2115708 (Refugee)

[2022] AATA 2511

2115708 (Refugee) [2022] AATA 2511 (16 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Simon Sen Tao (MARN: 1277816)

CASE NUMBER:  2115708

COUNTRY OF REFERENCE:                   China

MEMBER:Katherine Harvey

DATE:16 June 2022

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 June 2022 at 3:46pm

CATCHWORDS

REFUGEE – protection Visa – China – religion – Christian –applicant refused to attend hearing – applicant did not provide sufficient information to establish a link between the politicisation of the TSPM and a fear of harm – applicant has failed to provide sufficient evidence to establish his claim that he is a Christian – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5,36, 65, 499

Migration Regulations 1994, 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 dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 October 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a citizen of the People’s Republic of China (China) and applied for the visa on 27 November 2020. He claims to fear return on the basis that he would be unable to practise his religion as he wishes to without repercussions.

3. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant is a Christian nor that he has a profile that would be of adverse interest to the Chinese authorities or anyone else if he returned to China.

4. The applicant lodged a review of the delegate’s decision with the Administrative Appeals Tribunal (the Tribunal) on 3 November 2021. He provided a copy of the delegate’s decision.

5. The applicant was represented in relation to the review.

6. The issues to be considered in this case are:

   ·does the applicant have a well-founded fear of persecution in relation to China and meet the refugee protection provisions of the Act?

   ·does the applicant meet the protection obligations under the complementary protection provisions of the Act?

7. For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.   

   CRITERIA FOR A PROTECTION VISA

8. 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.

9. 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.

10. 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).

11. 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.

12. 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

13. 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

14. The applicant arrived in Australia in September 2017 on a three-month visitor visa. He filed his application for a protection visa on 27 November 2020. His application included a signed statement outlining his claims, dated 25 November 2020.

15. The applicant did not attend a scheduled protection visa interview with the Department of Home Affairs (the Department) on 16 December 2020. According to the delegate’s decision record, the applicant failed to provide a reasonable explanation for his non-attendance and the interview was not rescheduled.

16. The Department wrote to the applicant on 1 June 2021 with a request for more information to help assess his application. In particular, the applicant was invited to provide further information on his religious claims, on his ability to depart China and on the country information relating to state-sanctioned churches.

17. On 23 June 2021, the applicant wrote to the Department declaring:

    I [name, date of birth and Departmental file number] confirm that my migration agent informed me that Onshore Protection Unit issued out an s 56 request notice on 01-June-2021, inviting me to present further evidence to support my application for a protection visa. I have no additional evidence to present you with; I wish to advice [sic] the assessing officer to make his or her findings based on all the evidence that I have submitted to the department via my migration agent’s immiaccount.

18. A decision to refuse the application was made on information before the delegate.

19. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 3 November 2021. On 17 May 2022, the Tribunal wrote to the applicant inviting him to attend a hearing to give evidence and present arguments relating to the issues arising in his case. In the invitation, the Tribunal stated that ‘we have considered the material before us but we are unable to make a favourable decision on this information alone’. The hearing was scheduled for 3 June 2022 in Adelaide.

20. On 23 May 2022, the applicant instructed his authorised migration agent by email:

    …to inform the Tribunal that he wont [sic] attend the AAT hearing scheduled on 03*-06-2022 and wishes the Tribunal to make its findings based on the materials he has submitted.

21. The Tribunal agreed to the applicant’s request and the hearing was vacated. The applicant was advised that the Tribunal would make a decision on the papers.

    The applicant’s claims

22. The applicant submitted a signed statement in Chinese and English to the Department with his application for the protection visa outlining his claims. In his statement the applicant claims that he is a Chinese citizen who farmed rice and corn with his family. He claims he is a Christian who attended the home or Family Church before joining the Three-Self Patriotic Church (officially known as the Three-Self Patriotic Movement (TSPM)), which he stopped attending in 2017 because the church was politicised. He claims that after he stopped attending, he was warned by the TSPM Pastor and the village commissioner that it would be illegal to attend the Family Church. He claims that he didn’t want to attend the TPSM Church but was concerned that if he attended the Family Church, the village committee may not extend his land contract, which may affect his family’s financial stability.

23. No further evidence was provided by the applicant to the Department or to the Tribunal in support of his claims.

    FINDINGS AND REASONS

24. In reaching its decision, the Tribunal has considered the Department’s file in relation to the application, including the applicant’s statement containing his claims for protection. As noted above, the applicant did not provide any further information to the Tribunal and chose not to accept the Tribunal’s invitation to attend a hearing to give evidence and present arguments.

25. The applicant provided a copy of the delegate’s decision with his application for review. The Tribunal is satisfied that the decision is reviewable under s 411(1)(c) of the Act. 

26. The Tribunal conducted a review ‘de novo’ and has considered and made its own assessment of whether the applicant meets the criteria for the grant of a protection visa. As such, the Tribunal has not relied on the delegate’s decision in reaching its decision.

27. In addition to the application for a protection visa and the applicant’s statement summarised above, the Department’s file contains a signed and dated Clause 2.17(b) & (c) Notice[1] confirming that the applicant had been advised by his migration agent in writing that ‘…in his opinion my visa application has no prospects of success before the Department of Home Affairs or the Administrative Appeals Tribunal…’, an incomplete copy of the applicant’s passport and a Form 956 appointing the applicant’s migration agent.

    [1] In line with Part 2.17 of the Department of Immigration and Border Protection Code of Conduct for registered migration agents (current from 18 April 2017).

28. The Department file contains a copy of the applicant’s passport identity page and most but not all pages from his passport. Only the month and year that the passport was issued are legible on the copy provided. In his application, the applicant states that his passport was issued [in] 2013. Based on the copy of his passport on the Department’s file, the Tribunal finds that the applicant is a national of China and assesses his protection claims accordingly.

29. There is no evidence that the applicant has the right to enter and reside in a country other than his country of citizenship. The Tribunal finds s 36(3) of the Act does not apply to him.

30. The applicant was in Australia at the time of this decision.

31. The Tribunal found the applicant’s claims vague, generalised and lacking detail. The applicant claims to be a Christian and to have been involved in both the underground, home or Family Church and the Three-Self Patriotic Church in China, however he provides no specific information or examples to demonstrate his beliefs or show how he practised his faith in China nor if or how he practises his faith in Australia.

32. The Three-Self Patriotic Church, officially known as the Three-Self Patriotic Movement (TSPM), was established in 1949 and is the official governing body for Protestant churches in China. It is the single state-sanctioned Protestant church in mainland China. The DFAT country information supports the applicant’s claims of the politicisation of the TSPM:

    In recent years the government has increased efforts to force them to submit to the authority of the TSPM, teach Party-aligned doctrine, cut off association with foreign churches, and subject the appointment of leaders to rules set out by the TSPM.[2]

    [2] DFAT Country Information Report China (22 December 2021) p17.

33. However, the applicant did not provide sufficient information to establish a link between the politicisation of the TSPM and a fear of harm.

34. The applicant did not provide evidence to support his supposition that he may be subject to discrimination by the local authorities if he attended the Family Church. He does not provide any details about the nature of the Family Church, nor does he provide information about what has happened to the land contract or his family since he left China in 2017.

35. In his statement of 25 November 2020, the applicant undertook to ‘endeavour to have the evidence ready and submit to the department in due course’, however no further information has been provided and the applicant stated he had no additional evidence on 23 June 2021 (paragraph 17 above).

36. The Tribunal notes that s 5AAA of the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of the applicant to specify all particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal on review does not have a responsibility or obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim. This is consistent with the well-settled proposition that it is for the applicant to make his or her own case.[3]

    [3] Prasad v MIEA (1985) 6 FCR 155 at 169-70; SZBEL v MIMIA (2006) 228 CLR 152; at [40]; Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 (Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, 1 November 2005 at [73]; MIMA v Lay Lat (2006) 151 FCR 214 at [76]; and Abebe v Commonwealth (1999) 197 CLR 510 at [187].

37. The applicant’s decision not to accept the Tribunal’s invitation to attend a hearing has left the Tribunal unable to address concerns it has regarding the lack of detail in his claims. The Tribunal notes that on each occasion when the applicant has been invited to provide more
    
    

    information it has not been forthcoming. The Tribunal notes in particular that the applicant failed to provide adequate information relating to:

    a.his fears or concerns regarding his return to China

    b.his religious practice in China and Australia

    c.his ease in departing China

    d.his delay in applying for a protection visa in Australia, and

    e.his planned religious practice if he returned to China.

38. The Tribunal notes that the applicant’s statement does not include any information suggesting he had any difficulties exiting China in an orderly manner. This is consistent with the applicant not being of security interest to Chinese authorities due to his religious or other activities in China.

39. The Tribunal finds, on the information before it, that the applicant has failed to provide sufficient evidence to establish his claim that he is a Christian. The Tribunal finds that he is not a Christian and that he does not plan to practise as a Christian on his return to China, including in either a Family Church or in the TSPM.

40. The Tribunal is not satisfied that the applicant faces a real chance of persecution or serious harm due to his religious activity or beliefs on his return to China now or in the foreseeable future.

41. 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).

42. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal considered the alternative criterion in s 36(2)(aa). For the reasons set out above, the Tribunal does not accept the applicant is a Christian or will practise any form of Christianity on his return to China. Considering all of the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that there are grounds for believing that there is a real risk the applicant will face significant harm if he returns to China. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

43. 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 criteria in s 36(2).

    DECISION

44. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Katherine Harvey
    Senior Member

    
    

    ATTACHMENT  -  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.

    …