1812448 (REFUGEE)

[2024] AATA 1214

1812448 (REFUGEE) [2024] AATA 1214 (12 MARCH 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1812448

COUNTRY OF REFERENCE:                   China

MEMBER:Ann Duffield

DATE:12 March 2024

PLACE OF DECISION:  Canberra

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

Statement made on 12 March 2024 at 2:18pm

CATCHWORDS

REFUGEE – Protection Visa – China – religion – Christian – Tribunal does not accept that the applicant’s mother, or anyone else in the family including himself, were baptised into Christianity – applicant has provided no evidence to support claims – lack of detail and vague nature of the applicant’s claims – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 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 dependant.

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 18 April 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of China applied for the visa on 24 August 2017. The delegate refused to grant the visa on the basis that he was not a person to whom Australia had protection obligations.

3. The Tribunal wrote to the applicant on 16 January 2024 inviting him to provide information in relation to his claims for protection and his requirements in relation to any hearing that may be scheduled. He responded on 23 January 2024 indicating that he did not wish to appear before the Tribunal. Nevertheless, the Tribunal wrote to him on 13 February 2024 inviting him to appear before it on 26 March 2024. On 16 February 2024 the applicant again wrote to the Tribunal declining the hearing invitation and consenting to the Tribunal making a decision on the basis of information already before it.

4. On 26 February 2024 the Tribunal wrote to the applicant inviting him to comment on or respond to information that he had previously provided to the Department, but not directly to the Tribunal. The Tribunal provided copies of that information to the applicant, which included a copy of the delegate’s decision. The Tribunal informed the applicant that it did not have an audio recording of his interview with the delegate and sought his comments on whether the oral evidence recorded in the delegate’s decision was an accurate representation of the evidence he provided.

5. The Tribunal also provided the applicant with a copy of his statutory declaration dated 24 August 2017 which he provided to the Department. The Tribunal noted that it did not appear to be reflected in full in the delegate’s decision and sought the applicant’s comments on that statement including whether he wished to provide any additional information or corroborating evidence of those claims.

6. The Tribunal informed the applicant that depending upon his responses, the Tribunal may rely upon the information to be the reason, or part of the reason for affirming the decision under review. The applicant was given until 11 March 2024 to respond.

7. The applicant responded on 10 March 2024 confirming that the oral evidence as recorded in the delegate’s decision was an accurate representation of the evidence he provided at the Department’s interview and that his statutory declaration dated 24 August is major evidence in support of his application.

8. The Tribunal notes that in his communications with it on 23 January 2024, the applicant has indicated that he is no longer represented.

   BACKGROUND

9. The applicant provided the Tribunal with a copy of the delegates decision along with his application for review.

10. The applicant is a citizen of China born in [year]. There is no information before the Tribunal to indicate that the applicant is not who he claims to be and this assessment has therefore been conducted on the basis of China as the receiving country. There is no evidence before the Tribunal that the applicant has the right of entry and residence into a third country.

11. He has declared a wife and two children still resident in China.

12. The applicant arrived in Australia in May 2017 on a tourist visa. He applied for a protection visa in August 2017.

    Protection claims

13. The Tribunal is relying on the claims the applicant made in his statutory declaration dated 24 August 2017 as he has requested.

14. The applicant states that his mother became a Christian in round 2010 and the entire family was baptised. His mother was part of a public Christian church. In January 2012 the pastor of the Church was forced to leave, and a new pastor was sent to the church by the Chinese government. The new pastor began to impose strict government regulations on the church. After about a year, his mother left the church for that reason, and set up a family gathering group at [a] village in around January 2013. There were around 20 members who were permitted to evangelize to outsiders and to bring anyone to attend the group meetings. By June 2014 the church had around 80 members. The new pastor of the government church threatened his mother and tried to force her to disband the family church.

15. In June 2014 the applicant’s mother was reported to the Public Security bureau and she was arrested by the police in June 2014.

16. The applicant was working in Fuzhou at the time and immediately returned to secure the release of his mother. His appeals were refused, and he was not allowed to visit his mother. In August 2014 he was notified that his mother had passed away whilst in detention and she was cremated without himself, or his family being allowed to see the body. The family was told she passed away because of lung cancer.

17. From August 2014 to January 2017 the applicant claims that he appealed to various levels of government to investigate his mother’s death. Nothing happened and he was unable to find legal representation willing to help him challenge the PSB.

18. In January 2017 he confronted the pastor of the government church, openly accusing him of being a cipher for the government. He was arrested and detained by the PSB until 17 March 2017. He was beaten and tortured and forced to repent. His wife paid 100,000rmb to bribe the police to release him.

19. He was released on the basis he meets a list of conditions including never acting against the government, reporting weekly to the PSB, notifying police of his movements, and forbidden from continuing his business. He was constantly harassed by the police after his release. He decided to leave the country with the help of his friend on [date] May 2017.

20. The applicant’s wife is still constantly harassed by the police along with his father and brother. He will be subject to significant harm and persecution if he returns to China.

    CRITERIA FOR A PROTECTION VISA

21. 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.

22. 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.

23. 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).

24. 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.

25. 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

26. 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

27. The issue in this case is whether the applicant is a person to whom Australia owes protection obligations. The Tribunal found the applicant’s claims to lack credibility and relevant detail. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

28. The Tribunal accepts that the practice of Christianity in China is regulated by the Chinese authorities, except in relation to small informal family and community groups who may practice without being registered or monitored. House churches are generally tolerated although there have been reports that some small gatherings have attracted the adverse attention of the authorities. On the other hand, some congregations that number in the thousands can operate with little or no interference from local authorities. The delegate’s decision, which the applicant provided to the Tribunal, contains this relevant information.

29. The applicant has claimed that his mother and the whole family was baptised into a public Christian church in around 2010, but he has not provided evidence to support that claim, such as baptism certificates, for example, or described into which Christian denomination they were allegedly baptised.

30. The applicant’s evidence suggests that when his mother quit that church, she established her own “house” or “family” church, although he did not specify what denomination of Christianity was practised there. He did not state that he himself was involved in his mother’s house church, or if he was, what role he played. He did not indicate if he continued to practice Christianity or even if he attended his mother’s church. He did not indicate that his wife and children had been baptised into the church.

31. The applicant claims that his mother’s church had about 80 people at the time she was arrested in June 2014. He claims that the new pastor of her old church reported her for developing an illegal gathering and challenging the government church. Country information however indicates that such a small gathering was not illegal, nor would it be considered a challenge to the government church. Absent any specific claims, or further corroborating evidence, the Tribunal does not accept that the applicant’s mother would be arrested for this reason.

32. The applicant indicates that the pastor wanted to get his mother’s church closed down. He did not state, or imply, that his mother or her church were actually involved in activities that could be construed as being a threat to the government church or that his mother or her church gathering were otherwise controversial in any way.

33. The applicant goes on to claim that his mother was arrested in June 2014 because of the Pastor’s accusations and that she subsequently died in custody in August 2014. He claims he approached the PSB to demand his mothers release and subsequently for an inquiry into her death. He did not provide details of how or where he approached the PSB, including dates and addresses of the PSB offices, for example, or details of his demands, including whether they were oral demands, or whether he made them in writing. His oral evidence to the delegate, which he has confirmed is accurate, was inconsistent and confusing. He then claims that he went to the government church and insulted the Pastor in front of everyone in around early 2017 after which he was detained by the PSB for two months until March 2017. He claims he was beaten and tortured in detention and his wife had to bribe officers 100,000rmb to be released.

34. The Tribunal notes this confrontation was some three years after his mother’s death and the applicant does not explain why it took him so long to confront the Pastor or what prompted him to do so at that time. In the Tribunal’s mind, the applicant has confected this alleged confrontation in order to generate a reason for his detention by the PSB. The Tribunal does not accept that the applicant confronted the Pastor or that he was detained and tortured by the PSB.

35. The Tribunal does not accept that the applicant’s mother, or anyone else in the family including himself, were baptised into Christianity. The applicant has provided no evidence to support these claims, and his account is wholly unpersuasive. He does not state what Christian denomination the family were baptised into or provide any other relevant detail or evidence of that conversion.  Nor has the applicant provided any persuasive, corroborating evidence that the applicant’s mother established a small house church after her departure from the registered church. He has not said what denomination the church was, or provided details of where it held gatherings for example, or how it operated.

36. Be that as it may, even if the Tribunal accepts that the family were baptised and the applicant’s mother established a small house church, the same Country information seen by the Tribunal and the applicant, does not support his claims that the small house church of the character established by the applicant’s mother would be of any adverse interest to the authorities such that they would arrest, torture and kill her. The applicant has provided no additional information to demonstrate that the Chinese government would have any reason to develop an adverse interest in such a small, uncontroversial, house church, or his mother.  He has provided no evidence of his mother’s death, for example, a death certificate.

37. It follows that the Tribunal does not accept that the applicant’s mother was arrested, tortured and killed by the PSB for the reasons claimed or, based on the information before it, for any other reason. Equally, the Tribunal does not accept that the applicant himself was arrested and tortured by the PSB for confronting the Pastor, or for any other reason.

38. In the meantime, the applicant has stated that the police have never stopped making troubles for his wife, his father, and his brother but he has not gone on to describe why they are being “troubled” by the police, or in what way, or how often, or where, or that it has anything to do with him, or if it does, for what reason he continues to be of adverse interest to the authorities.

39. Again, the applicant has provided no relevant details or corroborative evidence of these claims, for example by providing statements from affected family members.

40. Given the Tribunal’s concerns about the overall credibility of the applicant’s claims, the Tribunal is not satisfied that the applicant or members of his family were or are of adverse interest to the Chinese authorities, or anyone else, such that they have or would suffer harm, significant or otherwise, or be arrested, detained or jailed, for the reasons claimed, or indeed for any other reason should he be returned to China now or in the reasonably foreseeable future.  

    CONCLUSION

41. Based on the evidence before it, and for the reasons above, the Tribunal is not satisfied that the applicant or members of his family suffered harm, significant or otherwise, or were of adverse interest to anyone in China in the past for the reasons claimed, or for any other reason.

42. The Tribunal is further not satisfied that the applicant’s fear of significant harm by reason of religion or imputed political opinion, or indeed for any Convention related reason, should he return to China now or in the reasonably foreseeable future, is well founded.

43. Based on the evidence before it, the Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

44. 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).

45. The Tribunal has found the applicant’s account of the harm he experienced in the past, and his fears of harm in the future are not well founded and lack credibility. On the information before the Tribunal, it has found no reason why the applicant would be of adverse interest to the authorities, or anyone else, in the past or that he would be of adverse interest to them in the future, for any reason, such that he would suffer any harm, significant or otherwise.

46. Considering all the evidence before it, separately and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk the applicant will suffer significant harm for the reasons stated, or for any other reason. The Tribunal therefore is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

47. 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

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

    Ann Duffield
    Senior 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.

    …