2016472 (Refugee)

2016472 (Refugee) [2024] AATA 3635 (5 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2016472
COUNTRY OF REFERENCE:                   China
MEMBER:Stefanie Memmott
DATE:5 August 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 05 August 2024 at 10:09am

CATCHWORDS
REFUGEE – protection visa – China – decision on the papers – religion – Christianity – participation in an underground Church – insufficient information before the Tribunal – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), 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
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 October 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant, who claims to be a citizen of China, applied for the visa on 12 September 2019.
CLAIMS AND EVIDENCE
Claims and evidence before the Department
Protection visa application
The applicant’s protection visa application contains, among other things, the following personal information:
·He was born in [year] in Shaanxi, China.
·He is a citizen of China and no other country. He is of Chinese ethnicity.
·He is of the Christian religion.
·He indicates he is not married and lists no family members.
·He travelled to Australia [in] September 2019, departing legally as the holder of a Chinese passport.
·He indicated he had never ben employed and never undertaken any kind of education.
The applicant’s protection visa application sets out the following claims for protection and related information:
·The applicant is a devout underground Christian. He came to know underground Christianity through a friend and joined the community. He felt so lucky to become a Christian. The Lord has taught him a lot.
·However, there is no freedom of religious belief. The Chinese Communist Party combats all underground religious beliefs. Many of his church friends were caught during underground gatherings. They were cruelly tortured and insulted in the detention centre.
·The police wanted to arrest him because they knew he was a devout underground Christian. They continually came to his home and harassed his family.
·For his safety, the applicant escaped to Australia. In Australia, he feels the freedom of religious belief. He can believe in Jesus Christ without any restraints. He can give everything to the Lord.
·The applicant did not try to move to another part of China to seek safety. China forbids the existence of underground Christians. There is no freedom of religious belief, no matter where he goes he will be arrested by the government.
·If the applicant returns to China he will definitely be arrested by the police. They will force him to give up his beliefs and torture him cruelly in prison.
·He will not be protected by authorities if he goes back to China. The local government will not protect him as China is a one-party dictatorship, it requires total obedience. There is no freedom of religious belief in China.
The application form indicates it was prepared without any assistance.
Supporting documentation
The file held by the Department of Home Affairs (the Department) includes a copy of each page of the applicant’s Chinese passport, issued in Shaanxi [in] 2019.
Delegate’s decision
A delegate of the Minister for Home Affairs refused the visa application on 23 October 2020 without conducting an interview. The delegate noted that a request for further information had been sent to the applicant with no response received, but that they would proceed on the basis the applicant was a Christian as claimed. However, having regard to country information cited in the decision record, the delegate concluded the applicant had a low profile and was not wanted by the Chinese authorities. The delegate also considered that the applicant could continue to practice their faith in a state sanctioned church on return to China.
Claims and evidence before the Tribunal
Application for review
An application for review of the refusal decision was lodged on 10 November 2020. A copy of the delegate’s decision record was submitted with this application.
Scheduled hearing
The Tribunal invited the application to appear before the Tribunal on 13 August 2024 to give evidence and present arguments relating to the issues arising in this matter.
However, on 31 July 2024 the applicant provided written notification (by way of completion of a ‘response to hearing invitation’ form) that he would not participate in the hearing, and consented to the Tribunal making a decision on the papers without the Tribunal taking further steps to allow him to appear. The Tribunal has proceeded to make a decision based on the material before it.
CRITERIA FOR A PROTECTION VISA
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.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant has claimed, in his protection visa application, that he is a citizen of China and no other country. As noted above, a copy of the pages of his Chinese passport appear on the Departmental file. In the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of China and that China is the receiving country for the purpose of assessing his claims.
The Tribunal has carefully considered the written claims for protection set out by the applicant in his protection visa application.
However, it is unclear to the Tribunal whether the applicant was still of interest to police at the time of his departure from China, and/or whether he had difficulties exiting China due to the authorities’ interest in him. Further, it is unclear whether the police or other officials have sought to contact the applicant since he left China, continued to harass his family, contacted his family or otherwise acted in a way which would suggest the applicant is still of adverse interest to authorities due to his faith and participation in an underground Church. In this respect, the Tribunal notes that close to 5 years have passed since the applicant left China.
It is also unclear to the Tribunal whether or not the applicant is still in contact with his church friends in China, and what their experiences have been with the authorities since the applicant came to Australia.
The Tribunal also notes that there is limited information before it as to how the applicant sought to practice and express his Christian faith in China, other than that he identified as being part of an underground Church and referring to his friends being caught at gatherings.
Similarly, there is limited information before the Tribunal as to how the applicant has practiced his religion in Australia, other than a reference to feeling the freedom of religious belief, being able to believe without restraints, and give everything to the Lord.
Further, the Tribunal notes that almost 5 years have passed since the applicant lodged his protection visa application and it is unclear to the Tribunal whether the applicant continues to hold Christian religious beliefs and, if so, what they are, whether and how he practises these beliefs and, importantly, how he would seek to practice and express his religious beliefs on return to China.
Given this, it is not clear to the Tribunal whether the applicant remains or may remain of interest to Chinese authorities due to his past participation in an underground Church, whether he would act in a way on return to China which would or could cause him to be subject to adverse interest from Chinese authorities, and/or whether he may seek to conceal or alter his beliefs to avoid harm in China.
On the evidence before it, the Tribunal is not satisfied that there is a real chance the applicant would be harassed, arrested, insulted, tortured, forced to give up his beliefs or otherwise subjected to harm on return to China for reasons of his religious beliefs and practice, or for any other reason.
The Tribunal notes that the threshold for the ‘real risk’ element in the complementary protection criterion in s 36(2)(aa) is the same as that for the ‘real chance’ test in the refugee criterion in s 36(2)(a).[1] Accordingly, for the same reasons, the Tribunal is not satisfied on the evidence before that there is a real risk the applicant would be harassed, arrested, insulted, tortured, forced to give up his beliefs or otherwise subjected to harm as a necessary and foreseeable consequence of being removed to China.
[1] MIAC v SZQRB (2013) 210 FCR 505 (special leave to appeal from this judgment was refused: MIAC v SZQRB [2013] HCATrans 323). See also the Department of Home Affairs, Complementary Protection Guidelines, section 3.5.1.
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). 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)(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.
Stefanie Memmott
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.
(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.
…

[2024] AATA 3635

5 August 2024

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