2007100 (Refugee) - [2022] AATA 4391

2007100 (Refugee) [2022] AATA 4391 (16 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Stanley Chan (MARN: 0430097)
CASE NUMBER:  2007100
COUNTRY OF REFERENCE:                   China
MEMBER:Jason Pennell
DATE:16 September 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 16 September 2022 at 12.50pm
CATCHWORDS
REFUGEE – protection visa – China – religion – particular social group – Falun Gong – distributing materials in Chinatown – picketing the Chinese Consulate – credibility assessment – delay in seeking protection – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5L, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Wang v MIMA (2000) 105 FCR 548
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

1.This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 April 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2.The applicant who claims to be a citizen of China applied for the visa on 8 July 2018. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia owes protection obligations.
3.The applicant appeared before the Tribunal by MS Teams on 10 August 2022 and in person on 24 August 2022 to give evidence and present arguments. The Tribunal initially exercised its discretion to hold the hearing by MS Teams, determining it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. In doing so the Tribunal had regard to its objective of providing a mechanism of review that is fair, just, economical, and quick, and in the interests of avoiding any delay in the matter. However, due to the number of witnesses ultimately called by the applicant a further in person hearing was conducted. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
4.The Tribunal received witness statements in support of the applicant from [Ms A], [Ms B], [Ms C], [Mr D], [Mr E] and [Ms F] (‘the witnesses”). The witnesses appeared before the Tribunal for the purposes of giving evidence and making submissions in support of the applicant.
5.The hearings conducted on 10 August 2022 and 24 August 2022 were conducted with the assistance of an interpreter in the Mandarin and English languages.
6.The applicant was represented in relation to the review.

Criteria for a protection visa

7.The criteria for a protection visa are set out in s 36…

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.

Continue reading 2007100 (Refugee)

Details

AGLC: 2007100 (Refugee) [2022] AATA 4391
Case: [2022] AATA 4391
Decision Date: 16 September 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application for a protection visa by a citizen of China. The applicant claimed to fear persecution due to their adherence to Falun Gong and their activities in Australia, which included distributing Falun Gong materials and picketing the Chinese Consulate. The AAT was required to assess the applicant's credibility and determine whether they would be a person to whom Australia had protection obligations under the *Migration Act 1958* (Cth).

The central legal issues before the Tribunal were whether the applicant's fear of persecution was well-founded, and if so, whether this persecution was on account of their membership in a particular social group, namely adherents of Falun Gong. The Tribunal also had to consider the significance of any delay in the applicant seeking protection in Australia and how this might impact their credibility.

The Tribunal's reasoning focused on a detailed assessment of the applicant's evidence, including their account of past events in China and their activities in Australia. It applied the principles of international refugee law, particularly the definition of a refugee and the concept of a "particular social group" as interpreted by Australian courts. The Tribunal found that the applicant's delay in seeking protection and inconsistencies in their evidence raised significant credibility concerns. Consequently, the Tribunal remitted the decision to the AAT for redetermination.

Orders