1830923 (Refugee)

[2022] AATA 523

1830923 (Refugee) [2022] AATA 523 (6 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1830923

COUNTRY OF REFERENCE:                   China

MEMBER:F. Simmons

DATE:6 January 2022

PLACE OF DECISION:  Sydney

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

Statement made on 06 January 2022 at 8:48pm

CATCHWORDS
REFUGEE – protection visa – China – religion – member of underground church – friends detained and tortured – no attendance at departmental interview, response to hearing invitation or appearance at hearing – responsibility to establish claim and provide evidence – legal departure on own passport – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1), 5J(1), 36(2)(a), (aa), 65, 426A, 441A(5)
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155

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 18 October 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).The applicant who claims to be a citizen of China, applied for the visa on 3 October 2017. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was owed protection obligations by Australia.   

2. On 17 December 2021 the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing at 8:30am on 6 January 2022. The invitation stated that if he did not attend the hearing, the Tribunal may make a decision on the case without further notice.

3. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing and nor did he contact the Tribunal to explain his failure to appear or request a postponement of the hearing. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s.441A(5), that two separate SMS reminders were also sent to the last phone number provided in connection with the review and three attempts were made to contact him on this number at the time hearing was scheduled.   In these circumstances, 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.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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.

8. 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

9. 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

   Issue in review

10. The issue in this review is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country of China, there is a real risk he will suffer significant harm.

    Application to the Department

11. The applicant was born on [Date]. He arrived in Australia on 17 August 1980. The written statement that accompanied his protection visa application stated:

    I AM A DEVOUT UNDERGROUND CHRISTIAN. BEFORE BELIEVING IN UNDERGROUND CHRISTIAN, I HAD A VERY POOR HEALTH, OFTEN FAINTED AWAY. MY PARENTS TOOK ME TO GO TO MANY DOCTORS. BUT MANY DOCTORS SAID THEY
    COULD NOT CHECK OUT THE REASON BECAUSE MY DISEASE WAS VERY RARE. I FELT SO SICK AT HEART. I DEPRESSED FOR A LONG TIME. LATER, I KNEW UNDERGROUND CHRISTIAN AND JOINTED IN IT THOUGH A FRIEND. MY FAINT PROBLEM WAS CURED GRADUALLY. THROUGH THE LORD'S TEACHINGS,
    I FELT HAPPY AND MADE MANY FRIENDS. I FELT SO LUCKY TO BECOME A CHRISTIAN. THE JESUS CHRIST TAUGHT ME A LOT. HOWEVER, THERE IS NO FREEDOM OF RELIGIOUS BELIEF. CHINESE COMMUNIST PARTY COMBATS ALL UNDERGROUND RELIGIOUS BELIEF. MANY OF MY CHURCH FRIENDS WERE CAUGHT DURING THE UNDERGROUND GATHERING. THEY WERE CRUELLY TORTURED AND INSULTED IN THE DETENTION CENTRE. THE POLICE WANTED TO ARREST ME BECAUSE THEY KNEW I AM A DEVOUT UNDERGROUND CHRISTIAN.
    FOR MY SAFETY ISSUE, I ESCAPED CHINA TO AUSTRALIA . IN AUSTRALIA, I FEEL THE FREEDOM OF RELIGIOUS BELIEF. I CAN BELIEVE IN JESUS CHRIST WITHOUT ANY RESTRAINS. I CAN GIVE MY EVERYTHING TO THE LOAD. I HOPE THE
    AUSTRALIA CAN HELP ME TO STICK TO MY BELIEF WITHOUT ANY RESTRAINS [errors in original]

12. The applicant claims that the police wanted to arrest him because they knew he was a devout underground Christian. He fears that he will be harmed and forced to give up his beliefs by the Chinese government if he were to return to his country.

13. The delegate invited the applicant to an interview on 18 October 2018 about his protection claims. The applicant did not attend this interview or explain his absence.

14. The delegate was not satisfied that the applicant was a refugee or owed complementary protection visa and refused to grant him the visa.

    Application to the Tribunal

15. The applicant applied to the Tribunal for review of this decision. The applicant filed a copy of the delegate’s decision with the review application. He did not provide any further information in support of his claims.

16. On 22 October 2021 the Tribunal wrote to the applicant by email advising that, due to the COVID-19 pandemic, the Tribunal was proposing to schedule a hearing for him to attend by video using Microsoft Teams. The email stated that if the applicant did not have the appropriate technology or there are other barriers which would prevent him from participating in a hearing scheduled via Microsoft Teams, he should  advise the AAT within 7 days of receiving this email.  The applicant was also advised if he did not respond to this email, the Tribunal would assume he did not have any issues with participating in a hearing scheduled in this manner. The applicant did not respond.

17. On 17 December 2021, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application but was unable to make a favourable decision on that information alone. The applicant was invited to appear before the Tribunal by Microsoft teams, to give evidence and present arguments at a hearing scheduled for 8:30am on 6 January 2022. The applicant also was requested to read and complete an attached 'Response to hearing invitation' form within 7 days of receipt of the letter.

18. The applicant did not respond to the hearing invitation or provide any other information to the Tribunal. The applicant also did not respond the hearing invitation or invitation to attend a test session on Microsoft teams on 20 December 2021.The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing and nor did he contact the Tribunal to explain his failure to appear or request a postponement of the hearing. Three attempts to contact the applicant on the telephone number he provided in connection with the review were unsuccessful.  

19. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s.441A(5). In these circumstances, 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.

    FINDINGS AND REASONS

20. On the evidence before it and in the absence of any evidence to the contrary, the Tribunal accepts the applicant is a citizen of the People’s Republic of China and no other country.

21. The mere fact that a person claims fear of persecution 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 claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[1]

    [1] MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70

22. The information before the Tribunal about the applicant’s claims to be owed protection obligations is scant and lacking in meaningful particulars about the applicant’s practice of Christianity in China, the nature of his religious beliefs and practices in Australia, why he believes he was at risk of arrest in China and how he was able to depart the country in these circumstances,  and why he believes he will be unable to practise his faith if he returns to China. The applicant does not detail which denomination of Christianity he follows and provides little meaningful details (for example, dates and locations) about the underground gatherings he claims that he attended in China. 

23. DFAT reports that China is home to millions of Christians, a significant number of who practise in state-sanctioned churches.[2] However, the information provided by the applicant does not  provide any meaningful detail about when and how he attended underground religious gatherings with friends or what happened to those friends who he claimed were detained and tortured or when this event occurred. Despite claiming he wants to practice his faith without restraint, the applicant has not provided the Tribunal with any information about he practices his religious activity and practice (if any) in Australia. 

    [2]  DFAT Country Information Report: People’s Republic of China,  DFAT, 3 October 2019.

24. Based on the limited information before it, the Tribunal is not satisfied the applicant is of any adverse interest to the authorities. DFAT reports that security monitoring capabilities in China are comprehensive and departing passengers pass through several identity checks. [3] The applicant’s protection visa application indicates that he exited China legally on his own passport and the applicant has not explained how he was able to do this if the authorities wanted to arrest him.

    [3]  DFAT Country Information Report: People’s Republic of China,  DFAT, 3 October 2019.

25. On the limited evidence before it, the Tribunal is not satisfied that the applicant is a Christian. The Tribunal is not satisfied that he has experienced harassment, discrimination, threats of arrest or any other form of harm in the past for reasons related to his religion. The Tribunal is not satisfied that the applicant is now or was in the past of any adverse interest to the Chinese authorities for the reasons claimed or for any other reason. The Tribunal does not accept that he left China because he had experienced religious persecution and/or because he feared experiencing harm in the future. Because the Tribunal is not satisfied the applicant is an underground Christian, the Tribunal cannot be satisfied that he will be forced to give up his faith by the Chinese authorities. It follows that, on the information before it, the Tribunal cannot be satisfied that the applicant faces a real chance of serious harm or significant harm in China from the authorities/police or any other person or group for reasons of his religion, or any religious activity he has undertaken in Australia, now, or in the reasonably foreseeable future.

26. The Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or his actual or imputed political opinion. His fear of persecution is not well-founded as required by s.5J of the Act. Therefore, he is not a refugee within the meaning of s.5H.

27. In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of him being removed from Australia to China, the Tribunal notes that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[4] Having considered the limited evidence before it, and to the findings of fact set out above, the Tribunal also finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to China, there is a real risk that the applicant will suffer significant harm, as set out in s.36(2A), from the Chinese authorities or any other group or individual for reasons related to his religion or for any other reason. Therefore, the applicant does not meet the complementary protection criterion in s.36(2)(aa).

    [4] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].

    CONCLUSION

28. 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).

29. 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).

30. 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

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

    Frances Simmons
    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.

    …