2108853 (Refugee)
[2022] AATA 1130
•9 March 2022
2108853 (Refugee) [2022] AATA 1130 (9 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2108853
COUNTRY OF REFERENCE: China
MEMBER:Brendan Darcy
DATE:9 March 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 09 March 2022 at 2:10pm
CATCHWORDS
REFUGEE – protection visa – China – religion – protestant Christian – protested against removal of cross from church building – detained and beaten – no attendance at hearing – credibility – limited, vague and unsupported claims – departed on own passport – responsibility to specify claims and provide evidence – country information – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1), 5J(1), 36(2)(a), (aa), 56, 65, 414, 441A, 462A
Migration Regulations 1994 (Cth), Schedule 2CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155Any 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 7 July 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 the People’s Republic of China (China), applied for the visa on 17 February 2020. The delegate refused to grant the visa on the basis that the available country information did not support the applicant’s otherwise limited written claims.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant was born on [Date] in China’s Liaoning Province.
A copy of the applicant’s valid passport issued by the authorities of the People’s Republic of China [in] 2019 is on Departmental file ([Number]).
The applicant arrived in Australia [in] December 2019 on a visitor visa.
The applicant applied for a Class XA Subclass 866 onshore protection visa on 17 February 2020 and was granted an associated bridging visa.
In that application for a protection visa, the applicant advanced written reasons that he is owed Australia’s protection obligations. The applicant’s otherwise vague and limited claims for protection are summarised as follows:
·The applicant is a Protestant and was the victim of a malicious campaign orchestrated by the Chinese Communist Party.
·The authorities attempted to remove a cross from their Protestant church. This led to the applicant to attend a protest with other parishioners.
·The applicant and his friends were assaulted by security guards who came to stop the protest.
·The applicant was then taken to the police station, held there for two weeks, beaten and humiliated by the authorities. He felt disgraced and that he was treated like a traitor.
·The applicant did not seek help from the authorities as it would have been risky for him, and he feared further punishment.
·The applicant did not attempt to relocate within China as this would have not helped me in feeling safer or would have stopped the government persecuting him for being a Protestant.
·If the applicant is returned to China, the applicant will be beaten, jailed, and harmed by the police and he will live a life of religious deprivation – void from any meaningful religious faith.
The Tribunal notes the applicant described his ethnicity as Han Chinese; his religion as Christian and that he speaks Mandarin and that he speaks, reads and writes in English. It also mentions that his highest level of educational attainment was his completion of secondary or high school. He also claims his marital status is ‘never married’.
There were not additional documents or statements attached to the application in support of the applicant’s claims.
On 3 May 2021, the Department forwarded a ‘Request for more information’ letter to the applicant. It was sent via email inviting them under s56 of the Act to provide more information about some of the claims in their application and to provide clarification on particular points. 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.
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.
On 7 July 2021, the delegate, acting on behalf of the Minister, then proceeded with a decision based on the available information before the Department. The decision was to refuse the applicant a protection visa.
On 29 July 2021, the applicant applied to have the delegate’s refusal decision reviewed by the Tribunal. The delegate’s decision record was attached to the application for review.
On 2 December 2021, the applicant was invited to attend a hearing to provide evidence and present arguments that he was owed Australia’s protection obligations. The invitation was emailed to the applicant on [Email address] . The date for the scheduled hearing was 13 December 2021 to be conducted by video conference using Microsoft Teams or to conduct the hearing in audio.
The Tribunal received an email from the applicant on 6 December 2021 stating, in full:
Dear Officer,
Good day to you. I don't have the equipment to conduct a telephone video hearing, please arrange to attend the face to face hearing at Melbourne location AAT court. Thanks for your arrangement and understanding.
Thank you.
Regards,
[The applicant]
The 13 December 2021 hearing was consequently cancelled.
On 8 February 2022, the applicant was invited to an in-person hearing scheduled for 8 March 2022 at 1.30pm at the Tribunal’s Melbourne facilities. The invitation was sent to the same email address as the earlier invitation.
The invitation was sent to the correct address, as required by sections 414 and 441A of the Act.
Two SMS hearing reminder messages was sent to the mobile phone number provided by the applicant on 1 and 7 March 2022 respectively. However, the messages failed to be delivered.
No response to the invitation was provided to the Tribunal up to and including the day of the scheduled hearing.
On 8 March 2021, the applicant did not attend the hearing at the scheduled time. An additional fifteen minutes was added to the hearing to allow the applicant an opportunity to present arguments and evidence and to account for any very late requests or submissions for an adjourned hearing. The applicant did not attend the scheduled hearing or provide any submissions.
The Tribunal waited overnight for the applicant to explain his non-attendance. The Tribunal did not provide any medical certificate from a medical professional about his non-attendance. At the time of writing this decision, the Tribunal had not received any submissions.
In these circumstances, and pursuant to s462A of the Act, the Tribunal has decided on the review without taking any further action to enable the applicant to appear before it.
(There are no non-disclosure certificates attached the Departmental and Tribunal files pertaining to this protection visa application.)
ASSESSMENT OF CLAIMS
Country of Reference
The applicant has claimed to be a citizen of China. He provided a copy of his passport issued by the People’s Republic of China to the Tribunal. On the basis of this evidence, the Tribunal finds the applicant is a national of China for the purposes of the Convention and that his country is the receiving country under sections 5H and 36(2)(aa) of the Act.
Assessment of Claims
The applicant did not appear before the Tribunal to elaborate upon his claims. The Tribunal does not accept the applicant was unable to attend the scheduled hearing for medical reasons that he was unfit to attend a Tribunal hearing, given the applicant did not respond to the scheduled hearing invitation and given the applicant did not provide any explanation for the applicant’s non-attendance at any time in support of any request for an adjournment or a postponement.
The applicant has made limited as well as unsubstantiated and uncorroborated claims to fearing his return to China; including the vague references to his fear of being beaten and imprisoned by the authorities in his home country on the basis of him belonging to a Protestant denomination of Christianity. The applicant does not elaborate on his religious beliefs or whether he was born into a Christian family or whether he converted to Christianity, either from another religion, another Christian denomination or from no religion at all. The applicant also made claims that he was beaten and imprisoned by the authorities for protesting about the removal of a Christian cross or crucifix from this Protestant church. There are no details about whereabouts of the church or any timeframe as to when the protest and arrest occurred.
The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that his for the reasons 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
Had the applicant attended the scheduled face-to-face hearing which he specifically requested, the Tribunal would have asked for considerably more details about the applicant’s claims to be a Protestant Christian, including which denomination and whether he held any positions or offices in that religion. It would have asked the applicant about his knowledge of Christian history and its basic tenants commensurate with his education and the length of time he had participated in that religion before his departure for Australia. It would have also asked how he has maintained his religious practices in Australia and whether any witnesses or third parties who could corroborate his claimed religious affiliation.
Had the applicant attended the scheduled hearing, it would have enquired into more details about the claimed past harm incident involving the authorities, including the role of the police or the Communist Party officials. It would have enquired whether there was any independent reporting of the incident or any evidence that he had been incarcerated. It would have asked the applicant whether he was a person of interest to the authorities if he was permitted to exit China, and whether he remains a person of interest on his return. It would have asked the kinds of harm he would expect to encounter, either on arrival or in the community, and whether he be able to relocate to another part of China.
Furthermore, the Tribunal would have referred to country information on China from the DFAT in relation to the situation experienced by Protestant Christians in China. It would have noted that the current DFAT report dated 22 December 2021 that credible and local and international sources indicated that Protestant Christians face a low risk of societal discrimination abut a moderate risk of official discrimination. It would have mentioned that situation for Protestants in China differs from place to place and community to community and that DFAT is aware of Protestant communities that have been largely unaffected by increased government oversight and where usual worship activities and practices have continued largely without any interference. The nature of Protestant Christianity is that smaller churches not linked to any central hierarchy or authority are harder to control by either the state or the religious authority but conversely are also less likely to be seen as a threat to the state and thus less likely to be targeted.
The Tribunal notes that the Department provided the applicant with an opportunity to elaborate on his claims when it wrote to the applicant in May 2021. This strongly indicates to the Tribunal that there is a lack of urgency, gravity and credibility to the applicant’s claimed fears.
However, the applicant did not attend the scheduled hearing and no reasons for his non-attendance was ever provided.
Section 5AAA of the Act makes it clear that it is the applicant’s responsibility to specify all particulars of a claim to 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.
In the context of the applicant’s non-responsiveness to a Departmental request to elaborate on his claims, the Tribunal considers his non-attendance to the scheduled hearing strongly indicates that there is no credible basis for the applicant's otherwise limited, vague and unsubstantiated fears.
In the context of the applicant’s non-responsiveness to elaborate on his claims to both the Department and the Tribunal and based on the available evidence about the applicant’s circumstances, both individually and cumulatively considered, the Tribunal finds there is no real chance that, if he returns to the People’s Republic of China in the reasonably foreseeable future, he would be persecuted for any reason.
The applicant’s fear is not well-founded as required by s.5J of the Act and therefore he is not a refugee within s.5H of the Act.
Based on the same considerations about the applicant’s circumstances, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the People’s Republic of China there is a real risk, he will suffer significant harm.
Conclusion
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). 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.
Brendan Darcy
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.
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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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