1933906 (Refugee)

[2024] AATA 4033

1933906 (Refugee) [2024] AATA 4033 (10 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1933906

COUNTRY OF REFERENCE:                   China

MEMBER:Paul Millar

DATE:10 October 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 10 October 2024 at 2:01pm

CATCHWORDS

REFUGEE – protection visa – China – religion – Christian – house church – limited church involvement – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 424, 425, 499
Migration Regulations 1994, 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 8 November 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants, who the Tribunal finds to be citizens of China, applied for the visas on 8 November 2017.[1] The delegate refused to grant the visas on the basis that the first named applicant’s evidence was not credible.  The first named applicant is referred to in this decision as “the applicant” and the second named applicant is referred to in this decision as “the applicant’s husband”.

   [1] The Tribunal’s finding is based on copies of the applicants’ Chinese passports on the Department file. 

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. 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.

5. 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

1. 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

1. According to her evidence to the Department, the applicant claimed protection on the following grounds.[2]  The applicant is from Fushun, Liaoning province.  The applicant claimed that she and her husband attended a Protestant home church every Sunday.  The followers at this church met secretly at different venues because local committee members tried to stop them from attending.  The applicant’s son was a Christian and suffered harm in China on that ground.  He went to live in [Country 1].  Based on those experiences, the applicant fears that she and her husband would not be able to freely practise their religion in China.  In addition, the applicant and her husband operated a store from March 1998.  In more recent years, profits from that business were very small due to a government bureau creating difficulties for them and competition from other businesses.  For this reason, they sold the business in 2017 before coming to Australia.

   [2] The applicant's evidence to the Department comprises the contents of the protection visa application forms; the applicant's written statement lodged with the protection visa application and the applicant's evidence at the interview with the delegate for which there is an audio recording on the Department file and to which the Tribunal has listened.

10.  On 8 November 2019, the delegate refused the application and the applicant applied for a review of that decision.  On 24 September 2024, the Tribunal wrote to the applicant advising that it had considered all the papers relating to her 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 11 October 2024.  By email dated 26 September 2024 the applicant stated “my husband and I will not attend the hearing”. 

11.  In the response to the hearing invitation and the question whether the review applicant would take part in the hearing scheduled for 11 October 2024, the applicant’s answer was “No, I will not participate in the hearing and consent to the Tribunal making a decision on the papers without taking further steps to allow me to appear”.  In that response document, the applicant also stated that her husband would not participate in the hearing.  This matter has therefore been determined on the evidence available to the Tribunal.[3]

[3] See s 425(2)(b).

12.  Pursuant to s 5AAA, it is the responsibility of the applicant to specify all particulars of her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish her claim.  The evidence presented by her to the Department is not sufficiently detailed to enable the Tribunal  to be satisfied that the applicant and her husband face a real chance of persecution in China or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant and her husband being removed from Australia to China, there is a real risk that they will suffer significant harm.

13.  In this respect, the delegate held concerns about the genuineness of the applicant’s claim to be a Christian based on her evidence at the interview with the delegate.  The applicant was unable to give an example of what she used to sing while attending church in China, the applicant stating that when singing the local committee would come and tell the followers to stop the ceremony.  The delegate was concerned that the applicant could not give an example of a song while claiming she attended these gatherings over a period of two years. 

14.  To the delegate, the applicant said that for the two years she had been in Australia, she had not attended a church on many occasions.  She generally attended church in Australia occasionally and when she was not working.  The delegate found the applicant’s knowledge of Christianity to be “scant”.   The applicant named four gospels by Mark, Matthew, Luke and John but could not give any further knowledge of the Bible beyond that. 

15.  The Tribunal regards these concerns expressed by the delegate to be reasonable and in the absence of the opportunity to question the applicant about her claimed religious faith in a hearing, the Tribunal could not be satisfied on the evidence before it that the applicant’s claims to be a Christian are credible.  In addition, in the absence of the opportunity to question the applicant about her claimed religious faith, the Tribunal cannot be satisfied as to the level of commitment, if any, the applicant has to her religion, how she would seek to practise her faith in China and what risk that would pose to her.

16.  This would include the opportunity to question the applicant about her church attendance in Australia up until the present time, given her interview with the delegate was held in 2019.  That would also include the need for the applicant to explain why, as she said to the delegate, that her church attendance up until the time of that interview was only occasional.  The Tribunal would have needed her oral evidence at the hearing as to her church attendance and activities up until the present time to determine the credibility of her claim to be Christian as well as the level of her commitment to that faith if any.  This would be relevant to country information contained in the delegate’s decision to the effect that government sanctioned registered Protestant churches exist in the city in which the applicant lived in China.

17.  In addition, the Tribunal would also have needed to question the applicant as to when she began attending church in China, the applicant claiming to the delegate that she commenced attending church two years before leaving China.  In her written statement lodged with her protection visa application she stated that she commenced attending church in 2017.  The Tribunal would also have needed to be able to question the applicant about her claim that her son was a Christian and left China because of harm suffered.  There is very little evidence before the Tribunal as to her son's religious activities in China, over what period they took place and what difficulties he had as a result.

18.  More generally on the applicant’s credibility, the delegate was concerned that in her application for a visitor visa the applicant provided a document stating that she was an employee in a business at the time she left China to come to Australia.  The delegate found that this was in conflict with her evidence in support of her protection visa application that in fact she sold her business before she left China.  The delegate was also concerned about evidence put forward in her application for a visitor visa to the effect that she and her husband were well off financially.  The delegate found that in conflict with her evidence in support of her protection visa application that in fact she and her husband had to sell the business before leaving China because it was not profitable. 

19.  The Tribunal records that the applicant provided a copy of the decision of the delegate with her review application.[4]  While those issues do not relate to the applicant’s claim about Christianity, those issues do raise concerns about the applicant’s general credibility.  In the absence of receiving evidence from the applicant at a hearing on those issues, the Tribunal cannot be satisfied that the applicant's claims on which her protection application is based are credible.

[4] See s 424A(3)(b) according to which the content of the decision of the delegate is written information submitted by the applicant in relation to the review application.

20.  Overall, the Tribunal cannot be satisfied on the evidence before it that the applicant and her husband and their son are Christians, that they all attended church in China, that they were unable to freely practise their religion and that they would seek to practise Christianity on return to China that would bring them in conflict with Chinese authorities. 

21.  Given the lack of information identified above, without more detail, it is difficult to know what significance can be attached to the applicant’s assertions.  She has not provided any further information to enable the Tribunal to determine if she, her husband or son have suffered persecution in the past; whether her fear of facing persecution in the future is owing to any of the reasons listed under s 5J(1)(a) of the Act or if her fear is well-founded.

22.  In view of the insufficient information and lack of detail contained in the applicant's claims, the Tribunal is not satisfied that she or her husband have been persecuted in the past, or that there is a real chance that they will be persecuted in the reasonably foreseeable future.  The Tribunal is not satisfied that the applicant and her husband have a well-founded fear of persecution in China. Therefore, the Tribunal is not satisfied that the applicant and her husband are persons in respect of whom Australia has protection obligations under s 36(2)(a).

23.  Having concluded that the applicant and her husband do 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 there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant and her husband being removed from Australia to China, there is a real risk that they will suffer significant harm. The Tribunal, therefore, is not satisfied that the applicant and her husband are persons in respect of whom Australia has protection obligations under s 36(2)(aa).

24.  There is no suggestion that the applicant and her husband satisfy 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 and her husband do not satisfy the criterion in s 36(2).

CONCLUSIONS

1. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.

DECISION

26.  The Tribunal affirms the decision not to grant the applicants protection visas.

Paul Millar
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.

1. 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.

2. 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.

3. 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.

…

1. Protection visas – criteria provided for by this Act

…

1. 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.

…