1814275 (Refugee)

[2024] AATA 2413

1814275 (Refugee) [2024] AATA 2413 (6 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1814275

COUNTRY OF REFERENCE:                   China

MEMBER:Tony Caravella

DATE:6 May 2024

PLACE OF DECISION:  Perth

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

Statement made on 06 May 2024 at 12:01pm

CATCHWORDS
REFUGEE – protection visa – China – religion and political opinion – Christian – protested against government workers removing cross from church – beaten, detained and tortured – no supporting evidence provided – consent to decision without hearing – applicant’s responsibility to specify particulars and provide sufficient evidence – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), (5), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), 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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 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 4 November 2017. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant is a refugee as defined by s 5H(1) of the Act and found the applicant is not a person in respect of whom Australia has protection obligations pursuant to s 36(2)(a) of the Act.  The delegate was not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to China, there is a real risk that he will suffer significant harm as defined in s 36(2A) of the Act.  The delegate found the applicant is therefore not a person in respect of whom Australia has protection obligations pursuant to s 36(2)(aa) of the Act.

3. On 17 May 2018, the applicant lodged an application for a review of the delegate’s decision by this Tribunal.  A copy of the delegate’s Decision Record accompanied the applicant’s application for review.

4. On 22 February 2023, the Tribunal issued a hearing invitation to the applicant.  The invitation  invited the applicant to appear before the Tribunal on 3 April 2024 to give evidence and to present arguments relating to issues arising in his case.  The hearing invitation informed the applicant, amongst other things, that if he did not appear at the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or to enable the applicant to appear before the Tribunal.

5. On 29 March 2024, the Tribunal received an email from the applicant.  It states, ‘Dear judge, I am not going to attend the hearing. Please make a decision directly.’

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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.

8. 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).

9. 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.

10. 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

11. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this case is whether the applicant meets the criteria prescribed in the Act in relation to s 36(2).  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Making a decision without a hearing

13. The Act requires the Tribunal reviewing cases in its Migration and Refugee Division (MRD) to conduct a hearing prior to making its decision.  However, the Tribunal may make a decision without inviting an applicant to attend a hearing where the applicant consents to the Tribunal deciding the review without the applicant appearing before it.  I have considered the applicant’s email received on 29 March 2024 where he states he will not attend a hearing and requests the Tribunal to make a decision directly.  I am satisfied that this is a clear expression of the applicant giving the Tribunal written consent for it to make a decision based on the evidence before it and without conducting a hearing.  I have considered the circumstances in this case, and the applicant’s consent as discussed, and have decided to exercise the discretion to proceed and to make a decision based on the evidence before me.

    The applicant’s protection claims

14. In his Application for a protection visa which was lodged with the Department online on 4 November 2017, the applicant declares he was born in Puyang, Henan, China, in [Year].  He declares he is a citizen of China.  He claims he does not have a right to enter or to reside in any other country other than his country of nationality.  He also declares he is married and has on child who was born in [Year]. 

15. He declares he last arrived in Australia in Sydney [in] August 2017.  He also claims he travelled for work to [Country] from [April] 2011 to [April] 2014.  He declares he has also worked as [an occupation] in China from 2001 to 2011. 

16. He declares he left China because he was unjustly detained and tortured after taking part in a protest against a government campaign in his village.  The village is called [Village] in the town of [Town].  He claims he is a Christian and that he has been Christian for 5 years.  He claims the Chinese communist government wants to persecute and torture them because they fear they are weakening their power.

17. He claims the Chinese government brought government workers to tear down a cross on their church and they abused and insulted those holding the Christian belief.

18. He claims that [in] January 2017, the applicant and others gathered in front of their church with their pastor and the pastor’s wife.  He claims they had a banner which read ‘Safeguard the dignity of Christian belief, defend our churches instead of removing their crosses.’  He claims the police beat them and took him and detained him at the police station for 3 months.  He claims he has been transformed into an angry person and he will not stop defending the church and protesting the removal of the most sanctified symbol of Christianity.

19. He claims he experienced harm in China because he was in prison for 3 months. He claims this was mentally challenging and the guards would mistreat him and sometimes he was denied food for an entire day.  He claims he was tortured on the first 2 days when there was ‘lashing me on my back’ when he refused to repeat vile words about Christianity and Jesus Christ. 

20. The applicant claims he did not seek help in his country because he feared the Chinese government would torture him.  He also claims that he did not move to another part of his country to seek safety because he thinks moving in China would not make him feel secure and safe.

21. The applicant claims that if he returns to China he will be tortured and maybe killed if he remained a Christian and defiled the government authorities.  He claims he will be whipped and insulted and will live a miserable life full of anger and unhappiness.

22. He declares the authorities in his country will never protect him because they are all communists and unbelievers, their heart is filled with authority and dictatorship, and they want power and to enslave him.

23. The applicant declares he did not relocate within China because he thinks this would not have made him safe.

24. The delegate’s Decision Record states the applicant did not attend a Protection visa interview which was scheduled for 20 April 2018 at the Border Protection offices, 26 Lee Street, Sydney.  The applicant gave no reason for non-attendance.

    Country of reference

25. I observe from the delegate’s Decision Record that the delegate found the applicant provided his Chinese passport as documentary evidence of his identity and nationality.  The delegate was satisfied that the evidence before him/her demonstrated the applicant’s identity and evidenced the applicant is a citizen/national of China.  There is no evidence before me to cause me to doubt the delegate’s conclusion in relation to the applicant’s identity and nationality.  Accordingly, I proceed on the basis that the applicant is a citizen of the People’s Republic of China.  I accept the country of reference in this appeal is the People’s Republic of China and that he faces removal to that country if his protection/non-refoulement claims are rejected.

    Does the applicant face a real chance of persecution – s 36(2)(a)?

26. The Act places certain obligations on protection visa applicants in presenting their case.  For example, s 5AAA sets out that it is the responsibility of an applicant to specify all the particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.  The Tribunal has no responsibility or obligation to specify or to assist in specifying any particulars of the claim, or to establish the claim. 

27. As the applicant has declined to appear at a hearing designed to enable him to give evidence in support of his claims, I have decided to proceed to make a decision based on the information before me. That consists of the written information and claims set out in the Application for a protection visa (‘his Application’) which was lodged with the Department online on 4 November 2017, and which I have summarised above.  I therefore now turn to consider those claims.

28. I accept the applicant is a citizen of China and that he last arrived in Australia in Sydney [in] August 2017 as declared in his Application.  I am also prepared to accept his claim that he travelled for work to [Country] from [April] 2011 to [April] 2014, and that he worked as [an occupation] in China from 2001 to 2011. 

29. However, in relation to his claim that he departed China because he was unjustly detained and tortured after taking part in a protest against a government campaign in his village, I am not satisfied that the evidence before me demonstrates this claim in any way.  I have decided to proceed to a decision on the information before me and I am not satisfied on the evidence before me that the applicant is a Christian or that he has been Christian for 5 years.  There is simply no independent supporting or other credible evidence whatsoever to support that proposition.  Nor has the applicant provided a scintilla of evidence to suggest that he has been involved in pro-Christian or anti-government protests, or that he was imprisoned for doing so as claimed.  Similarly, apart from making written claims alleging the Chinese communist government wants to persecute and torture him and others like him because they fear they are weakening their power, the applicant has provided no credible or persuasive evidence to support such a proposition. 

30. I have considered the applicant’s claim where he asserts that the Chinese government brought government workers to tear down a cross on their church and they abused and insulted those holding the Christian belief. He claims that from this incident flowed a protest in January 2017 in which he and others were beaten and then arrested and detained for 3 months. However, I find the applicant has provided no credible or persuasive evidence to support that claim. Further, I find reliable country of origin information (‘COI information’) reports appear to be inconsistent with the applicant’s claims where he suggests he will not be permitted to worship in his religion if he returns to his country. In particular, the DFAT reports that China officially recognises 5 religions, including Catholicism,[1] and the same source reports that Christianity is growing rapidly in China. Estimates of the number of Christians vary and an official Chinese government source reports there are 38 million Christians in China, although the 2020 US Department of State International Religious Freedom Report estimates there are 70 million Christians throughout China.[2]  In the face of this COI information, and without the applicant providing any further evidence or arguments, based on the evidence before me, I am not satisfied that his claim that he was arrested and detained is credible.

    [1] Para 3.22, DFAT Country Information Report People’s Republic of China, 22 December 2021

    [2] Para 3.28, DFAT ibid.

31. Turning to consider whether there is a real chance of serious harm amounting to persecution facing the applicant if he returns to China, as discussed in the previous paragraph, based on the evidence before me I am not satisfied the applicant was targeted for harm in the past for reasons of his religion, or for any other reason.  Based on the evidence before me, I am not satisfied that the applicant faces any risk of harm for reason of his religious beliefs, or for any other reason, now or in the reasonably foreseeable future if he returns to China.  I find the applicant has provided no credible evidence to satisfy me, even on the low standard applicable to protection claims, that he faces any risk of harm as contemplated in the non-exhaustive list in s 5J(5) of the Act.

32. For all these reasons, I am not satisfied the applicant faces a real chance of being tortured and killed as he claims for reason of his Christian religion if he returns to his country now or in the reasonably foreseeable future.  I therefore do not accept the evidence before me demonstrates the applicant faces a real chance of serious harm if he is returned to China and therefore do not accept that he has a well-founded fear of persecution on any ground.  The applicant therefore fails to satisfy s 36(2)(a) of the Act.

    Does the applicant face a real risk of significant harm – s 36(2)(aa)?

33. As I have found the applicant does not meet the criterion in s 36(2)(a) of the Act for refugee protection, I must consider whether the applicant meets the criterion pursuant to s 36(2)(aa) for ‘complementary protection’.

34. Section 36(2A) provides that ‘significant harm’ exists where a non-citizen will be arbitrarily deprived of his or her life; or the death penalty will be carried out on the non-citizen; or the non‑citizen will be subjected to torture; or the non-citizen will be subjected to cruel or inhuman treatment or punishment; or the non-citizen will be subjected to degrading treatment or punishment.

35. I have considered all the evidence and claims before me individually and cumulatively and have set out my assessment of whether there is a real chance of the applicant being harmed in any way for the reasons claimed if he is removed to China. For all the reasons I have set out in the preceding paragraphs, I am not satisfied that there is a real chance of the applicant being harmed in any way falling within the definitions of significant harm for any of the reasons advanced in his claims. Having regard to all the evidence and circumstances in this case, and for the same reasons discussed in the foregoing assessment of his refugee protection claims, I am also not satisfied that there is a real risk the applicant will suffer ‘significant harm’ on any basis identified or cognisable if he is removed from Australia to China.

    Conclusions

36. 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).

37. 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 is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

38. 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

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

    Tony Caravella
    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.

    …