1821954 (Refugee) - [2024] AATA 4207

1821954 (Refugee) [2024] AATA 4207 (26 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1821954

COUNTRY OF REFERENCE: People's Republic of China (Hong Kong Special Administrative Region)
MEMBER:Ben Goulding
DATE:26 July 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 26 July 2024 at 4:45pm
CATCHWORDS
REFUGEE – protection visa – China – political opinion – pro-democracy protests in Hong Kong – threats from the Chinese authorities – change of name – British National (Overseas) passport – Taiwanese family citizenship – return visits to Hong Kong – delay in applying for protection – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 423, 424A, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 July 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 19 October 2015. The delegate refused to grant the visa on the basis that the applicant is not owed protection by Australia.
The applicant appeared before the Tribunal on 8 May 2024 and 22 July 2024 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Mandarin and English languages.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1821954 (Refugee)

Details

AGLC: 1821954 (Refugee) [2024] AATA 4207
Case: [2024] AATA 4207
Decision Date: 26 July 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the protection visa application of a female applicant from Hong Kong. The applicant claimed she would face persecution in Hong Kong due to her parents' participation in anti-Chinese protests in 2010 and her own alleged involvement with Falun Gong. The Department had refused her visa application, finding she did not meet the criteria for a refugee or complementary protection.

The primary legal issues before the Tribunal were whether the applicant qualified as a refugee under section 5H of the Migration Act 1958 (Cth) by demonstrating a well-founded fear of persecution for reasons of political opinion, or whether she was owed protection under the complementary protection provisions. The Tribunal was also required to consider the applicant's claims in light of updated country information and evidence provided throughout the review process.

The Tribunal concluded that the matter should be remitted for reconsideration. During the hearing, the applicant clarified her claims, stating she had not been involved with Falun Gong and that she attended the 2010 protest with her father, not her parents. She provided evidence of harassment directed at herself and her father following the protest, including threatening letters, phone calls, and damage to her father's vehicle. Her father also faced employment issues and alleged hacking of his social media account, which the applicant believed were linked to his political activities.

The Tribunal remitted the matter for reconsideration, indicating that further assessment was required regarding the applicant's claims of persecution and her eligibility for protection.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. The applicant’s background The applicant is [an age]-year-old female from Hong Kong. The applicant travelled to Australia on an apparently genuine British National (Overseas) passport held in the name of ‘[the applicant]’. The applicant previously travelled to Australia as the holder of a passport in the name of ‘[Alias A]’. According to Department records, that passport indicated that the applicant was a national of China. The applicant’s change of name and receiving country are addressed below. At hearing, the applicant gave evidence that since arriving in Australia, she has commenced a relationship with a citizen of Taiwan and they have had two children together. At the time of the first hearing, the oldest child was age]-years-old and the youngest child was only [age]. The applicant lodged a protection visa application with the Department on 20 October 2015.Consideration of application by the Department In summary, the applicant made the following claims in her protection visa application: a.Her parents were prosecuted in Hong Kong following their participation in anti-Chinese protests in 2010. b.She was abandoned by her parents, and they claimed she was not their child.c.The Chinese government will prosecute her due to her parents’ conduct and involvement in Falun Gong. d.Her fellow Falun Gong practitioners have suffered persecution. The applicant was not invited to attend an interview with the Department and no further material was provided by the applicant in support of her claims. The delegate refused the applicant’s protection visa application on 10 July 2018 on the basis of not being satisfied that the applicant would be persecuted for one or more of the reasons mentioned in s 5J(1)(a) of the Act and, as such, is not a refugee as defined in s 5H of the Act. The delegate also considered the applicant’s claims under the complementary protection criterion and determined that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Hong Kong, there is a real risk that the applicant will suffer significant harm. As such, the Department was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa).Consideration of application by the Tribunal The applicant appealed the Department’s decision to the Tribunal on 30 July 2018. Following this, the applicant was invited to a hearing on 8 May 2024. After the hearing, the Tribunal wrote to the applicant on 14 May 2024 and invited her to respond to information under s 424A of the Act. This information is dealt with in more detail below. On 27 May 2024, the applicant provided the following further information and evidence in support of her claim: a.A statement responding to the adverse information; andb.Hong Kong Post notification of registered item dated [in] December 2023.

Evidence

Evidence Before The Court

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 The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. The applicant’s background The applicant is [an age]-year-old female from Hong Kong. The applicant travelled to Australia on an apparently genuine British National (Overseas) passport held in the name of ‘[the applicant]’. The applicant previously travelled to Australia as the holder of a passport in the name of ‘[Alias A]’. According to Department records, that passport indicated that the applicant was a national of China. The applicant’s change of name and receiving country are addressed below. At hearing, the applicant gave evidence that since arriving in Australia, she has commenced a relationship with a citizen of Taiwan and they have had two children together. At the time of the first hearing, the oldest child was age]-years-old and the youngest child was only [age]. The applicant lodged a protection visa application with the Department on 20 October 2015.Consideration of application by the Department In summary, the applicant made the following claims in her protection visa application: a.Her parents were prosecuted in Hong Kong following their participation in anti-Chinese protests in 2010. b.She was abandoned by her parents, and they claimed she was not their child.c.The Chinese government will prosecute her due to her parents’ conduct and involvement in Falun Gong. d.Her fellow Falun Gong practitioners have suffered persecution. The applicant was not invited to attend an interview with the Department and no further material was provided by the applicant in support of her claims. The delegate refused the applicant’s protection visa application on 10 July 2018 on the basis of not being satisfied that the applicant would be persecuted for one or more of the reasons mentioned in s 5J(1)(a) of the Act and, as such, is not a refugee as defined in s 5H of the Act. The delegate also considered the applicant’s claims under the complementary protection criterion and determined that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Hong Kong, there is a real risk that the applicant will suffer significant harm. As such, the Department was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa).Consideration of application by the Tribunal

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The applicant was not invited to attend an interview with the Department and no further material was provided by the applicant in support of her claims. The delegate refused the applicant’s protection visa application on 10 July 2018 on the basis of not being satisfied that the applicant would be persecuted for one or more of the reasons mentioned in s 5J(1)(a) of the Act and, as such, is not a refugee as defined in s 5H of the Act. The delegate also considered the applicant’s claims under the complementary protection criterion and determined that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Hong Kong, there is a real risk that the applicant will suffer significant harm. As such, the Department was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa).Consideration of application by the Tribunal The applicant appealed the Department’s decision to the Tribunal on 30 July 2018. Following this, the applicant was invited to a hearing on 8 May 2024. After the hearing, the Tribunal wrote to the applicant on 14 May 2024 and invited her to respond to information under s 424A of the Act. This information is dealt with in more detail below. On 27 May 2024, the applicant provided the following further information and evidence in support of her claim: a.A statement responding to the adverse information; andb.Hong Kong Post notification of registered item dated [in] December 2023. On 25 June 2024, the Tribunal contacted the applicant and asked her to provide evidence of the identity of her children and partner. Following this, the applicant provided the following: a.Birth certificate for her eldest child, [named]; b.Confirmation of registration for a birth certificate for her second child, [named]; andc.Photographs of her children and family. On 2 July, the Tribunal wrote to the applicant and asked her to provide the passport for her partner. The applicant replied the same day and attached a copy of the biodata page of the passport for her partner, [Partner A]. The passport was issued by the Republic of China (Taiwan) and confirmed that [Partner A] was born in [Country 1]. Following receipt of this further information, the applicant was invited to a second hearing on 22 July 2024. Evidence at hearing At the commencement of the first hearing, the Tribunal provided the applicant with a summary of the claims provided in her protection visa application. Whilst the applicant confirmed that some of the information was correct, she informed the Tribunal that the claim to be a Falun Gong practitioner was incorrect and that she had never participated in Falun Gong. The applicant also gave evidence that she attended the political protest in Hong Kong with her father, rather than it being her parents who attended the protest as claimed in her application. The Tribunal asked the applicant a series of questions about the political protest in 2010 and the involvement of her family. In summary, the applicant gave the following oral evidence: a.[In] January 2010, the applicant and her father participated in an anti-Chinese protest in Hong Kong. The applicant recalled that there were more than 10,000 people at the protest, and the applicant and her father camped out over night with other protesters. The applicant held a placard and joined in chants against the Chinese government. The applicant recalled that her placard called for [democracy], and [elections for] the people of Hong Kong, not the Chinese government. The applicant confirmed that her mother was not involved in the protest movement. b.Following the protests, the applicant and her father were harassed by unknown people. The applicant recalled receiving many telephone calls and letters. Some of the letters she received had photos of her in attendance at the protest. Those letters came with a warning that she should cease her activities. c.The applicant also received regular phone calls, occasionally in the middle of the night. On some occasions when she would receive calls, the person at the end of the phone would not speak. The applicant conceded that she cannot know for certain that all of those calls were related to her attendance at the protest, however, she suspects they were as they commenced within a couple of weeks of her participation in the protest. d.The applicant believes that her phone calls were being monitored as she claimed that a conversation she had with a friend about the protest was recorded, and that recording was later sent back to her. The recording again came with a warning not to participate in political activities. Similarly, the applicant claimed that the letters she received came with a warning to cease her activities at threat to her personal safety. e.The applicant’s father was also harassed for his attendance at the protest. Her father was a [vehicle 1] driver and his [vehicle 1] was attacked, including having had the tyres slashed and graffiti written on the [vehicle 1]. The applicant claimed that the graffiti identified her father as being anti-government and served as a threat. The applicant gave evidence that after the harassment her father received, he did not attend any further protest rallies due to his fear of harm. f.The applicant’s father had not been politically active prior to the 2010 protest, however, he had taken an interest in politics, and he would listen to politics on the radio when driving his [vehicle 1]. The applicant claimed that on occasions, this would cause him to have disputes with his passengers and his employer told him to stop any displays of political opinion at work. g.The applicant’s father was eventually terminated from his employment in about 2017 and the applicant believes this was related to the harassment he had received and because he would openly discuss politics. h.The applicant also claimed that her father’s [social media] account was hacked, and money was demanded to release the account. However, the applicant was unclear as to whether this was a continuation of the pattern of harassment or an unrelated scam. i.The applicant’s father passed away from cancer during 2019. The applicant claimed her father continued to be harassed prior to his death, however, the level of harassment decreased over time, particularly as he became more unwell.