2013299 (Refugee)

[2021] AATA 576

2013299 (Refugee) [2021] AATA 576 (2 February 2021)

DECISION RECORD

DIVISION:	Migration & Refugee Division
CASE NUMBER:	2013299
COUNTRY OF REFERENCE:	China
MEMBER:	Dr Jason Harkess
DATE:	2 February 2021
PLACE OF DECISION:	Melbourne
DECISION:	The Tribunal affirms the decision not to grant the Applicant a Permanent Protection (Class XA) (Subclass 866) visa

Statement made on 02 February 2021 at 1:03pm

CATCHWORDS

REFUGEE – Protection visa – China – religion – Christian – applicant was not a credible witness – fabricated claims – credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss, 36, 65, 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 dependant.

STATEMENT OF DECISION AND REASONS

INTRODUCTION AND OVERVIEW

Protection Visa Refusal – Application for Review

1. The Applicant is a citizen of China and is [age] years of age. He seeks review of a decision made by a delegate of the Minister for Immigration and Border Protection (‘the Minister’)[1] refusing to grant him a protection visa.

   [1] The Minister for Immigration and Border Protection is now known as the Minister for Home Affairs.

2. The Applicant originally applied for the protection visa on 29 December 2018. The visa was refused on 24 August 2020. The Applicant lodged his review application with the Tribunal on 27 August 2020.

Type of Visa

1. The specific type of visa the Applicant applied for is classified under the Migration Regulations 1994 (Cth) (‘the Regulations’) as a Permanent Protection (Class XA) (Subclass 866) visa.[2] Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of s 65 of the Migration Act 1958 (Cth) (‘the Act’).

   [2] See Migration Regulations 1994 (Cth), Sch 1, cl 1401; Sch 2, cls 866.1 to 866.611.

2. If granted, a Subclass 866 protection visa permits a non-citizen to remain in Australia indefinitely.

Applicable Criteria

1. The criteria for the grant of a protection visa are set out in s 36 of the Act and Sch 2 of the Regulations. An applicant must establish that they are a non-citizen in Australia and that they are either:

   (a)a person in respect of whom Australia has protection obligations because the person is a ‘refugee’ (‘the refugee criterion’);[3]

   (b)a person in respect of whom Australia has protection obligations because of other ‘complementary protection’ grounds (‘the complementary protection criterion’);[4] or

   (c)a member of the same family unit of a person who has been granted a protection visa on refugee or complementary protection grounds (‘family member protection criterion’).[5]

   [3] Migration Act 1994 (Cth), s 36(2)(a).

   [4] Migration Act 1994 (Cth), s 36(2)(aa).

   [5] Migration Act 1994 (Cth), s 36(2)(b), (c).

Reasons for Initial Refusal

1. In his original application form lodged with the Department, the Applicant sought a protection visa claiming that he met the refugee criterion or the complementary protection criterion. The delegate was not satisfied that he met either. The Applicant did not claim to meet the family member protection criterion. The delegate therefore refused the visa application.

2. The delegate’s reasons are set out in a decision record. A copy of that record was provided to the Applicant when he was notified of the delegate’s decision. That notification prompted the Applicant to lodge the present review application. The Applicant also provided a copy of the delegate’s decision to the Tribunal following lodgement of the review application.

Issues for Determination by Tribunal

1. The following issues arise for determination by the Tribunal in relation to the present review application:

   (a)whether the Applicant meets the refugee criterion;

   (b)whether the Applicant alternatively meets the complementary protection criterion.

Hearing of Application

1. The Tribunal convened a hearing to consider the merits of the review application on 2 February 2021. The Applicant participated at the hearing before the Tribunal by phone and gave evidence and presented arguments.

2. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages, who also participated at the hearing by phone.

Tribunal’s Determination

1. The Tribunal has concluded that the decision to refuse the Applicant a protection visa ought to be affirmed in this case, for the reasons which are set out below. In reaching its decision, the Tribunal has had regard to:

   (a)the delegate’s decision record;

   (b)the Applicant’s original written visa application;

   (c)the oral evidence and arguments presented at the hearing;

   (d)other relevant documents on the Tribunal and Department files;

   (e)the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs;[6]

   (f)country information assessments relating to China that have been prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes.[7]

   [6] These are mandatory considerations as prescribed by Ministerial Direction No 84, a direction made under s 499 of the Act (‘Direction No 84’).

   [7] These are also mandatory considerations under Direction No 84.

2. The Tribunal notes that not all the evidence and material that has been placed before it has been specifically referred to in the Tribunal’s reasons as set out below. The reasons incorporate reference only to that information that the Tribunal has been found to be materially significant to the determination of the issues in the case.[8]

CONSIDERATION OF APPLICANT’S CASE

[8] The Tribunal notes that it is not required to make explicit reference every relevant piece of information before it because not all relevant considerations will be central or fundamental to every case. See Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271.

Original Protection Visa Application

1. The Applicant was obliged to complete a form when he lodged his protection visa application. The form requested that he provide details about his personal background, his circumstances leading up to his arrival in Australia, and his reasons for applying for a protection visa.

Applicant’s Background

1. In his application form, the Applicant stated that he comes from Henan, Henan, China. He stated that he is a citizen of China by birth. A copy of his passport, which he provided to the Department, corroborated this claim. He further said that he does not hold citizenship of any other country.

2. The Applicant further stated that he was married in 1993. He has one child, a boy, who is now [age] years old. Both his wife and son remain in China. The Applicant stated that he belongs to the Christian faith and is able to speak, read and write Mandarin and English.

3. The Applicant arrived in Australia [in] November 2017, having been granted [a] (Visitor) visa which was set to expire on 17 February 2018. He applied for a protection visa on 29 December 2018, which was well after the expiry of his Subclass 600 (Visitor) visa. He has not departed Australia since the protection visa application was made.

Protection Claims

1. The Applicant’s original claims for protection are to be found in answers to questions in his protection visa application form. In summary, those claims are as follows:

   (a)The Applicant left China because he became aware of wrongdoings and incidents being covered up by the Chinese Government. He said his perspective had changed after he attended a campaign and gathering organised by a democratic party. He said he made posts on Weibo which included expressing his personal opinion relating to the Tiananmen square protests, also called the ‘June Fourth Incident’.

   (b)The Applicant claims that in the week following his posts he was arrested by police and detained for a few months. Upon his arrest he was blindfolded and taken to an unknown location for interrogation. Police accused him of having intentionally spread fake news about the June Fourth incident and damaged the Government’s image. He was beaten with fists and batons when he attempted to explain himself. Police threatened to put him into a Laogai camp for the purpose of purifying his mind. He was routinely subjected to torture and interrogation until he lost consciousness throughout his detainment.

   (c)The Applicant sought assistance from non-government agencies. However, they did not believe him about his experiences and held different opinions from him regarding the June Fourth Incident and would not help him.

   (d)The Applicant claims that he did not try to relocate within China because he could be tracked down through the internet by police. He fears this will happen if he returns to china.

   (e)The Applicant fears that he will be arrested and subjected to the same treatment he experienced in the past. He also fears being sent to a Laogai camp for the rest of his life.

   (f)The Applicant claims that he cannot seek protection from Chinese Authorities.

2. The Applicant was invited by the delegate to provide further details and material in support of his claims, pursuant to s 56 of the Act. However, he did not do so. Ultimately, the delegate appears to have rejected the Applicant’s claim because of the Applicant’s assertions being unsubstantiated by any corroborative material and lack of detail.

Evidence Given at Tribunal Hearing

1. At the hearing before the Tribunal, the Applicant gave evidence concerning his claims for protection that was fundamentally inconsistent with his original claims. In summary, the Applicant’s evidence in this respect was as follows:

   (a)When asked about his religion, the Applicant initially said that he is not religious and said that he never has been. However, when the Tribunal informed him that he had nominated Christianity as his religion in his original protection visa application form, he told that Tribunal that he thought he was now being asked by the Tribunal about whether he attended Church since being in Australia. He then explained that he was a Christian in China. He said that he had not been a Christian for long in China, but that he had been a member of that religion because of his parents.

   (b)When asked as to why he left China to come to Australia, the Applicant told the Tribunal that the Chinese Community Party was opposed to him being Christian. He said that party officials would ‘bash us’. When asked about when this occurred, he said he could not remember the details of the bashing very clearly but that it would have occurred some time in 2015, 2016 or 2017. The Tribunal asked the Applicant, several times, on how many occasions had he been bashed. He was not able to give a clear answer because he could not remember. He further stated that members of his family had also been bashed at the same time. When asked by the Tribunal which family members he was referring to, he said that his parents had been bashed outside his house. He stated that his parents were living with him at the time. When the Tribunal asked why his wife and son had not also been bashed, the Applicant said that they may have been elsewhere at the time.

   (c)The Tribunal asked the Applicant why he believes he was bashed and whether it was because he was Christian. He said that he believed that was the reason because those who bashed him were opposed to Christianity and they told him that he should not believe in the religion. The Applicant said he does not want to return to China because he fears that the Community Party Officials will bully him again. He said this is the only reason why he does not want to return to China. The Tribunal asked the Applicant whether there were any other incidents of harm he had experienced in China that he would like to draw the Tribunal’s attention to. He said there was not. The Applicant made no reference to any events that resembled the claims he had made in his original protection visa application, as summarised in paragraph ‎[17].

   (d)The Tribunal then drew the Applicant’s attention to the claims he had made in his original protection visa application and invited him to comment on whether any of those original claims were true. The Applicant made some suggestion that those claims were not entirely accurate. He was given an opportunity to elaborate but ultimately was unable to provide any explanation about the fundamental inconsistencies between the claims in his original protection visa application and the claims that he had made at the hearing before the Tribunal.

Country Information

1. The Department of Foreign Affairs and Trade (‘DFAT’) most recently published an information report about China on 3 October 2019. In this case, given the Tribunal has found the Applicant to be an entirely unreliable witness (see discussion below), and has rejected all his claims, it is unnecessary to refer to specific information contained in the DFAT report.

Analysis of Evidence and Factual Findings

1. When assessing claims, the Tribunal must make findings of fact in relation to those claims. In doing so, the Tribunal must assess whether the Applicant’s claims are credible. Credibility is to be assessed by having regard to the individual circumstances of the case and the evidence before the Tribunal.[9]

   [9] Department of Home Affairs, PAM 3: ‘Refugee Law Guidelines’, [15.3].

2. The Tribunal also recognises that applicants may be stressed as a result of being separated from home and family. They may also have difficulty in remembering details of events as a result of the passage of time. Cultural issues may affect the manner in which they answer questions. The nature of their claims, if genuine, may cause them some consternation in expressing their fears.

3. If the Tribunal finds an applicant to be generally credible, they should be given the benefit of the doubt where they are unable to fully substantiate all of their claims.[10] However, this only applies if the Tribunal is satisfied as to the Applicant’s general credibility in the case at hand.[11] An applicant is not entitled to have claims accepted simply because there is a possibility that they might be plausible.[12]

   [10] Ibid [15.4].

   [11] SZNRZ v Minister for Immigration and Citizenship [2010] FCA 107; UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (2019), [203]-[204].

   [12] SZLPN v Minister for Immigration and Citizenship [2010] FCA 202, [17].

4. Ultimately, it is for the applicant to satisfy the Tribunal that the statutory criteria for the grant of a protection visa are met. The Tribunal is not obliged to assist an applicant in establishing their case. Nor is the Tribunal required to accept uncritically any or all of their claims.[13] It is the responsibility of the applicant to specify all particulars of their claim and to provide sufficient evidence in support of it.[14]

   [13] MIEA v Guo (1997) 191 CLR 559, 596’ Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155, 169-70.

   [14] Migration Act 1958 (Cth), s 5AAA(2).

5. In this case, the Tribunal has received oral evidence from the Applicant that is significantly at odds with what he stated in his original protection visa application. In his original application, it was essentially claimed that he was persecuted in China for his pro-democracy political opinions. At the hearing, his claim was advanced on the effective basis that he fled China because he was persecuted for his Christian beliefs. Neither set of claims bear any reasonable degree of resemblance to one another.

6. Notwithstanding the vague and non-specific nature of the original claims, their the nature of these claims is so alarming and serious that no person who had actually experienced those events is ever likely to forget them, if they were true. However, it is evident to the Tribunal that the original claims are not true. If they were true, the Applicant would have remembered a sufficient amount of detail about his time in detention and torture in China, as he had originally described, to relay the narrative of those terrible events to the Tribunal in person. He had would have the Tribunal believe that he had forgotten about them entirely, until prompted about them by the Tribunal towards the end of the hearing. The Tribunal does not accept that he had forgotten about them because the Tribunal does not accept that they were ever true.

7. His evidence throughout the hearing was otherwise generally unreliable. Even isolating his claims advanced at the hearing, concerning his Christian beliefs, he admitted that he has never gone to Church since being in Australia. He made only vague references to going to Church in China.

8. None of his claims about being bashed in China because of his Christian beliefs are believable. His memory of the events he described is fundamentally deficient. His evidence discloses a case for a protection visa that lacks any credible foundation.

Conclusion

1. The evidence of the Applicant is unreliable and the Tribunal does not accept it. No other evidence sustains his claims. The Tribunal rejects each and every one of his claims advanced in both his original application and at the hearing before the Tribunal.

2. Accordingly, The Tribunal is not satisfied that the Applicant meets either the refugee criterion or the complementary protection criterion.

DECISION

1. The Tribunal affirms the decision not to grant the Applicant a Permanent Protection (Class XA) (Subclass 866) visa.

Dr Jason Harkess

Member