1908084 (Refugee) - [2020] AATA 1722

1908084 (Refugee) [2020] AATA 1722 (25 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1908084
COUNTRY OF REFERENCE:                   China
MEMBER:Catherine Carney-Orsborn
DATE:25 February 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.
Statement made on 25 February 2020 at 11:06am
CATCHWORDS
REFUGEE – protection visa – China – Federal Court remittal – religion – Roman Catholic – father’s death of injury sustained in anti-abortion protest and brother’s arrest – child born to unmarried parents – medical conditions and treatments – credibility – unlawful residence and delay in applying for protection – unco-operative at hearing – church attendance and activity in Australia – basic knowledge and understanding – purpose of strengthening protection claims – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 424
Migration Regulations 1994 (Cth), Schedule 2
Administrative Appeals Tribunal Act 1975 (Cth), s 19D(4)

CASES
MZXRE v MIAC (2009) 176 FCR 552
SZEPZ v MIMA (2006) 159 FCR 291
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 Immigration and Border Protection to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
The first named applicant (the applicant) arrived in Australia [in] May 2007 as the holder of [a] student visa, which was extended on [in] June 2007. The applicant’s visa ceased on [in] March 2009, and the applicant remained in Australia unlawfully.
The third named applicant, who is the applicant’s partner, arrived in Australia [in] January 2008 as the holder of a [student] visa, which was extended [in] February 2008. The third named applicant’s visa ceased [in] December 2008, and the third named applicant remained unlawfully in Australia.
The second named applicant is the daughter of the applicant and third named applicant, and was born in Australia on [Date 1].
The applicants, who claim to be citizens of China, applied to the Department of Home Affairs (the Department) for the Protection visas on 3 September 2012. On 16 July 2013, the delegate refused to grant the visas on the basis that the applicant had little knowledge of Catholicism and the delegate found that there was no genuine reason as to why the applicant could not attend the Chinese Catholic Church, that the applicant did not appear to be of adverse interest to the Chinese authorities as she was able to depart China, and because the applicant was not pregnant at the time and seemed unlikely to be in breach of the one-child policy.
The applicants applied to the Tribunal for review of the decision on 7 August 2013. On…

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 1908084 (Refugee)

Details

AGLC: 1908084 (Refugee) [2020] AATA 1722
Case: [2020] AATA 1722
Decision Date: 25 February 2020

CaseChat Overview and Summary

The applicant sought a protection visa, claiming to be a refugee from China due to his Roman Catholic faith. His claims were based on the death of his father, who sustained injuries during an anti-abortion protest, and the subsequent arrest of his brother. The applicant was born to unmarried parents and also presented medical conditions and treatments as part of his case. The decision under review affirmed the refusal of the protection visa.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa under section 36 of the Migration Act 1958 (Cth) and Schedule 2 of the Migration Regulations 1994 (Cth). This involved determining if the applicant was a non-citizen in respect of whom Australia had protection obligations under the 1951 Convention relating to the Status of Refugees (as amended by the 1967 Protocol) or under the complementary protection criterion. The Tribunal was required to assess the applicant's well-founded fear of persecution for reasons of religion, or alternatively, whether there was a real risk of significant harm if removed from Australia.

The Tribunal considered the applicant's claims in light of the relevant legislative provisions and Ministerial Directions, including those concerning refugee and complementary protection. The assessment involved evaluating the applicant's credibility, his unlawful residence and delay in applying for protection, and his level of cooperation during the hearing. The Tribunal also took into account his church attendance and activities in Australia, and his basic knowledge and understanding of his religion, noting that these were considered in the context of strengthening his protection claims. Country information was also a factor in the Tribunal's determination. Ultimately, the Tribunal concluded that the applicant did not meet the criteria for 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

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention). Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it. 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 a protection 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 the applicant 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’). In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment 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. The Tribunal has before it the Department file, the former Tribunal file, and the current Tribunal file. The Department file contains the application for protection forms, copies of the applicants’ passports, an application for bridging visas with work rights, a written statement setting out the applicant’s claims for protection, and a copy of the delegate’s decision record.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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