1917070 (Refugee)

[2021] AATA 5147

1917070 (Refugee) [2021] AATA 5147 (2 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1917070

COUNTRY OF REFERENCE:                   China

MEMBER:Melissa McAdam

DATE:2 December 2021

PLACE OF DECISION:  Sydney

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

Statement made on 02 December 2021 at 1:17pm

CATCHWORDS

REFUGEE – protection visa – China – religion – Christian – corruption – pollution – economic conditions – did not attend hearing – claims vague and lacking detail – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 426A, 441A, 499
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 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 3 June 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of China, applied for the visa on 1 August 2018.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.

7. 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

8. 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.

   SUMMARY OF CLAIMS AND EVIDENCE

   Protection visa application

9. The applicant is [an age] year old man from China. The following is a summary of the claims and information he provided in his Protection visa application:

   a.He was born and lived in Gaocheng in Hebei Province, China.  He submitted a copy of his Chinese passport. 

   b.He is married with one adult son.  His wife and son are living in China. He completed high school in China. He worked as a farm labourer then a factory worker in China.

   c.He went to Europe as a tourist in [year].

   d.He departed China legally [in] March 2018 and arrived in Australia [the next day] on a Visitor visa.

   e.He is a Christian.  He wishes to come to Australia to freely practise Christianity. In China Christians are oppressed and cannot practice religion openly. Christian churches are considered illegal and Christians live in fear of being prosecuted for their religious beliefs.  The applicant has heard many stories about pastors and their followers being jailed and churches being bulldozed in China.

   f.He hopes to be able to settle in peace in Australia and worship freely and openly. China has a great deal of social problems and the applicant has experienced much harm at the expense of corrupt officials.

   g.In addition to this there is a great deal of pollution in the applicant’s city, with a thick blanket of smog covering the entire town. The applicant does not smoke yet everyday he coughs.

   h.There is no economic opportunity in China

   i.The authorities in China do not care about the lives of ordinary civilians who are looked down upon by the citizens in more prestigious cities, and little help goes to helping them or their family.

   j.The applicant cannot afford the cost of living elsewhere, nor is there anywhere in China where he can be a Christian openly. No job opportunities exist for him in other cities and he cannot afford the cost of relocation.

   k.He thinks that if he keeps practicing his religion at the family churches that they will one day get in trouble. He does not see the Chinese government ever recognising his religion as legitimate. With bad pollution, and no hope for the future he thinks he will only have faith and if that is taken from him as well he will definitely fall into depression. He thinks things will remain the same and life will be bleak and depressing.

   l.The authorities are the ones who are prosecuting illegal religions, of which the Christianity the applicant practices is one.

   Departmental Interview

10. According to the Delegate’s decision record, submitted to the Tribunal by the applicant, the applicant did not attend his scheduled interview.

    Delegate’s Decision

11. The Delegate was unable to be satisfied on the information before her that the applicant had a well-founded fear of persecution in China, or that he was owed complementary protection.

    Information to the Tribunal

    Tribunal Hearing

12. On 3 November 2021 the Tribunal wrote to the applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the applicant to give evidence and present arguments at a hearing by video on 25 November 2021 at 10 am. The invitation stated that if he did not attend the hearing, the Tribunal may make a decision on the case without further notice. The Tribunal also sent the applicant SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

13. On the morning of the scheduled hearing just prior to 10 am, a Tribunal officer twice attempted to telephone the applicant to connect him to the video hearing.  The applicant did not answer the calls. Just after 10 am the Tribunal again attempted to contact the applicant.  This time the applicant answered the call but informed the Tribunal officer he needed a Mandarin interpreter to communicate. The Tribunal officer arranged for the services of a Mandarin interpreter and then called the applicant again with the interpreter standing by.  The applicant did not answer the call.  The Tribunal officer made a further attempt to call the applicant and he again did not answer the call.

14. In the circumstances the Tribunal is satisfied that: the applicant was properly invited to a hearing in accordance with s.441A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. The Tribunal also made several attempts to contact the applicant for his participation in the hearing before and at the time of the scheduled hearing. Despite these efforts the applicant did not participate in the offered hearing. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The applicant submitted a copy of his Chinese passport. On the basis of this document the Tribunal is satisfied he is a citizen of China. The Tribunal assesses the applicant’s claims against China as his country of nationality and receiving country.

16. The applicant claims to fear harm in China as a Christian and because of the pollution, corruption, lack of government support and lack of economic opportunity in China. 

17. The written information before the Tribunal about the applicant’s claimed fears and experiences is very brief and lacking in personal detail.  He has not provided specific information about suffering past instances of harm in China, apart from a cough caused by pollution.

18. The applicant refers vaguely to being a Christian but does not provide details of when, why or how he became Christian or how he practices his Christian religion.  The Tribunal has not had the opportunity to test the genuineness of the applicant’s claims to be Christian.  The Tribunal also has not had the opportunity to hear from the applicant as to whether or not he is currently a Christian and is practicing Christianity or if and how he would wish to practice Christianity in China.  On the very limited information before the Tribunal it is not satisfied that the applicant is a Christian or does, or wishes to, practice Christianity. 

19. The applicant makes a brief reference in his written statement to corruption in China but provides little detail what he means by this or how it has impacted him or may impact him upon return.  Similarly he did not explain in detail what he meant by the government’s lack of concern for its citizens or how this has impacted, or would impact, him. His reference to the lack of economic opportunity appears to be focussed upon the financial difficulties of moving to another part of China.  The applicant provided no explanation as to how the pollution in his home city was connected to any claimed fear of persecution or significant harm in China.

20. On the information before it the Tribunal is not satisfied that the applicant’s written references to pollution, corruption, lack of economic opportunity and lack of government concern give rise to a real chance of serious or significant harm in China.

21. The applicant did not attend the scheduled hearing and has not provided any further information to the Tribunal. The Tribunal therefore has before it only the limited written information from the applicant’s initial Protection visa application.  There remain substantial gaps in this information. The applicant’s lack of engagement with both the Department and the Tribunal indicates the applicant does not view his protection claims with any sense of importance or urgency. 

22. On the information before it the Tribunal does not accept that the applicant is a Christian or practices Christianity or that he would wish to practice Christianity on return to China.  The Tribunal also does not consider that the applicant’s references to other negative aspects in China give rise to a chance or serious or significant harm against the applicant in China.

23. The Tribunal therefore is not satisfied, on the information before it, there is a real chance the applicant will face serious or significant harm in China because of his religion or for any other reason.

24. On the basis of the above findings the Tribunal is not satisfied the applicant has a well-founded fear of persecution in China as defined by s.5J of the Act.  The Tribunal is also not satisfied there is a real risk the applicant will suffer significant harm on return to China.

25. 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) or under s.36(2)(aa).

26. 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

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

    Melissa McAdam
    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.

    …