1927365 (Refugee)

1927365 (Refugee) [2022] AATA 1071 (23 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1927365
COUNTRY OF REFERENCE:                   China
MEMBER:Tania Flood
DATE:23 February 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 February 2022 at 4:20pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Christianity – Catholicism – arrested and fined – freely exited China without hindrance – limited awareness of basic tenets of Catholicism – has not attended Catholic church services in Australia – vague and inconsistent evidence – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 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 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 26 September 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 3 July 2019. The delegate refused to grant the visa on the basis that the applicant was not at risk of serious or significant harm on return to China on the basis of her claims of religious persecution stemming from her practice of the Catholic faith.
The applicant was invited to appear before the Tribunal during the Covid-19 pandemic and the Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold a hearing in this manner, 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 telephone. The applicant agreed to appear before the Tribunal by telephone on 23 January 2022. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. There was no indication that the applicant had any difficulty in understanding and responding to the questions being put to her during the telephone hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
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-LA, 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, 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
The issue in this case is whether there is a real chance the applicant will suffer serious harm if she returns to China for reason of her race, religion, nationality, membership of a particular social group or political opinion or alternatively whether there are substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to China there is a real chance that she will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of Claims
According to information contained in her application for a Protection visa, the applicant is a [age]-year-old citizen of China. She was born in Xinhua, Hunan, China. She is married and her husband resides in Zhongshan, Guangdong Sheng, China. From [July] 1990 to [July] 2019, she resided in Zhongshan, Guangdong Sheng, China. She completed studies at [school] from 1993 until 1996. The applicant was employed by [employer] as a [occupation] from 2014 and prior to this she was unemployed.
The applicant arrived in Australia [in] May 2019 as the holder of a FA 600 (Visitor) visa. She lodged an application for a Protection visa on 03 July 2019. On 26 September 2019, a delegate for the Minister refused her application for a Protection visa.
The applicant claims that her family are Catholics and their house is a house church. In January 2018 more than 20 police officers stormed into her house and ordered the church members to stop studying. The police warned them not to worship God together and told them to stop all their religious activities. The police registered the identity cards of the church members and confiscated the cross, the bible, candles and other holy items. She and four other believers were arrested. The police determined that they were the organisers and she was beaten in prison by the police. She was fined [amount] yuan and released. Afterwards her mobile phone and house were monitored and her family was constantly harassed. The police also called and threatened her boss and she was forced to leave work without pay for half a year. The applicant is concerned that if she returns to China she will be monitored, arrested and forced to give up her faith.
Protection visa interview
On 30 August 2019 the applicant was invited by the Department to provide further information about her claims in an interview. The applicant failed to attend the scheduled interview.
Documents submitted to the Department
The applicant provided no supporting documents to the Department.
Documents submitted to the Tribunal
The applicant provided no submissions to the Tribunal during the course of the review.
Tribunal hearing
The applicant’s oral testimony to the Tribunal is summarised as follows:
She was born in Xinhua County, Loudi City, Hunan Province. She is married but estranged from her husband. They have very little contact. She has four children aged [ages] who are living with her mother who is helping to raise them. Previously she lived with her children in Zhongshan in Guangdong Province but following her departure from China in 2019 her mother and children returned to Loudi City in about 2021 because the cost of living is cheaper there and she can more easily support them. Her father also lives in Loudi.
She previously worked in a [factory] in Zhongshan City but ceased that employment about 8 months before she came to Australia. She left that job because she wasn’t making a lot of money and someone referred her to a business opportunity in Hong Kong which she pursued. She said she was misled about that opportunity which turned out to be a [specified] role and she lost a lot of money. She said she spent around a month or more in Hong Kong in around April 2019.
She stated she is a Catholic but that no-one else in the family is Catholic. She said that when she was in Hong Kong she met some friends who took her to church and she saw that everyone there was very friendly. She confirmed that she only commenced an interest in Catholicism in 2019.
She stated that she and her friends from Hong Kong returned to Guangdong and she attended three church gatherings with them in a private dining room of a restaurant. She found the people in the gatherings to be nice and loving. She said that on the last occasion 8 police officers interrupted the gathering of 10 people and they were all arrested. She said they were taken away and locked up in a cold room for two days before their families were asked to pay fines for their release. She said her mother borrowed [amount] yuan to secure her release.
She stated that after her release she stayed in Guangdong and was looking for a job. She said the police came to her rented house and warned her that she would go to jail if she continued with her religious activity. She later went back to Loudi City where the police once again visited her and warned her not to practice Catholicism. She said the townspeople learned about this and she was unable to continue living there. At that point a friend advised her to go to Australia. She confirmed that nothing further happened to her before she departed China.
She stated that she has not attended a church in Australia because she has been too busy working two jobs with long hours. She stated that she would like to attend church but until now she has just prayed at home.
When asked what attracts her to Catholicism she said that everyone who follows the religion is loving, kind-hearted and friendly and they do not lie and cheat people. She said she believes that God will protect her. When asked what the core beliefs of Catholics are she replied to be loving and help other people.
She stated that she previously held a passport which was lost and that the passport she travelled to Australia on was a replacement passport. She said she paid an agent in China a lot of money to get the passport and the visa.
FINDINGS AND REASONS
Country of Reference
The applicant provided a copy of her People’s Republic of China passport to the Department which verifies her claimed identity and nationality. Based on this documentation the Tribunal accepts the applicant is a national of China
Fear of harm on grounds of Catholic religion
Having considered the available evidence, including her oral and written testimony and relevant country information, the Tribunal considers the applicant is not a credible witness and is not satisfied that her evidence in respect of why she left China and why she cannot safely return there can be believed.
Turning first to the applicant’s experiences in China the Tribunal considers she has presented significantly inconsistent evidence in respect of key aspects of her claims. Relevantly, in her written claims she stated that she is from a Catholic family and their house was used as a house church. She claims that she and four other believers, thought to be the organisers of the church gatherings were arrested in January 2018 when 20 police officers stormed the house. She claims she was fined [amount] yuan and that after her release her mobile phone and house were monitored; her family were constantly harassed and she was forced to leave her work without pay for half a year. These claims do not accord with the oral evidence she provided to the Tribunal which is that none of her family are Catholic; she was only introduced to Catholicism by some friends in Hong Kong in 2019 and was one of ten people arrested by a group of 8 police for attending a religious gathering at a restaurant in 2019. In her oral evidence she made no mention of her family being constantly harassed after her release or to losing her job as a result of her arrest and involvement with the Catholic religion. On the contrary she said that she left her employment in China because her wages were insufficient to meet her responsibilities.
When these inconsistencies were discussed with the applicant during the hearing she stated that the person who prepared her application for a Protection visa knew she was arrested in China because of her religion and that she came to Australia for that reason. She said however that she did not know what information was included in the application. She said the person told her they would handle everything for her and there was no need to tell them any of the details. She maintained that her oral account of events is truthful.
The Tribunal has considered her response but notes that despite her claiming not to have been asked by the person who assisted her with her application to provide details in respect of her claimed treatment in China her written claims coincidentally contain some similarities to her oral testimony, namely that she was arrested for attending an unauthorised church gathering and required to pay a fine of [amount] yuan for her release. The Tribunal considers the person preparing the application could only be aware of this information if it was provided by the applicant. The Tribunal considers this indicative of the fact she had either some involvement in the preparation of the written claims or knowledge of the contents of the application made on her behalf. While the Tribunal could accept some minor inconsistencies in the interpretation and translation of her account of events by another person it can see no valid justification for the widely divergent accounts in her oral and written evidence about her religious background and the past harm she encountered in China. The Tribunal considers her inconsistent evidence calls into question the credibility of her claims.
Added to this concern, and as discussed with the applicant during the hearing, it appears unlikely that a person of adverse interest to the Chinese authorities, following a recent arrest and house monitoring by police in two different locations, would be able to freely exit China without hindrance. The Tribunal discussed with the applicant DFAT’s[1] advice in respect of exit and entry procedures, namely that movement in and out of the country is strictly regulated; that the government uses artificial intelligence, facial recognition software and biometric databases to check passenger identities and relies on a series of databases to create and maintain an exit control list making it very difficult for a person of adverse interest to the authorities to exit the country without the government’s knowledge. In response to this information the applicant then raised for the first time that she paid an agent a lot of money to assist her to get a passport and leave China. For all the reasons contained herein the Tribunal is concerned about the applicant’s credibility and considers the late introduction of this claim a further demonstration of her willingness to provide false information in a bid to achieve a migration outcome.
[1] DFAT Country Information Report, China, 22 December 2021
Furthermore, and significantly, the applicant’s oral testimony demonstrated, in the Tribunal’s opinion, a complete lack of knowledge or even limited awareness of any of the basic tenants of Catholicism. During the hearing, all she could offer by way of testimony is that she believes Catholics to be loving, friendly and honest people. Also, despite stating that she fears she will have to give up her faith if she is required to return to China her testimony shows that she has made no attempt whatsoever to engage outwardly with the faith in Australia. While the Tribunal accepts she might have limited free time due to work commitments it is not persuaded that in the years she has lived in Australia she would have had no opportunity at all to seek out a congregation and/or attend a Catholic church service in order to strengthen and maintain her observance of the Catholic faith. The Tribunal considers her inaction in Australia does not support that she holds any genuine belief or interest in the Catholic religion or a desire or commitment to practice the religion. Her somewhat unconvincing testimony that she prayers at home does not, in the Tribunal’s opinion, overcome this concern. The Tribunal considers it likely she fabricated this claim when presented with the view that it didn’t appear she was committed to the Catholic faith.
Having considered all the available evidence the Tribunal considers it likely the applicant left China in a bid to improve her financial situation and better support her family. The Tribunal considers she has fabricated the claims in respect of her religion in order to secure a Protection visa. The Tribunal does not accept the applicant is a Catholic or that she ever attended Catholic gatherings either in Hong Kong or China or that she was arrested or otherwise harmed or threatened or monitored by the police for reason of her religion. The Tribunal is satisfied the applicant has not attended Catholic church services in Australia and it does not accept that she will attend Catholic church services or otherwise engage with the Catholic faith, or any other religion, if she returns to China now or in the reasonably foreseeable future. Therefore, the Tribunal does not accept that there is a real chance or a real risk the applicant will suffer serious or significant harm if she returns to China on the basis of her religion.
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).
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). For the same reasons already articulated above the Tribunal does not accept 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 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.
Tania Flood
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.
…

[2022] AATA 1071

23 February 2022

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction

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