1933723 (Refugee)
[2021] AATA 1664
•4 May 2021
1933723 (Refugee) [2021] AATA 1664 (4 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1933723
COUNTRY OF REFERENCE: China
MEMBER:Rachel Da Costa
DATE:4 May 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 04 May 2021 at 1:42pm
CATCHWORDS
REFUGEE – protection visa – China – Falun Gong – failure to attend Department’s interview – non-appearance before the Tribunal – insufficient evidence to support claims – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2CASES
MIAC v SZQRB [2013] FCAFC 33Any 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 Immigration and Border Protection on 20 July 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of China, applied for the visa on 25 July 2016. The applicant was invited to attend an interview with the Department to discuss his protection visa application on 20 July 2017 however the applicant did not attend and the interview was not rescheduled. On 20 July 2017, 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 7 April 2021 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. On 27 April 2021, the applicant’s representative, who is a legal practitioner, advised the Tribunal that the applicant did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it. The Tribunal reconfirmed the applicant’s instructions in this regard with the representative via telephone on 29 April 2021. This matter has therefore been determined on the evidence available to the Tribunal.
CLAIMS AND EVIDENCE
When making his protection visa application the applicant provided the following information.
He was born in [date] in [Village 1], Luohe city, Henan Province, China. He is a citizen of China and does not have the right to reside in any other country. He speaks, reads and writes Mandarin. He has a father, mother and [sibling] who live in Luohe city. He married [in] June 2008 and his wife lives in China. He completed a Bachelor’s degree at [University 1] in 2003. From 2003 until 2014 he was employed as a Manager at [a business] in Beijing, China. He arrived in Australia [in] March 2014 as a student using his passport issued by the Chinese authorities [in] 2013, a copy of which was provided with his visa application. He lists his occupation in Australia as unemployed.
When making his protection visa application the applicant made the following claims. He came to Australia in 2014 to study. He sometimes went walking in Sydney’s Chinatown and saw some Chinese people distributing Falun Gong materials. He was curious and took some materials home to read. After that he became interested in Falun Gong’s promotion of keeping the body strong and healthy and went to Chinatown to ask those people where he could attend Falun Gong exercises. A person gave him an address next to Central Station and told him a group of Chinese practised there every weekend. He went there to learn to practise Falun Gong since August 2014. After three months he felt his spirit was really enhanced and he has been persistent in practising at least once a week since then.
He participated in a couple of Falun Gong parades in Chinatown in 2015 and 2016 because he agreed with their idea of “Truthfulness, Benevolence and Forbearance.” In July 2016, a fellow Falun Gong practitioner told him that an employee at the Chinese Consulate-General in Sydney was secretly investigating him and asked him to be careful. He knew the applicant was going back to China soon. In China, a lot of Falun Gong practitioners have been detained and tortured by the police and imprisoned. The applicant was scared after he heard it from him. He feared he would be arrested by the police also after he returned to China due to his practise of Falun Gong and be put in prison. He hopes the Australian government can provide him with protection so he will not be persecuted by the Chinese authorities if he goes back to China.
The applicant provided to the Tribunal a copy of the delegate’s decision record. It records the applicant’s migration history as set out above. It confirms that the applicant’s [student visa] ceased on 29 March 2016 and that he was granted a bridging visa on 30 August 2016 in connection with his protection visa application.
The delegate was not satisfied that the applicant had provided sufficient evidence to support his claims that he is a genuine Falun Gong practitioner and that he faces harm of any kind for such a reason, or for any other reason, on return to the People’s Republic of China. The delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations either under the refugee or complementary protection criteria.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
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.
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.
Nationality
The applicant claims to be a citizen of China and provided to the Department a copy of his Chinese passport issued [in] 2013. The delegate was satisfied that the applicant was using his own identity and documents. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of China. The Tribunal finds China is his receiving country for the purpose of assessing his claims for protection. There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any other country for the purposes of the Act.
Does the applicant have a well-founded fear of persecution?
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
As referred to above, the Tribunal formed the preliminary view that there was not sufficient evidence before it to be satisfied that the applicant’s claims are reliable and that he faces harm for reasons relating to his practice of Falun Gong, or for any other reason, if he returns to China now or in the foreseeable future. The Tribunal informed the applicant in the hearing invitation that, on the evidence before it, it was unable to make a favourable decision. For this reason, the Tribunal invited the applicant to a hearing to give him the opportunity to give evidence and present arguments relating to the issues arising in his case. Despite this, the applicant declined his hearing invitation.
Like the delegate, the Tribunal only has the applicant’s written claims before it to consider. As the applicant declined his hearing invitation, the Tribunal has not had an opportunity to test those claims. The Tribunal’s view remains that the applicant’s claims are lacking in significant detail and substance. The applicant’s claims do not provide sufficient detail about the applicant’s interest in, and subsequent practise of, Falun Gong in Australia. The nature of and extent to which the applicant may have been involved in Falun Gong-related activities in Sydney which may have brought him to the attention of an employee in the Chinese Consulate-General is also not clear. It follows that the Tribunal cannot be satisfied in relation to the applicant’s claims.
Accordingly, on the evidence before it, the Tribunal is not satisfied that the applicant developed an interest in Falun Gong while he was studying in Sydney. It does not accept that he began practising Falun Gong exercises and that he has continued to practise at least once a week. It does not accept that he took part in some Falun Gong parades in Chinatown in Sydney in 2015 and 2016. It does not accept that the applicant was being secretly investigated by an employee at the Chinese Consulate-General in Sydney. Nor is it satisfied that the applicant fears being arrested and imprisoned if he returns to China due to his practise of Falun Gong.
Accordingly, the Tribunal cannot be satisfied that there is a real chance of harm to the applicant for reasons related to his practise of Falun Gong, or for any other reason set out in s 5J(1)(a), if he were to return to China now or in the foreseeable future. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, it is not satisfied that the applicant meets the definition of refugee in s 5H(1). As the applicant does not meet the definition in s 5H(1), the Tribunal is not satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant meet the complementary protection criterion?
As the Tribunal has found that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, it has considered whether the applicant meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).
As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion (as per MIAC v SZQRB [2013] FCAFC 33), for the same reasons as those set out above, the Tribunal finds that the applicant does not face a real risk of significant harm. 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. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Conclusion
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). 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.
Rachel Da Costa
MemberATTACHMENT - 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.
…
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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Standing
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Natural Justice
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