1915899 (Refugee)

[2021] AATA 2926

1915899 (Refugee) [2021] AATA 2926 (20 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1915899

COUNTRY OF REFERENCE:                   China

MEMBER:Mr S Norman

DATE:20 July 2021

PLACE OF DECISION:  Sydney

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

Statement made on 20 July 2021 at 1:00pm 

CATCHWORDS
REFUGEE – protection visa – China – religion – underground Christian – no response to tribunal communication – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 36, 65, 426A, 499
Migration Regulations 1994, 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 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 7 June 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal. The applicant who claims to be a citizen of China, applied for the visa on 20 June 2018.  

   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 (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 10 June 2021 (dispatched by email), the Tribunal advised the applicant it had considered all the material before it relating to his application, but it was unable to make a favourable decision on that information alone.

6. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 20 July 2021. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. The Tribunal also sent two SMS hearing reminder texts to the applicant shortly prior to the hearing (the first of which was noted as not delivered at the time of this decision). No response was received.  

7. As the hearing was to be conducted during a COVID-19 lockdown, the Tribunal also attempted to contact the applicant to proceed with a hearing by video conferencing (assuming he had access to the necessary technology); or via telephone.  Again, no response was received.

8. The Tribunal made multiple unsuccessful attempts to contact the applicant on the day of the scheduled hearing. The Tribunal also notes the applicant did not attend the Department interview which had been scheduled for 31 May 2019.

9. Therefore, and in these circumstances, 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:

10. The applicant said he had completed a General English language course in Australia.[1] In his PV application, the applicant also said:[2]

    ·     He is a devout underground Christian

    ·     There was no religious freedom in China and the Communist party combats underground religious beliefs

    ·     Many of his friends from Church had been caught and cruelly tortured in detention. The police wanted to arrest the applicant as well as they knew he was a devout underground Christian, and they had continually gone to his home and harassed his family

    ·     The applicant subsequently travelled to Australia for his own safety. In Australia, he feels the freedom of religious belief

    ·     The applicant feared that if he was returned to China, he would be arrested and insulted. He knows that China is a one-party dictatorship and forbids the existence of underground churches. He would be considered a heretic. He also said he could not safely relocate within China

    Assessing the applicant’s claims:

    [1] PDF – p.23.

    [2] PDF – from p.24.

11. The Tribunal has seen a photocopy of the applicant’s passport on the Department file and I accept he is a citizen of China, and that China is the applicant’s 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). That said, the applicant did not provide sufficient detail to satisfy the Tribunal (for instance) that he was a Christian, that he had engaged in the practise of Christianity in China or Australia, that he was imputed as a Christian, and/or why given his claims, he was able to lawfully depart China on a passport in his own name, if he was wanted by the Chinese police.

12. 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). The Tribunal acknowledges this 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.

13. That said, 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 he 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