falun Gong.
The evidence available to the Tribunal, when considered as a whole, is insufficient to establish to the satisfaction of the Tribunal that the applicant practised Falun Gong in China; that his phone contained information relating to Falun Gong; that his phone was stolen; that he received a text message that demanded money in return for not handing his telephone to police; that he fled China in fear of blackmailers handing his stolen phone to police; and, that the applicant would practise Falun Gong if he is removed to China now or in the reasonably foreseeable future.
The evidence is also insufficient to establish to the satisfaction of the Tribunal that it is likely the applicant would suffer serious harm in China for reasons of his religious beliefs, if he were removed to China now or in the reasonably foreseeable future.
The evidence considered in totality, it is insufficient to establish to the satisfaction of the Tribunal, the existence of a real chance the applicant would suffer serious harm for reasons of religion or for any other reason specified in s 5J (1)(a) of the Act, if he is removed to China now or in the reasonably foreseeable future.
Having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied the applicant is a refugee for the purposes of the Act, and therefore the applicant is not a person in respect of whom Australia has protection obligations, and the applicant does not satisfy the criterion in s 36(2)(a) of the Act.
Complementary protection
The Tribunal now turns to consider whether the applicant satisfies the criterion in s 36(2)(aa) of the Act. A person will satisfy the criterion if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, in this case China, there is a real risk the applicant will suffer significant harm. The definition of significant harm is stated in s 36A of the Act which is reproduced in the attachment to this decision.
In view of the Tribunal’s findings that it is not satisfied the applicant is a Falun Gong practitioner; that the applicant practised Falun Gong in China; that his telephone was stolen; that he received the text message he relies on in this review; or, that he would practise Falun Gong in China if he returned to China now or in the reasonably foreseeable future, the evidence is insufficient to establish to the satisfaction of the Tribunal the existence of a real risk the applicant will suffer significant harm in China.
Furthermore, in applying the decision in MIAC v SZQRB (2013) 201 FCR 505, [246], [297], [342], in this review, the Tribunal accepts the ‘real risk’ test is the same as the ‘real chance’ test in the refugee criterion in s 36(2)(a) of the Act. Therefore, for the reasons outlined above, the Tribunal is not satisfied that, as a necessary and foreseeable consequence of the applicant being removed to China, there is a real risk he will suffer significant harm.
Accordingly, the Tribunal is not satisfied that the applicant meets the criterion in s 36(2)(aa).
There is no suggestion that the applicant meets the family member criterion in s 36(2)(b) or (c) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Haag
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.
…

[2021] AATA 3974

16 September 2021

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Jurisdiction

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