1901299 (Refugee)

[2022] AATA 1309

1901299 (Refugee) [2022] AATA 1309 (14 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1901299

COUNTRY OF REFERENCE:                   China

MEMBER:Mara Moustafine

DATE:14 March 2022

PLACE OF DECISION:  Sydney

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

Statement made on 14 March 2022 at 6:28pm

CATCHWORDS
REFUGEE – protection visa – China – religion – member of underground Catholic church – credibility – intermittent, low-level attendance and no harm – decision under review affirmed

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

CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
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 11 January 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a citizen of China and is [Age] years old. She first arrived in Australia [in] December 2016 as a holder of a multiple entry Visitor visa. She departed Australia [in] January 2017 and returned [in] March 2017 as a holder of a Visitor visa valid until 7 June 2017. She applied for a Protection visa on 31 May 2017.

   Evidence before the Department

3. According to her Protection visa application form, the applicant was born on [Date] in Zhejiang, China, where she lived until she first left for Australia in December 2016. She completed Middle School in Hangzhou in [Year]a nd was variously employed as [an Occupation] in [a Workplace 1], a self-employed [Product] seller and a housewife. She reads, writes and speaks Chinese. She identified her religion as Catholic, occupation as unemployed and stated that she divorced in December 2016 (certificate provided). She has a [Age] year old son and a sister and brother in Hangzhou. She stated that she left China legally from Xiamen airport [in] March 2017 using her own passport issued [in] 2016, a copy of the biodata pages of which she submitted with her application. She said she returned to China between [January] and [March] 2017 to ‘find out about political circumstances for the current religious persecution were still going on with Catholic’.

4. In summary, the applicant’s protection claims, as set out in her agent’s covering letter, submitted with the application, were as follows:

   ·     The applicant is a devout Catholic and is in fear for her religious freedom and persecution because her church, an underground Catholic church is not recognised by the Chinese government, which sees this faith as a threat to its current policies. They are raiding underground Catholic churches for non-conforming at an alarming rate and removing all signs of the Catholic faith.

   ·     The Chinese government does recognise Catholic churches if they are registered and sanctioned organisations that align their teaching of the bible with the government’s stance. Those churches are controlled by location and face censorship of religious materials. This is not religious freedom but a persecution of the right to worship in peace and freedom to follow the true faith of the Church.

   ·     The applicant’s fears have heightened since she divorced her husband as he has reverted his religion back to Buddhism to avoid the issues, leaving her alone to face the government’s persecution of her faith.

   ·     Since first arriving in Australia, the applicant has returned to China once to see how her son was coping with this situation. He had reverted to Buddhism to avoid the issues.

   ·     In Australia, she has found solace in her religion and the freedom to practice her faith in the open without fear of prejudice or persecution by a government. She wishes to remain here, safe from those that want to force their views on her and imprison the priest to close the church down.

5. The applicant failed to attend her scheduled interview with the Department on 10 January 2019.

6. On 11 January 2019 the delegate refused to grant the visa as he was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under either the refugee or complementary protection criterion.

   Evidence before the Tribunal

7. On 20 January 2019, the applicant applied to the Tribunal for a review of the Department’s decision, a copy of which she provided for the purposes of the review.

8. The applicant appeared before the Tribunal on 9 March 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

9. The Tribunal exercised its discretion to hold the hearing by teleconference. The hearing was scheduled during the COVID-19 pandemic when the Tribunal was not conducting in person hearings and its offices were closed to the public. The Tribunal determined it was reasonable to hold a hearing by teleconference via the secure MS Teams platform, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not to be conducted by teleconference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

10. At the beginning of the hearing, the applicant confirmed that all the evidence she had provided to the Department was true and correct and that she did not wish to change or add anything.

11. CONSIDERATION OF CLAIMS AND EVIDENCE

    Relevant Law

12. 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.

13. 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.

14. 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).

15. 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.

16. 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

17. 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.

    Credibility

18. 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. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

    Analysis, Findings and Reasons

19. The issues that arise on review are whether the applicant is a person in respect of whom Australia has protection obligations under the refugee criterion or the complementary protection criterion. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

20. Asked if she had experienced harm in China, the applicant said ‘yes’ but did not provide details as to the circumstances and timing, saying only that it was about religion and that she ‘stopped attending’. She repeated several times that it was a long time ago and that due to her age and memory she could not remember what happened and had just let it go. Asked to elaborate, the applicant said she was introduced by friends to join some activities or gatherings but did not remember what they were. Asked what took place at the gatherings, she said they were told ‘this and that’, that there were a lot of people and she could not hear. She said that as ‘it did not feel right’ for her, she only attended one gathering. Even though the friends who introduced her invited her to attend again and started threatening her, she refused.

21. Asked about her religion, the applicant said she joined the Catholic church in China but did not remember when. She said she never had problems attending church in China and would go when she had time. She also attended church in Australia when she had time, though she was unable to say which one but that she knew how to get there by train.

22. The Tribunal notes that in her evidence at hearing, the applicant made no suggestion that she feared for her religious freedom or persecution in China because of her involvement in an underground Catholic church, as suggested by her adviser in the covering letter submitted with her Protection visa application. On the contrary, the applicant told the Tribunal that she never had problems attending her Catholic church in China and only attended a ‘gathering’ on one occasion because ‘it did not feel right’ to her.

23. The applicant confirmed that she had never been in trouble with the police in China, had never been involved in politics or criticised the government. The Tribunal notes her evidence in her Protection visa application that she departed China legally on two occasions, which indicates she is not of interest to the Chinese authorities.

24. Asked why she was afraid to return to China now, the applicant said she really liked the past few years she had spent in Australia and thought the Australia government treated people well. She had even got a subsidy during the pandemic and did not want to go back to China. As for what might happen to her if she returned, the applicant said she did not want to think about it but just wanted to stay in Australia. Asked if she feared harm if she returned to China, she repeated that she did not want to think about it but that she did not fear harm from anyone in China. 

25. In a discussion of her migration history, the applicant told the Tribunal at hearing that she first came to Australia on a Visitor visa in December 2016 because she heard that the Australia government was good and returned home after a month. She did not have family or friends in Australia and just came for a visit. She came back again in March 2017 because she really liked Australia and wanted to stay. She applied for a Protection visa because she needed to work and this visa allowed her to do so. Since then she had been working in a [Workplace 2].

26. By her own evidence at hearing, the applicant did not come to Australia because of any harm she may have suffered in China. Nor did she apply for a Protection visa because she is in fear of harm from anyone in China should she return there. Rather she has applied for a Protection visa in order to be able to work in Australia and now wishes to remain here because she likes the country. As discussed with the applicant at hearing, this is not the purpose of a Protection visa and the Tribunal must assess her claims against the criteria for a Protection visa, which were outlined to her at hearing.  

27. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence before it, the Tribunal is not satisfied that there is a real chance that on return to China the applicant will suffer serious harm amounting to persecution for reasons of her religion or any of the other reasons set out in s.5J(1)(a) of the Act.  Further, the Tribunal is not satisfied 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 would suffer significant harm, which includes arbitrary deprivation of life, the death penalty, torture or cruel or inhuman treatment or punishment, or degrading treatment or punishment.

    CONCLUSIONS

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.

    Mara Moustafine
    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.

    …