2105884 (Refugee) - [2022] AATA 2530

2105884 (Refugee) [2022] AATA 2530 (13 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2105884
COUNTRY OF REFERENCE:                   China
MEMBER:Alan McMurran
DATE:13 June 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 June 2022 at 11:26am

CATCHWORDS
REFUGEE – protection visa – China – Federal Circuit Court remittal – religion – Christianity – member of ‘true’ Roman Catholic church – detained, interrogated, beaten and warned – credibility – false information provided in previous visitor visa application – vague claims and non-responsive oral evidence – low-level member, limited knowledge, attendance and activity and no supporting evidence – no harm to family remaining in home area – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2
Administrative Appeals Tribunal Act 1975 (Cth), ss 19A(1), 19D(4)
CASES
Chan v MIEA (1989) 169 CLR 379
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 197 CLR 559
MZXRE v MIAC (2009) 176 FCR 552
SZEPZ v MIMA (2006) 159 FCR 291
SZFYW v MIAC [2008] FCA 1259
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

This is an application lodged 4 February 2019 for review of a decision made by a delegate of the Minister for Home Affairs on 15 January 2019 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 20 July 2017. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa).
The Department refused the application on 15 January 2019 and the applicant’s review application was heard in the Tribunal on 24 November 2020. The Department decision was affirmed by the Tribunal, differently constituted. The applicant appealed to the Federal Circuit Court (“the court”), and the application was remitted by consent to the Tribunal on 28 April 2021.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Procedural history
The matter is now before the Tribunal, differently constituted, pursuant to s.19A(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act). The application was further constituted for review in March 2022.
The applicant appeared before the Tribunal in a telephone hearing on 7 June 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant gave evidence 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.

Continue reading 2105884 (Refugee)

Details

AGLC: 2105884 (Refugee) [2022] AATA 2530
Case: [2022] AATA 2530
Decision Date: 13 June 2022

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a citizen of the People's Republic of China. The applicant, who arrived in Australia in May 2017, claimed to fear persecution based on his conversion to Roman Catholicism. The case came before the Administrative Appeals Tribunal (AAT) for a fresh review following a remittal from the Federal Circuit Court. The applicant's wife and two teenage children remained in China.

The primary legal issues before the Tribunal were whether the applicant had a well-founded fear of persecution or a real risk of significant harm if returned to China, and whether he met the criteria for complementary protection. Specifically, the Tribunal had to assess the applicant's claims of detention, interrogation, beating, and warnings, and consider his credibility, particularly in light of potentially false information provided in a previous visitor visa application and the vagueness of his oral evidence. The Tribunal was also required to consider relevant country information and Departmental guidelines.

The Tribunal found that the applicant's claims were not well-founded. It noted that the applicant provided vague and non-responsive answers when questioned about false information provided to the Department. Furthermore, the Tribunal assessed the applicant's level of religious activity and knowledge as limited, and found no supporting evidence for his claims of persecution. The Tribunal also considered that the applicant's family remaining in China had not experienced harm. Applying the relevant country information and guidelines, the Tribunal concluded that there was no real risk of significant harm to the applicant upon return to China, and that he did not meet the criteria for complementary protection.

The Tribunal affirmed the decision under review, meaning the applicant's protection visa application was refused.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 EVIDENCEBackground The applicant is a [Age]-year-old married citizen of the People’s Republic of China. He has a wife and 2 teenage children living in China in Fujian province. The family were practicing Buddhists until 2015 when the applicant’s wife converted to Christianity, and adopted Roman Catholicism. The applicant arrived in Australia on a visitor visa [in] May 2017 and made application to the Department for a protection visa on 20 July 2017. The applicant attended a telephone interview with his representative and a Department officer on 11 January 2019. The Tribunal has listened to that interview. The applicant has confirmed that what he said in that interview was correct.First Tribunal hearing – 24 November 2020 The applicant attended a tribunal hearing, differently constituted, where the Tribunal found that although the applicant has a subjective fear of persecution arising from a single incident with Police, the applicant’s fear was not well-founded, based on ‘one particular incident’, and that there was no real risk of significant harm were the applicant to return to China. The Tribunal further found that the applicant did not meet the complementary protection criteria, due to the practical reality of the number of practicing Catholics throughout China.The Second Tribunal hearing – 7 June 2022 The hearing was conducted by telephone on 7 June 2022, which the Tribunal determined was the most efficient and practical way to conduct the matter and in accordance with the Tribunal’s current Practice Direction. An interpreter in the English to Mandarin language was also present. The applicant’s representative, [Mr E], was also in attendance. The Tribunal explained to the applicant the reasons for the remittal and that it was a fresh review, but that in doing so the Tribunal was continuing proceedings and was not required to review all of the evidence not disputed previously. Where the Tribunal refers below in quotations to comments from the applicant, they are in accordance with words to that effect from the hearing, and may be literal, or as best as could be recorded without editing or correction, but without a transcript.Information provided to the Department The Tribunal began by asking the applicant about the recorded interview and whether he had provided false information to the Department with his earlier visitor visa application. The applicant responded that “I can’t go back to China”, which was not responsive to the question. When asked the same question again, the applicant said that he could not explain why the agent had provided false information and said: “I know nothing about what the agent did”. This was consistent with the applicant’s earlier responses to the Department.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

The Tribunal has had regard to the Act and Regulations, including the extracts set out in the attachment, Department policy, relevant country information, and the application information with the typed statement, and the oral evidence, as referred to below.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 EVIDENCEBackground The applicant is a [Age]-year-old married citizen of the People’s Republic of China. He has a wife and 2 teenage children living in China in Fujian province. The family were practicing Buddhists until 2015 when the applicant’s wife converted to Christianity, and adopted Roman Catholicism. The applicant arrived in Australia on a visitor visa [in] May 2017 and made application to the Department for a protection visa on 20 July 2017. The applicant attended a telephone interview with his representative and a Department officer on 11 January 2019. The Tribunal has listened to that interview. The applicant has confirmed that what he said in that interview was correct.First Tribunal hearing – 24 November 2020 The applicant attended a tribunal hearing, differently constituted, where the Tribunal found that although the applicant has a subjective fear of persecution arising from a single incident with Police, the applicant’s fear was not well-founded, based on ‘one particular incident’, and that there was no real risk of significant harm were the applicant to return to China. The Tribunal further found that the applicant did not meet the complementary protection criteria, due to the practical reality of the number of practicing Catholics throughout China.The Second Tribunal hearing – 7 June 2022 The hearing was conducted by telephone on 7 June 2022, which the Tribunal determined was the most efficient and practical way to conduct the matter and in accordance with the Tribunal’s current Practice Direction. An interpreter in the English to Mandarin language was also present. The applicant’s representative, [Mr E], was also in attendance. The Tribunal explained to the applicant the reasons for the remittal and that it was a fresh review, but that in doing so the Tribunal was continuing proceedings and was not required to review all of the evidence not disputed previously. Where the Tribunal refers below in quotations to comments from the applicant, they are in accordance with words to that effect from the hearing, and may be literal, or as best as could be recorded without editing or correction, but without a transcript.Information provided to the Department The Tribunal began by asking the applicant about the recorded interview and whether he had provided false information to the Department with his earlier visitor visa application.