2104422 (Refugee) [2021] AATA 3670 (1 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2104422
COUNTRY OF REFERENCE: China
MEMBER:Amanda Paxton
DATE:1 September 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 01 September 2021 at 5:03pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Falun Gong – particular social group – failed asylum seekers – family violence – physical assault – fear of arrest – applicant resigned from the Communist Party – employment – departure from China – decision under review affirmed
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 Immigration and Border Protection on 13 December 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (the Act).
The applicant, her son, the ‘second applicant’, and daughter, the ‘third applicant’ arrived in Australia together [in] June 2017, the applicant as the holder of a Subclass 590 Student Guardian visa, the second and third applicants on TU500 Student visas, having departed Beijing China [earlier in] June 2017. On 26 July 2017, the Protection visa application was lodged with the Department, with her husband as the primary visa applicant. The applicant and her two children were included as secondary applicants on the Protection visa application of [Mr A].[1] All four visa applicants were granted bridging visa As, without conditions, in connection with the Protection visa application on 4 September 2017.[2] None of the applicants have departed Australia since their arrival.
[1] [File number], Application for a protection visa, pp. 32–80.
[2] [File number], pp. 113–126.
On 20 December 2017, the applicants validly applied for review of the delegate’s decision to the Tribunal, attaching a copy of the delegate’s notification and decision from the Department, to the application.
[In] July 2004, the applicant married [Mr A].[3] On 14 April 2021 she advised that she and her husband have separated, and requested that a new merits review case be created for the applicants.[4] A Family Violence Interim Intervention Order dated [in]…
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.
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2104422 (Refugee) [2021] AATA 3670
Case
[2021] AATA 3670
Decision Date
CaseChat Overview and Summary
The Administrative Appeals Tribunal (AAT) considered the protection visa applications of three Chinese citizens. The applicants claimed to be practitioners of Falun Gong and asserted a fear of persecution, arrest, and imprisonment if returned to China due to their religious beliefs and alleged monitoring by the Chinese Communist Party. The Tribunal was required to determine whether the applicants met the criteria for a protection visa under section 36(2)(a) or (aa) of the *Migration Act 1958* (Cth), which involves assessing whether they are refugees with a well-founded fear of persecution or face a real risk of significant harm upon removal to China.
The Tribunal's reasoning focused on the applicants' obligation to establish their claims. It noted that while an applicant's account should be given the benefit of the doubt if credible, this benefit is contingent on all available evidence being obtained and checked, and the examiner being satisfied of the applicant's general credibility. The Tribunal found that the applicants had not satisfied the statutory elements required to demonstrate a well-founded fear of persecution or a real risk of significant harm. Specifically, the Tribunal was not satisfied that the applicants were persons in respect of whom Australia had protection obligations.
Consequently, the Tribunal affirmed the decision not to grant the applicants protection visas, as they failed to satisfy the criteria under section 36(2)(a) or (aa) of the *Migration Act 1958* (Cth). As a result, they were also unable to satisfy the criteria under section 36(2)(b) or (c) for family members.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Accordingly, the Tribunal accepts and finds that the applicants are Chinese citizens. There is no evidence to suggest that the applicant has a right to enter and reside, whether temporarily or permanently, in any other country. Accordingly, the applicants’ protection claims will be assessed against China as the country of reference and as the ‘receiving country’.Background According to the applicant’s Form 866C, Application for a Protection Visa, the applicant was born on [date] ([age] years old), is a Chinese citizen by birth, born in Digzhou, Hebei province, China. The Form 866C includes the second applicant, born on [date] ([age] years old), and the third applicant, born on [date] ([age] years old), both born in China.[13] [13] [File number], pp. 32–80. The Form 866C indicates the applicant travel history is as follows:·[city and province in Country 1], [specified dates in] May 2015, Tourist visa;·Melbourne, Australia, [June] 2017–present. The Form 866C application states the applicant’s ethnicity as Han Chinese and religion as Falun Gong. She indicated that she could speak, read and write in Mandarin. The only extended family declared in the Form 866C are [Mr A’s] parents both living in China, together with his [specified relatives] all residing in Australia.Written claims for protection The applicant’s written claims for protection are first put forward in the Form 886C, in which she is a secondary applicant of the main applicant, [Mr A].[14] In the Form 886C, it is declared that [Mr A] and his colleague, [Friend A], were Falun Gong practitioners and that [Friend A] had been arrested multiple times and interrogated by police. [Mr A] feared he and his family were in danger of persecution. [14] Ibid. pp. 72–73. In the Form 886C, [Mr A] claims he was monitored by the Chinese government, that he was not able to publicly practise Falun Gong, and that Falun Gong is regarded as a cult and subject to crackdowns. [Mr A] stated he did not seek help within the country following the harm he had experienced nor did he try to move to another part of the country. He said there was no one who could protect him from the control and monitoring by the Chinese Communist Party which is all over China. [Mr A] stated he feared if he returned to China, he would be arrested, imprisoned, persecuted and could lose his life to the one-party Chinese Communist Party. In the Form 866C, it is claimed that Falun Gong is treated as an illegal cult, where members are subject to arrest. Reference is made in the Form 866C to public demonstrations by Falun Gong members against the Chinese government, resulting in tens of thousands of Falun Gong members being persecuted and killed. Various documents were provided to the Department in support of these claims including photographs of Falun Gong members involved in public demonstrations in Australia,[15] passports of all four visa applicants,[16] a signed statement of [Mr A] dated 10 July 2017 with additional explanation of his claims,[17] a stamped passport page of [the applicant] showing her trip to [Country 1],[18] Notarial Certificates of [the third applicant] and [the second applicant] showing their birth dates,[19] a statement from [specified] Public Security Bureau dated [in] January 2013,[20] a Notarial Certificate issued by the Notary Public Office of Dingzhou City, Hebei Province, China, confirming the applicant has no criminal record[21] and letters of support in the Chinese language.[22][15] Ibid. pp.12–13,18, 23–24, 81–88, 93, 98,145–149, 281–284.[16] Ibid. pp.152–280.[17] Ibid. p.139.[18] Ibid. p.14.[19] Ibid. p.17 & 27.[20] Ibid. pp 100 & 135.[21] Ibid. p.104.[22] Ibid. pp 89–90.
Evidence
Evidence Before The Court
If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt.[9] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.[10][9] The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at [196].[10] Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at [348].CLAIMS AND EVIDENCE The issue in this case is whether any of the applicants have a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J of the Act in China and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of any of the applicants being removed from Australia to China, there is a real risk that they will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. Country of reference The applicants claim to be citizens of China. Copies of the applicants’ passports were provided to the Department and the Tribunal. The applicant’s passport, issued [in] 2015, indicates she was born [date] in Hebei, China.[11] The second applicant’s passport, issued [in] 2016 indicates he was born [on date] in Hebei, China, and the third applicant’s passport also issued [in] 2016 indicates she was born on [date] in Hebei, China.[12] [11] AAT 2104422, Doc Id [Number], 8 July 2021.[12] Ibid. Accordingly, the Tribunal accepts and finds that the applicants are Chinese citizens. There is no evidence to suggest that the applicant has a right to enter and reside, whether temporarily or permanently, in any other country. Accordingly, the applicants’ protection claims will be assessed against China as the country of reference and as the ‘receiving country’.Background According to the applicant’s Form 866C, Application for a Protection Visa, the applicant was born on [date] ([age] years old), is a Chinese citizen by birth, born in Digzhou, Hebei province, China. The Form 866C includes the second applicant, born on [date] ([age] years old), and the third applicant, born on [date] ([age] years old), both born in China.[13] [13] [File number], pp. 32–80. The Form 866C indicates the applicant travel history is as follows:·[city and province in Country 1], [specified dates in] May 2015, Tourist visa;·Melbourne, Australia, [June] 2017–present. The Form 866C application states the applicant’s ethnicity as Han Chinese and religion as Falun Gong. She indicated that she could speak, read and write in Mandarin. The only extended family declared in the Form 866C are [Mr A’s] parents both living in China, together with his [specified relatives] all residing in Australia.Written claims for protection
Decision
Reasons for decision
For the reasons given above the Tribunal is not satisfied that any of the applicant 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 The Tribunal affirms the decision not to grant the applicants protection visas.Amanda PaxtonMemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…
Ratio Decidendi
Legal Principle Established
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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.Credibility When assessing claims, the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings. The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim.[6] Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[7] [6] Migration Act 1958, s 5AAA.[7] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at [169–70].