1805334 (Refugee)

1805334 (Refugee) [2024] AATA 437 (17 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1805334

COUNTRY OF REFERENCE: China
MEMBER:R Guemy
DATE:17 January 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 January 2024 at 9:35am
CATCHWORDS
REFUGEE – protection visa – China – religion – Catholic – underground church youth group – protests – detention – bribery – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, 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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant, [an age]-year old male and citizen of China born in Fujian province, has applied for review of a decision made by a delegate of the Minister for Home Affairs on 15 February 2018 to refuse to grant him a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant entered Australia [in] October 2016. He applied for a protection visa on 14 July 2017.
CLAIMS AND EVIDENCE
Evidence given to the Department
In a statutory declaration dated 14 July 2017 the applicant claimed that:
i.he was influenced by the Roman Catholic beliefs of his friend [Friend A];
ii.during summer school holiday between July and August 2012 [Friend A] invited him to attend bible study classes with him organised by an underground Roman Catholic Church for the purposes of baptism and confirmation;
iii.at the conclusion of the Bible study class the applicant was baptised and [Friend A] had his confirmation;
iv.in September 2012, [Friend A’s] father was arrested by the Public Security Bureau (PSB) after sending a letter to the Beijing central government condemning the Chinese government’s persecution of Daqin MA (aka Thaddeus Ma Daqin), who had been appointed as Roman Catholic Bishop of Shanghai with the approval of the Holy See and the Chinese government in 2012 but who publicly announced his resignation from the Chinese government-mandated Chinese Patriotic Catholic Association and was taken into custody as a result;
v.[Friend A’s] father was detained for three months, during which time his health aggravated seriously due to inhuman treatment in the detention centre;
vi.[Friend A] dropped out of middle school in January 2013 in order to earn money to pay for medical costs for his father;
vii.after [Friend A’s] father’s arrest the applicant did not attend any church activities for quite a long time because the underground church which is father had attended was implicated by his father’s case and had to terminate its activities;
viii.[Friend A] had to move from one place to another, working at different [work] sites and his father passed away in 2014;
ix.the applicant has never believed that the official registered or patriotic church is a genuine Roman Catholic Church and he has never attended it;
x.in September 2014 the applicant started studying [level] in [Town 1], Mawei District, Fuzhou City, living in a student dormitory;
xi.around the same time [Friend A] started working in a [shop] in [Town 1] opened by [Mr A] who was a friend of [Friend A’s] father;
xii.in January 2015, [Mr A] established an underground church youth meeting group that the applicant and [Friend A] became members of;
xiii.the applicant recruited new members to the youth meeting group from students he studied with at [the applicant’s college] and arranged for them to attend the youth meeting group;
xiv.the youth meeting group got in trouble with Chinese authorities because authorities found out that someone spread religious beliefs to students on campus and because more and more young people came to the underground youth meeting group rather than the official church;
xv.in May 2016, [Mr A’s] [shop] was closed down by the PSB and he, [Friend A] and the applicant were arrested and subjected to interrogation by the PSB;
xvi.they were sent to [Prison 1], put into different cells and suffered from inhuman treatment and cruel torture both at the PSB and in the detention centre;
xvii.his sister’s friend [named], who worked as [an occupation 1] in Fuzhou, used her social contacts to bribe the police officer in charge of the applicant’s case and this led to the applicant’s release after two weeks of detention on the condition that he co-operate in the PSB’s investigation of [Mr A] and [Friend A], that he report to the PSB on a regular basis and that he no longer engage in church activities;
xviii.his father sold his [equipment] to finance the applicant’s departure from China [in] October 2016 with the help of a reliable friend;
xix.he has been attending the Roman Catholic Church since arriving in Australia;
xx.he will be subjected to persecution due to his religious belief if he goes back to China, therefore he seeks protection in Australia.
The applicant also provided a letter of support from [Father A] dated 29 October 2017 indicating that the applicant had told him that he (the applicant) had been attending church at [Church 1] since 2016.
The applicant attended an interview with the Department’s delegate on 4 November 2017 which was conducted with the assistance of an interpreter in the Mandarin and English languages.
The delegate accepted that the applicant practiced a Catholic faith in Australia but based on country information and having regard to the applicant’s profile (i.e. not being a church leader, politically active or publicly agitating in a way seen as threatening to the government), he was not satisfied that the applicant would face harm for reasons of his Catholic faith or any related past acts he had undertaken if he returned to China. The delegate was not satisfied that there was a real chance of persecution for the reasons mentioned in subsection 5J(1)(a) in China; or that there was a real risk the applicant would suffer significant harm. Because of this, the delegate found that the applicant was not a person in respect of whom Australia owed protection obligations under s 36(2)(a) or (aa).
Evidence given to the Tribunal
The applicant provided a copy of the delegate’s decision record with is application for review to the Tribunal. He provided no further evidence or submissions in support of his claims nor did he make any further claims.
On 31 May 2023, the Tribunal conducted contacted the applicant via his representative who was also his authorised recipient asking him to complete a pre-hearing information form. In response to this, the applicant’s representative wrote to the Tribunal on 7 June 2023 advising the Tribunal that they had tried their best to contact the applicant by his mobile phone and sending him the Tribunal’s letter relating to completing the pre-hearing information form by mail but had been unsuccessful. The representative provided the Tribunal with the last contact details of the applicant that they had. These details were consistent with what the Tribunal had.
On 4 December 2023, the Tribunal invited the applicant to appear before it on 12 January 2024 to give evidence and present arguments in relation to the issues under review because it considered that it could not decide the review in the applicant’s favour on the basis of the material before it. The Tribunal sent this invitation to the applicant’s authorised recipient who was also his representative. The Tribunal also sent the invitation to the last residential address provided to the Tribunal by the applicant in connection with the review.
On 9 December 2023, the applicant’s representative wrote to the Tribunal and indicated that they had once again tried their best to contact the applicant after receiving the Tribunal’s hearing invitation but were once again unsuccessful. They indicated that they were unable to act as the applicant’s migration agent and that they were no longer his recipient. The Tribunal responded to the representative by email on 11 December 2023, acknowledging the representative’s intention to withdraw as the applicant’s authorised recipient and representative, however indicated that it was legally bound to continue to give the representative any document that it would otherwise have given to the applicant until it received express authorisation from the applicant to withdraw their authorised recipient in the matter.
On 5 January 2024, the Tribunal sent a hearing reminder via SMS to the applicant’s mobile phone number. The deliver of this SMS failed on 8 January 2024. On 11 January 2024, the Tribunal sent another hearing reminder via SMS to the applicant’s mobile.
The applicant did not appear before the Tribunal at the time and place at which he was scheduled to appear on 12 January 2024. Having regard to the applicant’s lack of engagement with the Tribunal since lodging his review application, his representative’s inability to contact him despite their best efforts, and the absence of any other known means of contacting the applicant, the Tribunal has decided to make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
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 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
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 issue in this case is whether the applicant meets the criteria for the grant of a protection visa.
The Tribunal has considered the copy of the applicant’s passport and finds that he is a Chinese national. The Tribunal finds that China is the applicant’s country for nationality for the purposes of s 5H of the Act and the receiving country for the purposes of s 36(2)(b) of the Act.
The Tribunal has considered and had regard to all material on the Department file (including listening to the applicant’s interview with the delegate on 4 November 2017) and the review application file. The evidence the applicant gave to the Department and to the Tribunal lacked the detail to allow the Tribunal to be satisfied that he had attended meetings in the underground Roman Catholic Church in China, that his friend’s father had been arrested and detained for writing a letter to the central Beijing government to protest the arrest of Thaddeus Ma Daqin, that he was the member of an underground Roman Catholic youth meeting group, that he was arrested and detained for his membership of this group, that he had to arrange to bribe a police officer to secure his release or that his father sold his [equipment] in order to finance their applicant’s escape from China. The material given by the applicant to the Department and Tribunal also lacked the detail to allow the Tribunal to be satisfied that he had attended the Roman Catholic Church since arriving in Australia.
The Tribunal has been unable to explore these matters with the applicant in further detail because the applicant failed to appear before it to give evidence and present arguments after the Tribunal invited him to do so, noting in its invitation dated 4 December 2023 that it was unable to make a favourable decision on the material that was before it.
Had the applicant appeared at hearing, the Tribunal would have explored with him his relationship with [Friend A], the circumstances in which he came to start practicing the Roman Catholic faith, what took place during underground church meetings that he claimed to have attended, the significance of the applicant’s faith to him, his knowledge and understanding of Roman Catholic doctrine, the circumstances of his arrest and detention, the manner in which he was released from detention and eventually left China and the nature and extent of his attendance of the Roman Catholic Church since arriving in Australia.
Having regard to the evidence before it, the Tribunal does not accept that the applicant had a friend named [Friend A], that he ever attended underground Roman Catholic Church meetings in China with [Friend A], that [Friend A’s] father was arrested and detained for writing a letter protesting the arrest and detention of Thaddeus Ma Daqin, that [Friend A’s] father died, that the applicant attended underground Roman Catholic youth meeting groups in [Town 1] with [Friend A] and [Mr A], that they were arrested and detained, that the applicant had to arrange to bribe a police officer to secure his release or that his father had to sell his [equipment] to finance the applicant’s escape from China.
The Tribunal has had regard to the support letter from [Father A] dated 29 October 2017 but is not satisfied that this adequately establishes that the applicant has attended Roman Catholic Church services since arriving in Australia.
Refugee criterion
In light of the findings above, the Tribunal finds that the applicant will not be harmed for any of the reasons he has claimed in his written statement or for any other reason upon return to China in the reasonably foreseeable future. For the purposes of s 5J(1)(b) the Tribunal is not satisfied that there is a real chance that the applicant would be persecuted for one or more of the reasons mentioned in s 5J(1)(a). As such, for the purposes of s 5H, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution and finds that he is not a refugee.
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).
Complementary protection criterion
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 has found that the applicant will not be harmed for any of the reasons he has claimed or for any other reason upon return to China. As such, for the purposes of s 36(2)(aa) the Tribunal is not satisfied that there is a real risk that he will be harmed upon return to China. It follows that the Tribunal is not satisfied that it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm.
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.
R Guemy
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.
…

[2024] AATA 437

17 January 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice