1834947 (Refugee)

[2023] AATA 4557

1834947 (Refugee) [2023] AATA 4557 (3 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1834947

COUNTRY OF REFERENCE:                   China

MEMBER:Mr S Norman

DATE:3 November 2023

PLACE OF DECISION:  Sydney

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

Statement made on 03 November 2023 at 3:00pm

CATCHWORDS
REFUGEE – protection visa – China – non-appearance before the Tribunal – religion – underground Christian – insufficient evidence – decision under review affirmed

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

CASES
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 144 ALR 567
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MIEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 21 November 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 citizen of China, applied for the visa on 28 September 2017. The Department delegate’s decision was lodged with the Tribunal.

   CRITERIA FOR A PROTECTION VISA

2. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.

   Mandatory considerations

3. 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

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

5. By hearing invitation letter dated 12 October 2023 (dispatched by email), the Tribunal advised the applicant it had considered all the material before it relating to her application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 3 November 2023. The applicant was advised that if she did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on her case without further notice. The Tribunal also sent two SMS hearing reminder texts to the applicant shortly prior to the hearing.

6. The applicant had failed to attend the Department interview which had been scheduled for 19 November 2018. Neither did the applicant respond to the Tribunal hearing invitation letter, as she was invited to do. The applicant also did not attend the Tribunal at the day and time of the scheduled hearing.

7. In the circumstances, and after considering the evidence, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

   The applicant’s claims:

8. In the Protection visa form, the applicant had claimed:[1]

   ·The applicant is a devout underground Christian

   ·The applicant has underground Cristian friends that were “caught” during a gathering and cruelly tortured in a detention centre

   ·The applicant was wanted by the police because she was an underground Christian and her family were harassed about her location

   ·The applicant escaped PRC to Australia for her safety with her friends help as she will be harmed in PRC for her religious beliefs and is unable to seek protection from the Chinese authorities

   Assessing the applicant’s claims:

   [1] PDF – from p.24.

9. The applicant lodged a photocopy of the bio-data page of her Chinese passport with the Department (expiry date: XXX 2026[2]). Based on this evidence, the Tribunal accepts the applicant is a citizen of China, and that China is his receiving country. However, the mere fact that an applicant claims to fear harm for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason/s claimed. Further, the Tribunal is not required to accept uncritically any and all the allegations made by an applicant (Randhawa v MIEA (1994) 52 FCR 437, p.451).

   [2] PDF – p.32.

10. That being said, the applicant did not provide sufficient detail to satisfy the Tribunal (ie) that she was a genuine Christian, nor that she was perceived or imputed to be a Christian, nor that she would suffer any harm in China for any claimed reason.

11. It remains for the applicant to satisfy the Tribunal that all of the statutory elements for the grant of protection are made out (MIEA v Guo & Anor (1997) 144 ALR 567 p.596); and although the concept of the onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 p.288), the relevant facts of the individual case will have to be supplied by the applicant themselves, in as much detail as is necessary to enable the decision maker to establish the facts. A decision maker is not required to make the applicant’s case for him or her (Prasad v MIEA (1985) 6 FCR 155 pp.169-70; Luu & Anor v Renevier (1989) 91 ALR 39 p.45).

12. Importantly, and in relation to protection claims, it is ‘the responsibility of the non-citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim’.[3] The Tribunal acknowledges that much of the above guidance had been developed for the purposes of considering refugee protection claims, however, I am satisfied it is materially applicable to the assessment of complementary protection claims. 

    [3] See s.5AAA of the Act, ‘Non-citizen’s responsibility in relation to protection claims’.

13. That said, based on the claims she has provided, the Tribunal is not satisfied all the statutory elements for the grant of protection are made out. Accordingly, I do not accept the applicant has a well-founded fear of persecution for a reason prescribed in the Act; or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that she will suffer significant harm.

14. Neither is there any issue, squarely raised by the evidence though not articulated, that has satisfied the Tribunal the applicant has a real chance of suffering serious or significant harm in China.  

    Finding:

15. For the reasons given above, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a). Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal considered the alternative criterion in s.36(2)(aa). However, and for the same reasons, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

16. 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

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

    Mr S Norman
    Member