1807785 (Refugee)

[2023] AATA 4533

1807785 (Refugee) [2023] AATA 4533 (20 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1807785

COUNTRY OF REFERENCE:                   China

MEMBER:Mr S Norman

DATE:20 October 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 October 2023 at 11:10am

CATCHWORDS

REFUGEE – Protection Visa – China – applicant failed to attend tribunal hearing – religion – Christian – applicant does not have a well-founded fear of persecution – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 91, 426, 499

Migration Regulations 1994, Schedule 2

CASES
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 March 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant who claims to be a citizen of China, applied for the visa on 21 September 2017. The Department delegate’s decision was not lodged with the Tribunal.

   CRITERIA FOR A PROTECTION VISA

2. 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.

   Mandatory considerations

3. 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

4. The applicant did not attend the Department interview, which had been scheduled for 1 March 2018.

5. By hearing invitation letter dated 28 September 2023 (dispatched by email), the Tribunal advised the applicant it had considered all the material before it relating to his application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing at 9:30am on 20 October 2023. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. The Tribunal also sent two SMS hearing reminder texts to the applicant shortly prior to the hearing.

6. Regarding the scheduled hearing, the applicant did not respond to the Tribunal hearing invitation letter, as he was invited to do. Neither did he request the Tribunal hearing be re-scheduled. Neither did he attend the Tribunal at the day and time of the scheduled hearing.

7. Accordingly, after considering the evidence, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

   The applicant’s claims:

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. In his Protection visa (PV) application, the applicant claimed:

   ·     He is a Christian and that he commenced to practise Christianity while in secondary school

   ·     He explained a priest was ‘kind and nice and taught him stories from the bible’. The applicant said he had a ‘great time’ until October 2010

   ·     Around that time, the ‘village government’ told the priest the church would be knocked down. It was said that Christianity was ‘not suited to socialist values’

   ·     The government then arrested the priest and sent him to a mental hospital. Also a neighbour was arrested – as well as other Christians

   ·     The applicant’s parents were ‘horrified’ and they arranged for the applicant to travel outside China

   ·     The applicant then flew to Hong Kong, where a people smuggler gave him a Taiwanese passport. The applicant used this passport to enter Australia (though he also provided the Department a copy of his Chinese passport)

   ·     The applicant subsequently heard the priest committed suicide, and the rest of the Christians were arrested and jailed, and several were insane and disabled

   ·     The applicant’s parents were afraid he would be in the same situation if he came home

   ·     The applicant feared that if he returned to China, he would be imprisoned for the rest of his life or sent to a ‘mental hospital’ – as he is on a ‘political blacklist’

   ·     He also said he would be imprisoned and ‘tortured until he make a conviction of overturning government’[1]

   The Tribunal’s consideration of material claims:

   [1] PDF – p.57.

9. The Tribunal has seen a photocopy of the bio-data page of the applicant’s purported Chinese passport, and I will accept he is a citizen of China, and that China is his receiving country. However, the mere fact that an applicant claims to fear harm 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/s claimed. Further, the Tribunal is not required to accept uncritically any and all the allegations made by an applicant (Randhawa v MIEA (1994) 52 FCR 437, p.451). That being said, the applicant did not provide sufficient detail to satisfy the Tribunal (ie) that he was a Christian or that he was imputed to be a Christian, or that he fled China for the reasons he claimed, or at all.

10. It remains for the applicant to satisfy the Tribunal that all of the statutory elements for the grant of protection are made out (MIEA v Guo & Anor (1997) 144 ALR 567 p.596); and although the concept of the onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 p.288), the relevant facts of the individual case will have to be supplied by the applicant themselves, in as much detail as is necessary to enable the decision maker to establish the facts.

11. A decision maker is not required to make the applicant’s case for him or her (Prasad v MIEA (1985) 6 FCR 155 pp.169-70; Luu & Anor v Renevier (1989) 91 ALR 39 p.45). The Tribunal acknowledges this guidance had been developed for the purposes of considering refugee protection claims, however, I am satisfied it is materially applicable to the assessment of complementary protection claims.

12. That said, based on the claims he had provided, the Tribunal is not satisfied all the statutory elements for the grant of protection are made out. Accordingly, I do not accept the applicant has a well-founded fear of persecution for a reason prescribed in the Act; or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm.

13. Neither is there any issue, squarely raised by the evidence though not articulated, that has satisfied the Tribunal the applicant has a real chance of suffering serious or significant harm in China.  

    Finding:

14. For the reasons given above, the Tribunal is not satisfied 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 considered the alternative criterion in s.36(2)(aa). However, and for the same reasons, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

15. 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

16. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Mr S Norman
    Member