2107865 (Refugee)
[2022] AATA 891
•14 April 2022
2107865 (Refugee) [2022] AATA 891 (14 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2107865
COUNTRY OF REFERENCE: China
MEMBER:Peter Vlahos
DATE:14 April 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
This Statement was made on 14th April 2022 at 8.08AM.
CATCHWORDS
REFUGEE – protection visa – China – religion – Christianity – church ordered by local government to cease all gatherings – friends arrested and religious material confiscated – vague claims and evidence – departed on valid passport – no further information or documentary evidence provided or attendance at hearing – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1), 5J(1), 36(2)(a), (aa), 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 dependants.
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 11 June 2021 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 May 2019. The delegate refused to grant the visa on the basis that the applicant’s application did not satisfy sub-section 36(2) of the Act.
History of proceedings
On 30 November 2021 the Tribunal wrote to the applicant that it had reviewed and considered all the material before it but was unable to make a favourable decision and invited the applicant to appear before the Tribunal to give evidence and to present arguments relating to her claims at 4.00PM on 15 December 2021. The hearing would be conducted via a teleconference due to the state of emergency that was in place in the State of Victoria.
On 30 November 2021 the applicant wrote the Tribunal informing it as follows:
Dear Officer,
Good day to you. I don't have the equipment to conduct a telephone video hearing, can I request to attend the hearing at Melbourne location AAT court. Thanks for your arrangement and understanding.
Thanking you,
[The applicant]
On 14 December 2021 the Tribunal responded to the applicant’s email (30 November 2021) advising that as soon as a new hearing date is available, the Tribunal would write to the applicant.
On 29 March 2022, the Tribunal wrote to the applicant informing her that a face-to-face hearing of her application would be held on 13 April 2022 at 9.00AM, at Level 4, 15 William Street, Melbourne, Victoria,3000.The applicant was also advised as follows:
Please read and complete the enclosed ‘Response to hearing invitation’ form and return it to the AAT within 7 days of receipt of this letter. Please use the ‘Response to hearing invitation’ form attached to this letter or attach additional information if you have any requests or any new information which you wish us to consider. Any documents or written submissions sent to us should be in English or translated by a qualified translator.
The Tribunal also provided the applicant with further hearing reminders which were directed to her mobile phone, - on 6 April 2022 and 12 April 2022 both of which were returned ‘unanswered’.
The applicant did not present herself for the hearing as scheduled and did not provide the Tribunal with a notification (by telephone) or in writing (via email) as to the reasons why she was unable to attend the hearing as scheduled.
The Tribunal proceeded to decide in this matter on the available information and evidence as is provided for by the applicant to the Department and Tribunal.
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 issue in this case is whether Australia has protection obligations in respect to the applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of Nationality and Identity
Based on copies of the applicant’s passport filed on the Department’s file and presented to the Tribunal prior to the hearing of this matter, the applicant’s written evidence (on file), and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of the Peoples’ Republic of China and has had her claims assessed against that country in relation to section 36(2)(a) and 36(2)(aa) of the Act. Therefore, the Tribunal accepts that the applicant’s identity is as claimed.
The Applicant’s migration history
[In] March 2019 the applicant arrived on the visa provided to her enabling her to travel to Australia (Class/subclass FA-600). On 20 May 2019 the applicant made an application for a Protection visa which was subsequently refused by the Department and now the subject of review by this Tribunal and was issued with the associated Bridging visa.
Protection Claims of the Applicant
The applicant’s claims for protection, including those provided at the Department and supporting evidence are contained in the Department’s File no. [Reference 1]. The applicant’s claims are summarised as follows:
·The applicant is Christian and attended Church every Sunday.
·The applicant claims there is no freedom of religion in China.
·The applicant received an order from the district administration for religious affairs to cease all religious gatherings.
·Many of the applicant’s friends were arrested and the police confiscated religious material and tore down a Holy Cross.
·The police wanted to arrest the applicant because they knew she was involved in this religious
gathering.
·If the applicant returns to China she will be arrested because of her religion, she will be imprisoned and tortured.
The Tribunal finds the applicant’s claims are vague and lacking in detail.
Section 5AAA of the Act makes it clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any particulars of the applicant’s claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
The applicant did not attend the Tribunal hearing despite being advised that the Tribunal had considered all the material before it in relation to her application, but it was unable to make a favourable decision on the information alone. Had the applicant attended the hearing, the Tribunal would have explored the applicant’s claims with her, in particular, her claim that while in China, her religious freedom had been curtailed. The Tribunal would have asked the applicant to explain in detail how her freedom of religion had been subjected to state-imposed controls. Also, the Tribunal would have asked the applicant to explain in detail, how the applicant received an order from a district administration for religious affairs to cease all religious gatherings. In particular, the Tribunal would have asked the applicant – why and how had she come to the attention of the local authorities because of her religious beliefs.
Moreover, the Tribunal would have explored with the applicant her religious beliefs and thoughts so as to ascertain as to why these beliefs, as the applicant claimed caused her to seek protection in Australia. Furthermore, the Tribunal would have explored with the applicant how a individual (the applicant) had successfully departed the PRC on a valid passport when it was claimed that the authorities wanted to arrest her. Finally, the Tribunal would have explored with the applicant her concerns about returning to China. The Tribunal noted from the applicant’s claims that she claimed that, if she returns to China she will be arrested because of her religion. The Tribunal would have discussed at length with the applicant, at hearing, whether she had engaged in any religious activities while here in Australia which might cause her to fear her arrest by the authorities if she returned to China in the foreseeable future.
The Tribunal noted from the decision record (at p.2) that the Department wrote to her on 9 July 2021 providing her with the opportunity to provide all the details of her claims for protection and all documentation or other evidence to support her claims, but nothing was provided. The Tribunal also noted the following comment made by the Department in the decision record:
This invitation gave the applicant 28 days to respond and provide more information and clarification of their claims. The letter also advised the applicant that a decision could be made based on the information in their application and in any response, they provide to the request for more information letter.
This email ‘bounced back’ with the message ‘This mailbox is disabled (554.30)’. I then resent the full
contents of this email via post on 12 April. Australia post tracking receipt confirms that this letter was
successfully delivered on 16 April 2021.[1]
The applicant did not respond to this invitation within the prescribed timeframe, and, to date, they have not provided any further information to the Department in support of their claims. As advised in the request for more information letter, I am now proceeding with a decision based on the information before the Department.
[1] [Reference 1] - Tracking receipt - delivered – [number] - s56 Request for More Information - [Reference 2] - [the applicant]
Finally, the Tribunal would have discussed with the applicant all the current country (that is available) information as far as it concerned the issues of religious freedom and worship in the PRC and would have asked the applicant to comment on this information and in particular how the present issues concerning the Chinese state’s attitude to all religions and religious movements in China, and in particular, that of Christianity impacted on the applicant’s life and person.
Overall, the Tribunal considers that the applicant has been given a reasonable opportunity by the Department in the recent past and by the Tribunal to provide information and evidence to substantiate her claims and to be heard and he has chosen to ignore all avenues of review, without providing any reasons or even attempting to engage.
Considering the applicant’s individual circumstances, on a cumulative basis, the Tribunal finds there is no real grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China the is a real risk, she will suffer significant harm.
Conclusions
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) of the Act.
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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
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.
Peter Vlahos
MemberATTACHMENT - 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.
…
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Standing
-
Statutory Construction
-
Natural Justice
-
Appeal
0
0
0