1912571 (Refugee)

1912571 (Refugee) [2024] AATA 2994 (26 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1912571
COUNTRY OF REFERENCE:                   China
MEMBER:Hee-Jung Kim
DATE:26 April 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 26 April 2024 at 1:01pm
CATCHWORDS
REFUGEE – protection visa – China – religion – underground Christianity – departed legally using own passport – consented to decision on the papers – insufficient information before the Tribunal – decision under review affirmed

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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 May 2019 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 9 March 2018. On 11 April 2019, the applicant was invited to an interview with a delegate scheduled for 6 May 2019, but the applicant did not attend. He did not contact the Department to explain his non-attendance or to provide any further information in support of his protection visa application. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
On 21 May 2019, the applicant applied for review of the delegate’s decision to the Tribunal and provided a copy of the decision with his application for review.
On 8 April 2024, the Tribunal invited the applicant to appear before it on 29 April 2024 to give evidence and present arguments in relation to the issues under review because it considered that it could not decide the review in the applicant’s favour on the basis of the material before it. On 26 April 2024, the Tribunal received the applicant’s response to the hearing invitation clearly stating that he will not participate in the hearing and that he consents to the Tribunal making a decision on the papers without taking further steps to allow him to appear.
Accordingly, the Tribunal finds that the applicant has consented to the Tribunal deciding the review without him appearing before it, and the Tribunal has proceeded to determine this matter on the evidence before it.
CRITERIA FOR A PROTECTION VISA
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.
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.
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).
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-5LA, which are extracted in the attachment to this decision.
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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the criteria for the grant of a protection visa under s 36(2) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality
The applicant claims to be a citizen of China and provided a copy of the biopage of his Chinese passport issued [in] 2016 to the Department and the Tribunal. The delegate was satisfied of the applicant’s identity and that he is a citizen of China. In the absence of evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of China and that China is his receiving country for the purposes of assessing his claims for protection.
Evidence before the Department
In his protection visa application lodged online, the applicant provided that he was born in [year] in Chengdu, Sichuan province, is Han Chinese and does not have citizenship or a right to enter or reside in any other countries than China. He claimed he married in May 1995 and provided the details of his wife who lives in Chengdu, Sichuan, and contacts via phone and Wechat. He did not provide the details of any other family members. He claimed that he lived at an address in Chengdu from January 1997 to January 2018. He completed up to middle school in Chengdu in June 1988, and he worked in [District 1], Chengdu, as a ‘freelance worker’ from July 1988 to December 2009, as an [Occupation 1] at a [company] from January 2010 to June 2015 and as a [Occupation 2] at [another] company from July 2015 to January 2018. He departed from Chongqing [in] January 2018 to arrive in Australia on a visitor visa [in] January 2018.
In relation to his reasons for claiming protection in Australia, he provided the following information in his visa application:
·He is a devout underground Christian. Before believing in underground Christianity, he had very poor health and his parents took him to go see many doctors but the doctors could not find the reason because his disease was very rare. He became depressed for a long time. He came to know underground Christianity through a friend and joined the community. His health problem was cured gradually. Through the Lord’s teachings, he felt happy, made many friends and he felt so lucky to become a Christian. However, there is no religious freedom in China, the Chinese Communist Party combats all underground religious belief and many of his church friends were caught during the underground gathering. They were cruelly tortured and insulted in the detention centre. The police wanted to arrest the applicant because they knew he was a devout underground Christian. They continuously came to his home and harassed his family. For his safety, he escaped China and came to Australia. In Australia, he feels the freedom of religious belief and he can believe in Jesus Christ without any restraints. He can give everything to the Lord.
·He did not experience any harm in China.
·He did not move or try to move to another part of China to seek safety because China is a one-party dictatorship which forbids the existence of underground Christianity and no matter where he goes he will be arrested by the government.
·If he returns to China, he will be harmed by the government just like the other underground Christians. He is regarded as heretic by the government and the police will arrest and insult him, force him to give up his belief and torture him cruelly in prison.
·The local government will not protect him because China is a one-party dictatorship requiring total obedience. The entire country is the same and there is no freedom of religious belief in whole of China. As an underground Christian, he cannot survive in China.
Delegate’s decision
The delegate accepted for the purposes of their assessment that the applicant is a Christian but noted that he had not claimed to be a church leader or to have proselytised, and that by his own admission he was able to exit China legally with his own passport and travel to Australia. The delegate considered the country information in the DFAT Country Information Report: People’s Republic of China (21 December 2017) including that there are a number of state-sanctioned churches under the umbrella of the Three-Self Patriotic Movement and the Chinese Catholic Patriotic Association throughout China where Christians are able to attend and practice their religion; church leaders, those who proselytise and unregistered church member who engage in human rights activism, come under greater scrutiny of the Chinese government; and the Chinese government maintains a sophisticated, centralised and comprehensive system of border controls that prevents persons of interest departing the country. Based on the country information, the delegate found the applicant’s ability to depart China indicated that the applicant is not wanted by the Chinese authorities because he is a Christian or for any other reason. While accepting that the applicant has a low profile in China as a Christian, the delegate found that there was no information to indicate that the applicant would not be able to continue practising his religious belief should he wish to do so by attending one of the state-sanctioned churches in China. Therefore, having considered the applicant’s claims and the country information, the delegate was not satisfied that the applicant will face a real chance of serious harm or a real risk of significant harm for his claimed reasons if he returns to China.
Evidence before the Tribunal
Since lodging his application for review, the applicant has corresponded with the Tribunal to request a Medicare letter and to update his contact detail on 28 July 2020 and to provide his signed response to the hearing invitation dated 25 April 2024. None of these correspondences include any further details in relation to his claims for protection and the applicant has not provided any additional evidence to the Tribunal in support of his claims.
Reasons and findings
It is the responsibility of an applicant for a protection visa to specify all particulars of his or her claim to be owed protection and to provide sufficient evidence to establish the claim: s 5AAA(2) of the Act. The Tribunal does not have any responsibility or obligation to specify or assist in specifying any particulars of the applicant’s claim, or to establish or assist in establishing the claim: s 5AAA(4).
The Tribunal has reviewed all of the material before it. The limited evidence which consisted of some information about his background and the general written claims in the protection visa application and a copy of his passport biopage, lacks specific details to satisfy the Tribunal of the applicant’s claims. He did not specify his denomination of Christianity, whether he is Protestant or Catholic, or whether his family in China are also Christians. He also hasn’t explained with fuller details about his poor health from a rare disease and how it was cured by believing in underground Christianity and joining the Christian community. His written protection claims do not provide any timeline of the claimed events including when and how he became a Christian, when his church friends were arrested, tortured and detained, and when the police wanted to arrest him, came to his home and harassed his family. He has not provided any details about his underground church he claims to have been a member of, including the identity of the friend who introduced him to the underground Christian gathering, the location of the church or where the gatherings were held, how often they gathered, who was the leader or the pastor and what kinds of activities the members engaged in.
He has not explained how the police knew of his involvement in underground Christianity and wanted to arrest him, and how he escaped from China. He only provided one address in China which he claimed to have lived from Jan 1997 until his departure and is also the same contact address for his wife, but he has not explained whether the police or the Chinese authorities are continuing to visit this home to harass his wife.
Apart from his vague claim that he is a ‘devout underground Christian’, made many friends, felt happy and the Lord has taught him a lot, he has not explained his activities or role at the underground church, his individual faith practice as a Christian and what he has learnt from the Lord. Critically he has not explained why he identifies himself as a devout Christian and why Christianity is important to him. Further, despite claiming that he can now believe in Jesus Christ without any restraints and give everything to the Lord in Australia, he has not provided any updated information about his faith practice in Australia including for example, evidence of church attendance in Australia.
Because the applicant expressly elected not to attend a hearing before the Tribunal to avail himself of the opportunity to provide more detailed oral evidence about his claims, the Tribunal has been unable to explore its concerns about the applicant’s written evidence. In this regard, the hearing invitation clearly stated that the Tribunal could not decide the review in the applicant’s favour on the material before it, but the applicant still chose not to attend the hearing and also has not provided any further evidence.
The Tribunal is prepared to accept the applicant’s biographical background summarised at [14], including that he was born in [year] in Chengdu, Sichuan, he married in 1995 and his wife lives in Chengdu, his education and employment history, his residential history and his travel to Australia.
Although the delegate accepted that the applicant is a Christian with a low profile as a Christian in China, the Tribunal is not satisfied from its assessment of the available material consisting of the very general claims lacking in important personal details, that the applicant is a Christian as claimed or that he belonged to any church in China to have a low profile as a Christian. As set out above, the applicant has not provided any meaningful details about the underground church he claimed to have belonged to in China including the location and the denomination, nor has he explained with convincing personal details about his acceptance of Christianity as his religion in China and his faith practice in China. The applicant did not attend the Departmental interview to explain his circumstances and provide more details about his claims, and he elected not to attend the hearing for the Tribunal to explore the concerns regarding his evidence. There is insufficient information for the Tribunal to be satisfied of the applicant’s claimed reasons for leaving China and fear of returning to China. Accordingly, having regard to the available information, the Tribunal does not accept that the applicant was or is a Christian, belonged to an underground Christian church in China or that he was or is of interest to the police or the Chinese government for his religion. It follows that the Tribunal does not accept that the police wanted to arrest the applicant because he was a devout underground Christian and they came to his home and harassed his family.
As the Tribunal rejects the applicant’s claims about the events in China and his claim to be a Christian, it does not accept that he escaped China for safety in relation to his religion or the lack of freedom of religion in China. There is no evidence before the Tribunal to indicate that the applicant has engaged in Christian practices or activities in Australia and therefore the Tribunal does not accept that the applicant has practised Christianity in Australia. Accordingly, the Tribunal does not accept that the applicant will be harmed in any way including being arrested, insulted, tortured or detained in prison by the police or any other Chinese authorities, for his claimed reasons relating to his Christian religion and/or practice if he returns to China.
For the reasons set out above and having considered all of the material before the Tribunal and the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that the applicant faces a real chance of serious harm on return to China for his claimed reasons or for any other reason in s 5J(1)(a), now or in the reasonably foreseeable future. Therefore, the Tribunal is not satisfied the applicant has a well-founded fear of persecution in China, and the applicant does not meet the definition of refugee in s 5H(1). The Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligation under s 36(2)(a).
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 has found that the applicant will not be harmed for any reasons upon return to China. For the same reasons set out above, the Tribunal is not satisfied that there is a real risk that the applicant will be harmed upon return to China. Therefore, 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 he will suffer significant harm. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Hee-Jung Kim
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.
…

[2024] AATA 2994

26 April 2024

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Immigration

Statutory Interpretation

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