1933110 (Refugee) - [2023] AATA 4195

1933110 (Refugee) [2023] AATA 4195 (6 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Sophie Xi Wang (MARN: 1278708)
CASE NUMBER:  1933110
COUNTRY OF REFERENCE:                   China
MEMBER:Catherine Carney-Orsborn
DATE:6 September 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 06 September 2023 at 11:32am
CATCHWORDS
MIGRATION – protection visa – China – Federal Circuit Court remittal – religion – underground Roman Catholic – limited attendance when young – mother and uncle arrested – delay in applying for protection and period as unlawful non-citizen – attendance and activities in Australia to enhance protection claims, and limited supporting evidence – no leadership role – two children, one now Australian citizen – claim on family planning law ground withdrawn – passport and multiple departures and returns without difficulty – country information – official toleration – recent agreement between the Vatican and Chinese authorities – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
SZEPZ v MIMA (2006) 159 FCR 291
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection (the Department) on 6 June 2016 to refuse to grant the applicants Protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of China, applied for the visas on 18 May 2016. The delegate refused to grant the visas on the basis that the applicants were not persons in respect of whom Australia owes protection obligations.
The second and third named applicants did not present claims of their own to the Department. They rely on the protection claims of the first named applicant (the applicant).
On 1 July 2016, the applicant applied to the Tribunal for a review of the delegate’s refusal decision. A previous Tribunal – constituted differently – held a hearing on 8 February 2019. On 11 February 2019, the First Tribunal affirmed the refusal decision in Tribunal case 1609865.
On 11 March 2019, the applicant commenced judicial review proceedings against the First Tribunal’s decision in SYG570/2019. On 6 November 2019, the Federal Circuit Court of Australia remitted the matter by consent to the Tribunal for determination according to law. The Minister consented that the First Tribunal had fallen into jurisdictional error by stating in the decision record that the applicant had 'proselytised' in Australia, as that term was understood by the First Tribunal, where the applicant did not make this claim, and then using its rejection of that claim as the basis or part of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: 1933110 (Refugee) [2023] AATA 4195
Case: [2023] AATA 4195
Decision Date: 6 September 2023

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a Chinese national, who identified as Catholic and claimed he would face persecution in China due to his involvement with an underground church. The applicant also initially raised concerns about potential persecution for breaching family planning laws, though this ground was later withdrawn. The case came before the Tribunal for review after a previous decision by the Department.

The primary legal issue before the Tribunal was whether the applicant was a person in respect of whom Australia owed protection obligations, either under the refugee convention or complementary protection principles. This required an assessment of whether the applicant had substantial grounds for believing that, as a necessary and foreseeable consequence of removal from Australia, he would suffer significant harm. The Tribunal also considered the applicant's migration history, including periods of unlawful status in Australia and multiple departures and returns to China without apparent difficulty.

The Tribunal considered the applicant's claims in light of country information regarding China's approach to religious practice and family planning laws. It noted that while the applicant was baptised and held genuine religious beliefs, the evidence did not establish a real risk of persecution. The Tribunal found that the Chinese authorities were generally tolerant of underground churches, and that the applicant's limited attendance and lack of leadership role did not place him at significant risk. Furthermore, the Tribunal noted that recent agreements between the Vatican and Chinese authorities suggested a more accommodating environment. The applicant's mother's arrest was not considered to have resulted in harm, and the applicant's concerns regarding family planning laws were mitigated by changes in Chinese law and the applicant's own uncertainty about the likelihood of penalties. The Tribunal also took into account the applicant's extended period in Australia, including his unlawful status and subsequent applications for work rights, as well as the birth of his children in Australia.

The Tribunal affirmed the delegate's decision, finding that the applicant had not established that he would suffer significant harm or persecution upon return to China. Consequently, the application for a protection visa was refused.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The present Tribunal file contains copy of the Court orders.Applicant’s background The following information was provided by the applicant in his application form for a Protection visa with the Department dated 8 May 2015. The applicant is from the Fujian region. He identifies with the Catholic faith. He is of the Han ethnicity. He is a fluent speaker, reader, and writer of the Mandarin language. His parents and younger brother reside in China. He married his wife, the second named applicant, on [Date]. They had two children born in Australia, one of them is the third name applicant. The applicant first arrived in Australia holding a Student visa with an expiry date of 15 March 2011. The applicant then was granted with a further Student visa with an expiry date of 28 November 2012. The applicant stated that he departed Australia to China in June 2009 and in November 2009 to visit family. The applicant completed his education in China including a Bachelor degree in the Sichuan province at [University 2] in June 2008. He then completed a Bachelor degree at [University 1] in July 2011.Applicant’s claimd for protection In a written and undated statement of claims, the applicant claimed that he would be persecuted and arrested for participating in underground church gatherings because he did not recognise the Patriotic Church backed by the Chinese Communist Party (CCP). The applicant claimed he would not be able to attend catholic churches that did not follow the Pope’s teachings. The applicant claimed that he would not be allowed to preach the gospel in China like any Catholic in Australia can. That he and his wife would be deprived from their mission and desire to preach the gospel to sinners and ignorant of their faith, that their souls would not go to paradise. That the Gospel Ban issued by the Patriotic Church is the fetters of his faith. The applicant claimed that in 2010, when he returned to China to visit his family, he attended an underground church where he felt very nervous about being caught considering the risks, he was facing by participating in the house church. The applicant claimed that his mother was arrested in 2014 for preaching the gospel and that she was released after his father paid bail. The applicant claimed fearing harm for having breached the family planning laws as he and his wife had two children. He feared he would be forced to pay a fine and forced to undergo and sterilisation operation.Nationality The applicant claims to be a citizen of China. A copy of the applicant’s passport was provided. The applicant is a Chinese citizen. The Tribunal has assessed the applicant’s claims against China as his country of nationality for the purposes of the Convention and his receiving country for the purposes of s 36(2)(aa). The Protection visa interview The applicant attended an interview with the delegate of the Department on 4 March 2016. The applicant and delegate discussed the protection claims submitted by the applicant. A summary of the interview is set out in the delegate’s decision. A summary of it follows.

Evidence

Evidence Before The Court

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 the applicant is a person in respect of whom Australia owes protection obligations. The Tribunal has before it the Department files and the previous and present Tribunal files. The Department file contains a copy of the Protection visa application, photographs of church activities including baptism, two Baptismal remembrance certificates issued on 4 April 2016, copy of [Occupation 1 organisation] occupation assessment for migration purposes for the applicant dated 29 August 2011, certificate of baptism from the Catholic Archdiocese of Sydney dated [in] April 2015 for the applicant and second named applicant, copy of [University 1] letter to the applicant dated 21 July 2011, copy of IELTS test score results for the applicant dated 24 September 2011, copy of NSW birth certificate for applicant’s son (third named applicant), copy of NSW birth certificate for minor [Miss A], applicant’s daughter, copy of applicant’s daughter’s Chinese passport’s biodata page, copy of [the second applicant]’s Chinese passport’s biodata page, copy of the applicant’s Chinese passport’s biodata page, copy of applicant’s statement of claims in Mandarin and English translation of it, copy of Bridging visas grant date 20 May 2015 for all applicants, copy of Bridging visas grant date 22 June 2015 for all applicants, copy of delegate’s decision record dated 6 June 2016, copy of Bridging visas grant date 14 March 2019 for all applicants, application for working rights with Department dated 11 March 2019 for the applicant, and copy of the First Tribunal’s decision. The First Tribunal file contains copy of a letter from [Church] stating applicants attended their church since June 2014, copy of a letter from [Catholic Primary School] dated 4 February 2019 confirming applicant’s daughter's enrolment since [Date], and a copy of the delegate’s decision record. The present Tribunal file contains copy of the Court orders.Applicant’s background The following information was provided by the applicant in his application form for a Protection visa with the Department dated 8 May 2015. The applicant is from the Fujian region. He identifies with the Catholic faith. He is of the Han ethnicity. He is a fluent speaker, reader, and writer of the Mandarin language. His parents and younger brother reside in China. He married his wife, the second named applicant, on [Date]. They had two children born in Australia, one of them is the third name applicant. The applicant first arrived in Australia holding a Student visa with an expiry date of 15 March 2011. The applicant then was granted with a further Student visa with an expiry date of 28 November 2012. The applicant stated that he departed Australia to China in June 2009 and in November 2009 to visit family. The applicant completed his education in China including a Bachelor degree in the Sichuan province at [University 2] in June 2008. He then completed a Bachelor degree at [University 1] in July 2011.Applicant’s claimd for protection

Decision

Reasons for decision

The applicant was asked about any other protection claims. The applicant said that he previously claimed having breached the family planning laws because he and his wife had two children, and that he and his wife would potentially have issues registering their second child in China. The applicant said that he had not register his first child in China. That he and his wife did not have a permit to have more than one child and therefore he was unsure whether they could get a family registration or not. The applicant was concerned about his children not having family registration. The applicant was put information that China had changed its family laws in 2016 and there was more flexibility about registering a second child. The applicant stated that he could not tell whether he would or not be asked to pay a fine for having a second child.The Delegate’s decision The delegate accepted that the applicant was of the Catholic faith and was baptised. That the applicant had knowledge of the Catholic tenets and faith. The delegate did not accept, however, that the applicant would be persecuted for having been involved in the underground church in China. That the applicant would therefore attract the interest of the Chinese authorities. That according to 2015 DFAT country reports and information, the Chinese government was tolerant to underground churches. That the Catholic priests in China had association with the Roman Catholic church and that the Catholic teachings did not differ to the point of causing the applicant to change his fundamental beliefs or faith. That the applicant’s mother did not suffer harm from being arrested as the applicant could not even tell when she was arrested. That the applicant by attending underground church gatherings alone would not be blacklisted and sought by the Chinese authorities.The First Tribunal hearing The applicant attended a hearing on 8 February 2019. The present Tribunal had access to the interview recording. A summary of it follows. The Tribunal explained to the applicant the legal framework and criteria to be met to be considered a person who is owed Australia’s protection obligations. The applicant was informed that the Tribunal had before it his review application, the Department file, copy of the delegate’s decision record, copy of the DFAT report on China and thematic report on Fujian. The Tribunal stated that pre-hearing evidence in the form of daughter’s school enrolment was received. The Tribunal read out the applicant’s written claims to the applicant to gain confirmation that the claims were accurate. The applicant confirmed the claims read out to him were accurate and complete, and that his family were dependent applicants.Applicant’s migration history The applicant confirmed that he first arrived in Australia in July 2008 holding a Student visa, and that he had a couple of Student visa extension with the last expiry date on 28 November 2012. The applicant confirmed that on 28 November 2012 he remained unlawful in Australia until he applied for the Protection visa on 18 May 2015. The applicant confirmed that he returned to China on three separate occasions: June 2009, November 2009, and in December 2010.

Ratio Decidendi

Legal Principle Established

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 the applicant is a person in respect of whom Australia owes protection obligations. The Tribunal has before it the Department files and the previous and present Tribunal files. The Department file contains a copy of the Protection visa application, photographs of church activities including baptism, two Baptismal remembrance certificates issued on 4 April 2016, copy of [Occupation 1 organisation] occupation assessment for migration purposes for the applicant dated 29 August 2011, certificate of baptism from the Catholic Archdiocese of Sydney dated [in] April 2015 for the applicant and second named applicant, copy of [University 1] letter to the applicant dated 21 July 2011, copy of IELTS test score results for the applicant dated 24 September 2011, copy of NSW birth certificate for applicant’s son (third named applicant), copy of NSW birth certificate for minor [Miss A], applicant’s daughter, copy of applicant’s daughter’s Chinese passport’s biodata page, copy of [the second applicant]’s Chinese passport’s biodata page, copy of the applicant’s Chinese passport’s biodata page, copy of applicant’s statement of claims in Mandarin and English translation of it, copy of Bridging visas grant date 20 May 2015 for all applicants, copy of Bridging visas grant date 22 June 2015 for all applicants, copy of delegate’s decision record dated 6 June 2016, copy of Bridging visas grant date 14 March 2019 for all applicants, application for working rights with Department dated 11 March 2019 for the applicant, and copy of the First Tribunal’s decision. The First Tribunal file contains copy of a letter from [Church] stating applicants attended their church since June 2014, copy of a letter from [Catholic Primary School] dated 4 February 2019 confirming applicant’s daughter's enrolment since [Date], and a copy of the delegate’s decision record.