1836433 (Refugee) [2024] AATA 921 (14 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1836433
COUNTRY OF REFERENCE: China
MEMBER:R Guemy
DATE:14 February 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 14 February 2024 at 10:08am
CATCHWORDS
REFUGEE – protection visa – China – religion – Christian – Catholic – underground church – threats of detention – physical assault – family violence – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2CASES
CHB16 v MIBP [2019] FCA 1089
CSV15 v MIBP [2018] FCA 699Any 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
The applicant, [an age]-year old female and citizen of China born in Fujian province, applied for review of a decision made by a delegate of the Minister for Home Affairs on 8 November 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant entered Australia [in] September 2017. She applied for a protection visa on 3 November 2017.
The delegate refused to grant the visa on the basis that the applicant’s written claims and evidence did not provide a sufficient basis to be satisfied that she was a victim of persecution for her religious beliefs or that she would face harm of any kind for such reasons on return to China. The delegate found that the applicant’s employment history meant that she had a means to subsist if she returned to China and that her ability to leave China in September 2017 indicated that she was not of interest to Chinese authorities because country information indicated that if she was then she would have had difficulties doing so.
CLAIMS AND EVIDENCE
Evidence given to the Department
The applicant provided a copy of her passport issued by the People’s Republic of China in Shaanxi.
In her protection visa application the applicant claimed that:
i.she was persecuted by the Chinese government because she believed in underground Christianity
ii.when she was a child her mother was an underground Christian and told her that the lord could help them and this led the applicant to believe in underground Christianity, which helped improve her body’s conditions;
iii.police came to her home to force the applicant and her mother to give up their belief and beat them because they refused to do so;
iv.she wouldn’t be able to relocate to another area in China because the situation was the same in all of China;
v.state protection wasn’t available from authorities because the government in China was corrupt and the police there colluded with government…
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- AGLC
- 1836433 (Refugee) [2024] AATA 921
- Case
- [2024] AATA 921
- Decision Date
CaseChat Overview and Summary
The Tribunal was required to determine whether the applicant met the criteria for a protection visa, specifically whether she was a refugee within the meaning of section 5H of the Act, or whether she faced a real risk of significant harm under section 36(2)(aa) of the Act. This involved assessing the applicant's claims of persecution due to her adherence to underground Christianity, including alleged past mistreatment by police and threats of detention, as well as claims of family violence.
The Tribunal considered the applicant's written claims and oral evidence, noting inconsistencies between the two. While accepting some aspects of her account regarding difficulties related to attending underground church meetings and experiencing sibling abuse, the Tribunal found that key claims, such as her mother writing a public letter or the applicant and her mother being arrested and detained, were not substantiated and did not occur. The Tribunal also considered the applicant's employment history and ability to leave China as factors indicating she was not of significant interest to Chinese authorities. Applying the principles of section 5J of the Act regarding well-founded fear of persecution, and considering the country information available, the Tribunal concluded that the applicant had not established a well-founded fear of persecution or a real risk of significant harm.
Consequently, the Tribunal affirmed the delegate's decision not to grant the applicant a protection visa.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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 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 The Tribunal has considered the copy of the applicant’s passport and her evidence given at hearing on 18 December 2023 and 23 January 2024 and finds that she is a Chinese national. The Tribunal finds that China is the applicant’s country of nationality for the purposes of s 5H of the Act and the receiving country for the purposes of s 36(2)(b) of the Act. The Tribunal has considered the applicant’s written claims, oral evidence given at hearings on 18 December 2023 and 23 January 2024, and the statements she provided after the resumed hearing. The Tribunal accepts the applicant’s account that an alleged lawyer named [Lawyer A] prepared and lodged a protection visa application on her behalf and included claims and evidence in it that were unknown to the applicant. The Tribunal explored these written claims with the applicant during the course of the hearings on 18 December 2023 and 23 January 2023. While the applicant’s oral evidence was broadly consistent with certain aspects of these written claims, such as problems she claimed to have experienced in China from attending underground church meetings, the applicant also told the Tribunal that other past events set out in her written claims such as her mother writing a public letter speaking the truth about underground Christianity, and the applicant being arrested and detained with her mother by Chinese authorities did not occur. The Tribunal finds that neither the applicant nor her mother were ever arrested and detained in China and that her mother never wrote a public letter about underground Christianity.Harm from siblings The Tribunal found the applicant’s oral evidence at hearing about her family history to be credible and accepts that she was subjected to occasional abuse by her siblings while she was growing up and living in China. The Tribunal finds that this was due to conflict between her biological father and her siblings, particularly her half-brother who occasionally physically clashed with the applicant’s father. Although the Tribunal accepts that the relationship between her father and her half-brother was fraught, it does not accept that the applicant’s half-brother or any of her other siblings conspired to kill the applicant’s father or otherwise caused his death. The applicant provided no corroborative medical evidence of her father’s cause of death to allow the Tribunal to assess this claim. The Tribunal finds her claim in this respect to be entirely speculative, something that the applicant conceded was the case during the resumed hearing on 23 January 2024.