2113079 (Refugee) - [2023] AATA 4121

2113079 (Refugee) [2023] AATA 4121 (29 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Harry Huang (MARN: 9579277)
CASE NUMBER:  2113079
COUNTRY OF REFERENCE:                   China
MEMBER:Louise Nicholls
DATE:29 August 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 29 August 2023 at 2:27pm
CATCHWORDS
REFUGEE – protection visa – China – Federal Circuit Court remittal – forced abortion of second pregnancy – religion – underground Roman Catholic – arrested at church gathering and taken to family planning agency for forced sterilisation – lived and worked in third country – detained and fined for church attendance during return visit – no attendance in third or fourth countries, attendance in Australia initially to support claims for protection visa, then more genuinely – considerable knowledge of Catholicism and situation in China – country information – general official toleration at the time – church membership at the time not accepted – recent agreement between Vatican and Chinese government – family planning policies – forced abortion accepted – sterilisation, possibly forced, accepted but unrelated to church attendance – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), 65, 425
Migration Regulations 1994 (Cth), Schedule 2
Administrative Appeals Tribunal Act 1975 (Cth), ss 19A(1), 19D(4)
CASES
MZXRE v MIAC (2009) 176 FCR 552
SZEPZ v MIMA (2006) 159 FCR 291
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

The applicant claims to be a citizen of the People’s Republic of China (China) and is [Age] years old. She was born in Fuqing City, Fujian Province, China. [In] June 2016 she arrived in Australia travelling on a Chinese passport as the holder of an Australian visitor visa.
The applicant applied for a protection visa on 4 July 2016.
The applicant attended an interview at the Department of Immigration and Border Protection on 29 June 2017.
On 2 August 2017 the delegate of the Minister for Immigration and Border Protection refused to grant a protection visa under s.65 of the Migration Act 1958 (the Act) because the delegate was not satisfied that the applicant met the requirements for that visa.
This is an application for review of that decision, and it was made on 22 August 2017.
There is no restricted material on the Department’s file.
The applicant first appeared before the Tribunal, differently constituted (Tribunal 1), on 19 February 2021 to give evidence and present arguments. The hearing was conducted remotely. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The Tribunal affirmed the delegate’s decision, and that decision was set aside, by consent, by the Federal Circuit Court on 21 September…

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 2113079 (Refugee)

Details

AGLC: 2113079 (Refugee) [2023] AATA 4121
Case: [2023] AATA 4121
Decision Date: 29 August 2023

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a Chinese national. The applicant claimed she faced serious harm if returned to China due to her adherence to Roman Catholicism and her refusal to join the registered Catholic Church. She alleged a history of forced abortion and forced sterilisation by Chinese authorities, and that she had been arrested at an underground church gathering. The Federal Circuit Court of Australia was required to determine whether the applicant met the criteria for a protection visa, specifically whether she qualified as a refugee or was entitled to complementary protection.

The court was tasked with assessing the applicant's claims of persecution based on her religion and past experiences with Chinese family planning policies. This involved evaluating the credibility of her account, considering country information regarding the general toleration of religion in China at the time, and determining whether her fear of persecution was well-founded. The court also had to consider the impact of a recent agreement between the Vatican and the Chinese government on the applicant's situation.

The court found that while the applicant's claims of forced abortion were accepted, and her sterilisation was accepted as possibly forced, these events were not directly linked to her church attendance. The court noted that country information indicated general official toleration at the time, and that her church membership was not accepted. Despite acknowledging the applicant's knowledge of Catholicism and her situation in China, the court ultimately affirmed the decision under review, finding that the applicant did not satisfy the refugee criterion. The court also determined that the applicant did not satisfy the complementary protection criterion.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The relevant law is set out in the attachment.Background The applicant is [Age] years old. She was born in Fuqing City but later her family moved to a rural area in the Fuqing City District. Fuqing City is also known by its local name of Rongcheng – Fuqing is the Mandarin version. The city is located in Fujian province approximately 40kms south of the provincial capital Fuzhou[4]. [4] (‘Rongcheng’ 2000, Microsoft Encarta Interactive Atlas 2000) The applicant’s parents are living in their hometown in the rural area. The village is called [Village], [District], [Township], Fuqing City, Fujian Province. The home village has about 500 residents and it is about one hour by car from Fuqing City. Her parents are farmers but are not employed. She has [brothers] and [sisters]. Her brothers live in the home village and her sisters live in other villages in Fujian. The applicant attended primary school in the village, then middle school and vocational high school in the local area. She finished vocational high school when she was about 19 years old. After she left school she worked in a factory for six years. She married in [Year] and she and her husband are still married. They have regular telephone contact. She and her husband have two children; [an Age]-year-old son living and working as [an Occupation in [Country] and [an Age] year old daughter who is still studying in China. Her daughter and husband are living in a rented apartment in Fuqing City. Her husband has been in poor health for 10 years and is unemployed. The family rely on the applicant for their financial support. She works in a [job] and sends them money. In the application for protection visa the applicant set out her migration history as follows:·[October 2007] - holiday/leisure trip to [Countries 1 and 2]·[June] 2008 to [April] 2011 [Country 3]·[April] 2011 to [October] 2011 China·[October] 2011 to [June] 2013 [Country 3]·[June] 2013 to [August] 2013 China·[August] 2013 to [February] 2015 [Country 3]·[February] 2015 to [March] 2015 China·[March] 2015 to [March] 2016 [Country 3]·[March] 2016 to [April] 2016 China·[April] 2016 to [June] 2016 [Country 4].Country of reference The applicant claims she was born in Fujian Province, China and is a citizen of China. She provided a copy of her passport which was issued [in] 2009. She has consistently claimed that she is of Chinese nationality, she spoke Mandarin fluently and she was familiar with the geography and culture of Fujian Province. Taking into account the available evidence, and noting there is no issue as to identity and nationality, the Tribunal is satisfied that the applicant is a citizen of China and that China is the receiving country for the purpose of s.36(2)(aa) of the Act.What are the applicant’s claims? The applicant’s claims are set out in the statement accompanying the application for protection. The applicant discussed her claims for protection with the delegate at an interview on 29 June 2017. The applicant gave oral evidence concerning her claims at the hearing held by Tribunal 1 on 19 February 2021. This hearing was held during the COVID 19 pandemic using MS Teams audio.

Evidence

Evidence Before The Court

Essentially the applicant’s current claims are that if she returns to China, she faces serious harm from Chinese authorities because she is a Roman Catholic and she will join an underground Chinese Catholic congregation and will not join the registered Chinese Catholic Church.Findings and EvidenceClaims of forcible sterilisation and membership of an underground Roman Catholic group in China. In the applicant’s statement of 1 July 2016, she stated that she and her husband married at the end of [Year]. After they married, they opened and ran a [business] in Fuqing City selling [Products]. The applicant fell pregnant and gave birth to her son in [Year]. The applicant claimed that in [Year] she discovered she was pregnant again. She stated at the time the family planning laws were strictly observed and the officials from the family planning office suspected that she was pregnant. The officials tried to pressure her to submit to an abortion but she repeatedly refused. In [Year] family planning officials came to her shop and beat her and forcibly dragged her into the van and headed to the Fuqing City Family Planning station. When she arrived, she was forced to submit to an abortion. Due to the abortion her health deteriorated, and she had pelvic and chronological conditions which caused her to stay at home to rest for several years. In [Year] she found she was pregnant again but escaped attention by the family planning authorities by avoiding contact with officials. She went into labour in [Year] and when she attended the hospital, she experienced difficulties in the birth process. She claimed during this time she was assisted by a midwife who was a Roman Catholic who told her to believe in God and pray. She gave birth to her daughter safely and was very grateful to the midwife. She and her husband paid 15,000RMB for the birth of their daughter[5]. After the birth local family planning officials asked her to submit to sterilisation but she declined the request.[5] “Social compensation fee” Article 46 of the Fujian Population and Family Planning Regulations 2014 The applicant claimed she became friendly with the midwife and started to attend underground Catholic Church activities from the beginning of 2006. Her husband was a Buddhist and did not approve but he respected her wishes to become a Roman Catholic. She claimed that in August 2006 she was baptised to be Roman Catholic in a private church members home in Fuqing City. She claimed that in [Year] she and 40 or so church members were participating in a church gathering when they were arrested by local police and taken to the Rongcheng[6] police station. She was questioned about her personal details and asked to give details about the underground church group to which she belonged. [6] Rongcheng is the local name for Fuqing City. She did not answer any of the questions about the underground church group. She claimed after about 15 minutes one of the policemen returned to the room with two auxiliary police officials. They handcuffed her hands took her to a police vehicle and she was taken to the Fuqing City Family Planning station where officials were planning to forcibly sterilise her. They gave her anaesthesia and sterilised her without her consent. After three hours she woke up and was told to go home. After the sterilisation her wound suffered inflammation and irritation and she developed a deep scar. After this took place, her daughter was given household registration.

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 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). 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

Ratio Decidendi

Legal Principle Established

The applicant provided several documents to support her application for a protection visa, including:Documents provided to the Department File No [Reference].·Copy of the applicant’s Chinese passport issued [in] 2009.·Statement setting out the applicant’s claims (English language) dated 1 July 2016.Documents provided to the Tribunal File No 1718989·Delegate’s decision record dated 2 August 2017.·Letter from [Organisation] dated 3 February 2021.·Letter from [Father A] dated 3 February 2021.·Several photographs showing the applicant outside a Catholic Church in Sydney and photographs of the applicant standing together with members of the clergy.Documents provided to the Tribunal File No 2113079·Letter of support from [Fr. A] of [Organisation] 8 July 2023.·Letter of support from [B], current president of [Organisation] 8 July 2023.·Submissions made by the applicant 12 July 2023.·Letter of support from [Fr. C] 9 July 2016.·Letter of support from [Ms D] and translation 9 July 2023.·Letter of support from [E], and translation 9 July 2023.·Letter of support from [Sister F] and translation 8 July 2023.·Letter of support from [G], ex-president of [Organisation], and translation 9 July 2023.·Photos of church activities in Australia.·Post hearing submissions made by the applicant 26 July 2023.CONSIDERATION The issue in this case is whether the applicant meets the refugee criterion and, if not, whether she is entitled to complimentary protection. The relevant law is set out in the attachment.Background The applicant is [Age] years old. She was born in Fuqing City but later her family moved to a rural area in the Fuqing City District. Fuqing City is also known by its local name of Rongcheng – Fuqing is the Mandarin version. The city is located in Fujian province approximately 40kms south of the provincial capital Fuzhou[4]. [4] (‘Rongcheng’ 2000, Microsoft Encarta Interactive Atlas 2000) The applicant’s parents are living in their hometown in the rural area. The village is called [Village], [District], [Township], Fuqing City, Fujian Province. The home village has about 500 residents and it is about one hour by car from Fuqing City. Her parents are farmers but are not employed. She has [brothers] and [sisters]. Her brothers live in the home village and her sisters live in other villages in Fujian. The applicant attended primary school in the village, then middle school and vocational high school in the local area. She finished vocational high school when she was about 19 years old. After she left school she worked in a factory for six years. She married in [Year] and she and her husband are still married. They have regular telephone contact. She and her husband have two children; [an Age]-year-old son living and working as [an Occupation in [Country] and [an Age] year old daughter who is still studying in China. Her daughter and husband are living in a rented apartment in Fuqing City. Her husband has been in poor health for 10 years and is unemployed. The family rely on the applicant for their financial support. She works in a [job] and sends them money.