1811256 (Refugee)

[2021] AATA 3512

1811256 (Refugee) [2021] AATA 3512 (7 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1811256

COUNTRY OF REFERENCE:                   China

MEMBER:Mr S Norman

DATE:7 July 2021

PLACE OF DECISION:  Sydney

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

Statement made on 7 July 2021 at 11:20am

CATCHWORDS
REFUGEE – protection visa – China –  – religion – Christianity – member of underground church – did not attend hearing – insufficient detail in claims – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J, 36(2), 65, 426A
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIEA v Guo (1997) 144 ALR 567
Randhawa v MIEA (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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 April 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal. The applicant who claims to be a citizen of China, had applied for the visa on 29 August 2017.

   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 (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.

3. 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.

4. 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).

5. 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.

6. 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).

   Mandatory considerations

7. 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

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

9. The applicant did not attend the Department interview which had been scheduled for 10 April 2018.

10. By hearing invitation letter dated 8 June 2021 (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 on 7 July 2021. 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 (the first one week before the hearing and the second, the day before the hearing). As noted below, no response was received prior to the scheduled commencement of the hearing (being 10:00am).

11. As the hearing was to be conducted during a ‘snap’ COVID-19 lockdown, by email of 28 June 2021, the Tribunal also attempted to contact the applicant in order to be able to proceed with a hearing by video conferencing (assuming he had access to the necessary technology); or via telephone. Again, and as noted below, no response was received prior to the scheduled commencement of the hearing.

12. On the day of the hearing, the Tribunal made multiple attempts to contact the applicant by telephone. At around 10:30am (the last of three attempts), the applicant answered his phone and the Tribunal was advised (orally by the hearing room officer), the applicant said he did not wish to attend the hearing. He then disconnected the call.

13. Therefore, 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:

14. The applicant said he completed high school in China;[1] and that he was employed in China in ‘general duties’ in a [business] (between 1 July 1992 and 30 June 2007); and ‘general duties’ in another [business] (between 1 July 2017 and 21 June 2017).[2] Between 22 June 2017 and 29 August 2017, he said he was unemployed. In his PV application, the applicant also said:[3]

    ·     He is a ‘devout underground Christian’. He said he had been ‘unwell and depressed’ and his parents had taken him to many doctors. He said that when he became a Christian, his ‘health gradually improved’. He said he ‘felt happy with the Lord’s teachings’; and that he ‘made many friends and felt lucky to be a Christian’. He said the ‘Lord Jesus taught him a lot’

    ·     However, many of his friends had been caught during an underground gathering and were cruelly tortured and insulted in a detention centre. The police had also wanted to arrest the applicant as they knew he was a devout underground Christian

    ·     He said he did not relocate within China, because China is a one-party dictatorship and forbids underground Christians. He feared that wherever he went to in China, he would be harmed by the government

    ·     The applicant eventually ‘escaped to Australia’. He feared that if he returned to China, he would be forced to give up his belief and he would be cruelly tortured in prison. He said that as an underground Christian, he could not survive in China

    Assessing the applicant’s claims:

    [1] PDF – p.19 (‘PDF’ refers to the merged Department file in the Tribunal CASEMATE database).  

    [2] PDF – p.17.

    [3] PDF – p.20.

15. The Tribunal has seen a photocopy of the applicant’s passport on the Department file (# [number] – expiry date [2026][4]) and I accept he is a citizen of China, and that China is the applicant’s 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 said, the applicant did not provide sufficient detail to satisfy the Tribunal (for instance) that he was a Christian, that he had engaged in Christianity in China or Australia, that he was imputed as a Christian, and/or why he was able to depart China lawfully on a passport in his own name, if he was wanted by the Chinese police as he claimed.

    [4] PDF – p.3.

16. 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. 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.

17. That said, based on the claims he has 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.

18. 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:

19. 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).

20. 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

21. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Mr S Norman
    Member