2202464 (Refugee) - [2023] AATA 4831

2202464 (Refugee) [2023] AATA 4831 (11 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Paul Yong (MARN: 1797819)
CASE NUMBER:  2202464
COUNTRY OF REFERENCE:                   China
MEMBER:Karen Vernon
DATE:11 December 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 11 December 2023 at 12:51pm
CATCHWORDS
REFUGEE – Protection Visa –China – religion –a practitioner of Falun Gong – an unbaptised student publisher of Jehovah’s Witnesses – baptised as a Jehovah’s Witness – a genuine adherent of the JW faith – effective protection measures are not available to the applicant – applicant has a well-founded fear of persecution – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 56, 65, 423A, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559
MIAC v SZQRB [2013] FCAFC 33
Randhawa v MILGEA (1994) 52 FCR 437
Sun v MIBP [2016] FCAFC 52
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 February 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (Act).
For the following reasons, I have concluded that the decision under review should be remitted for determination on the basis that the applicant is eligible for protection under s 36(2)(a) of the Act.
Visa and migration history
The applicant is a citizen of China who was born in [year]. He lived in China from birth until he came to Australia in 2017 at the age of [age]. He is not a citizen of any other country, and he does not have the right to enter or live in any country other than China.
On 30 September 2015, the applicant was granted a Tourist (FA-600) visa and he arrived in Australia on a valid Chinese passport on[date] August 2017. His visa expired on [date] November 2017, following which the applicant remained in Australia unlawfully for 6 months prior to applying for a protection visa.
The applicant applied for a protection visa on 13 May 2018 claiming that he left China because he had been persecuted by the Chinese government as a practitioner of Falun Gong which is a religion banned in China. He stated that he fears that he will be imprisoned and tortured by the Chinese government because of his religious beliefs as a Falun Gong practitioner if he returns to China.
On 30 September 2021 the Department sent a letter to the applicant under…

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 2202464 (Refugee)

Details

AGLC: 2202464 (Refugee) [2023] AATA 4831
Case: [2023] AATA 4831
Decision Date: 11 December 2023

CaseChat Overview and Summary

The applicant, a citizen of China, sought review of a decision by the Department of Home Affairs to refuse his protection visa application. The applicant initially claimed to fear persecution in China as a practitioner of Falun Gong, a religion banned in China. However, he later withdrew this claim and sought assessment on the basis that he was an unbaptised student of Jehovah's Witnesses (JW) since 2019, providing extensive documentary and testimonial evidence to support this revised claim.

The primary legal issue before the court was whether the applicant had a well-founded fear of persecution for a Convention reason, specifically as a practitioner of Jehovah's Witnesses, such that Australia had protection obligations towards him under section 36(2)(a) of the Migration Act 1958 (Cth). The court was required to determine if the applicant was a genuine adherent of the JW faith and if effective protection measures were unavailable to him in China.

The court accepted the applicant's evidence that he does not have a right to enter or reside in any country other than China, and therefore section 36(3) of the Act did not apply. The court found that the applicant had provided substantial evidence demonstrating his genuine adherence to the JW faith, including documentary evidence of his involvement in JW activities in Australia and letters attesting to his commitment. Based on this evidence, the court concluded that the applicant had a well-founded fear of persecution in China due to his religious beliefs, and that effective protection measures were not available to him.

Consequently, the court remitted the decision under review to the Department for redetermination on the basis that the applicant is eligible for protection under section 36(2)(a) of the Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I accept the applicant’s evidence that he does not have a right to enter and reside in a country other than China. I find that s 36(3) of the Act does not apply to the applicant.The applicant’s evidence The applicant is now [age] years old. He was born in Qingdao City, Shandong Province, China. The applicant is an only child. His parents both lived and worked as farm labourers, but if the crop season was not busy, they would migrate to other places for casual work. His parents were not well educated but they put a lot of hope in the applicant to better himself through education. His mother still lives in China. His father died suddenly in 2019 of a heart attack. He is not married and does not have any children. The applicant grew up in a rural area and his childhood was quite normal, although he described himself as an introvert. He did not follow any religion growing up and neither did his parents. He attended school locally to high school level, then attended a technical college to [study]. The applicant claimed he was a good student. He graduated with a college diploma, but he didn’t feel he had met his parents’ expectations. After he graduated from college, he worked in Qingdao City, but living away from home, doing 2 different jobs, one as a [occupation] and the other in a [factory]. He wasn’t very happy with his job so he resigned and returned home to live with his parents. As an introvert, he enjoyed solitary activities including listening to music, watching videos and playing online games. The applicant said he developed some “bad habits”, spending too much time on the internet watching videos, and that he was “addicted” to online computer gaming. After he returned to live at home, his parents nagged him a lot about his life, so they suggested that he travel overseas and see the world. He went to a tourism agency who arranged all the paperwork for his trip to Australia. When he arrived in Australia, he travelled across the country sightseeing, meeting people and making friends and thought it was a great place. In September or October 2017, the applicant was sharing a house with a person who practised Falun Gong. The applicant was still engaging in his “bad habits” on the internet so he claimed his housemate suggested he should practice Falun Gong to get rid of his bad habits. The applicant says he was introduced to Falun Gong for the first time by his housemate, but he only ever practised the Falun Gong exercises a few times. The applicant says that when he started a job as a [subcontractor] on a casual basis in Australia, on one occasion he was in a car with his boss, who he called “[name]”, sitting outside a grocery store [when] the police arrived and arrested his boss, who was then detained by the Department of Home Affairs. The applicant said he suddenly realised how important it was to have the right visa to stay in Australia, so that is when he did some research and learned about protection visas. Protection visa application claim to be Falun Gong practitioner

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

For the following reasons, I have concluded that the decision under review should be remitted for determination on the basis that the applicant is eligible for protection under s 36(2)(a) of the Act.Visa and migration history The applicant is a citizen of China who was born in [year]. He lived in China from birth until he came to Australia in 2017 at the age of [age]. He is not a citizen of any other country, and he does not have the right to enter or live in any country other than China. On 30 September 2015, the applicant was granted a Tourist (FA-600) visa and he arrived in Australia on a valid Chinese passport on[date] August 2017. His visa expired on [date] November 2017, following which the applicant remained in Australia unlawfully for 6 months prior to applying for a protection visa. The applicant applied for a protection visa on 13 May 2018 claiming that he left China because he had been persecuted by the Chinese government as a practitioner of Falun Gong which is a religion banned in China. He stated that he fears that he will be imprisoned and tortured by the Chinese government because of his religious beliefs as a Falun Gong practitioner if he returns to China. On 30 September 2021 the Department sent a letter to the applicant under s 56 of the Act inviting the applicant to provide additional information and clarification of his claims. The applicant did not respond to this invitation. The applicant was not interviewed by the Department of Home Affairs. On 3 February 2022, the delegate refused the applicant’s claims on the basis that the delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36(2) of the Act. In summary, the delegate was not satisfied that the applicant was a Falun Gong practitioner, or that the applicant had a well-founded fear of persecution for any of the reasons in s 5J(1)(a) of the Act. For the reasons set out below, I have not considered the delegate’s decision further.Proceedings in the Tribunal On 23 February 2022, the applicant applied for a review of the delegate’s decision and provided a copy of the delegate’s decision to the Tribunal. By letter dated 16 May 2022, the Tribunal invited the applicant to make a written submission and provide witness statements supporting his claims by 31 May 2022. On 18 May 2022, the applicant lodged a response with the Tribunal advising of a change of circumstances. On 1 June 2022, the applicant submitted the following documents to the Tribunal in support of his claims:a.a statutory declaration dated 30 May 2022 withdrawing his claims as a Falun Gong practitioner and requesting his claim be assessed on the basis that he was an unbaptised student of Jehovah’s Witnesses (JW) since 2019;b.a bundle of documents marked Appendix A – S in support of his claims, including:i.A – Article: “China: Jehovah’s Witnesses hunted down and deported”; Bitter Winter, 21.2.2019;ii.B – Webpage: “How China is Ruled”; BBC News, 2019;iii.C – Article: “China launches anti-cult digital platforms”; China Daily, 22.9.2017;iv.D – Report: “China: Religion and Chinese Law”, Report for Department of Justice, The Law Library of Congress, Global Legal Research Center, June 2018;v.E – Article: “China supports Russia’s Persecution of Jehovah’s Witnesses”; Bitter Winter, 7.3.2019;vi.F – Article: “Supreme Court rules to criminalise the activity of Jehovah’s Witnesses in Russia”; JW.org, 21.4.2017;vii.G – Article: “Russian Authorities seize Assembly Hall of Jehovah’s Witnesses”; JW.org, 25.12.2017;viii.H – Article: “Moscow - Beijing: the anti-cult axis of evil”; Bitter Winter, 14.2.2019;ix.I – Congregation’s Publisher Record of activities by applicant for 2021-2022;x.J – 2021 Service Year Report of Jehovah’s Witnesses Worldwide;xi.K – Extract from the JW Bible – Matthew 24:14;xii.L – Extract from the JW Bible – Matthew 28:19, 20;xiii.M – reference letters from G Rackham, W Huang, P Wallace, C Wilson and S Yang attesting to the applicant’s involvement in JW in Australia;xiv.N – Photo evidence of bible studies;xv.O – Ministry Letter writing;xvi.P – Photos attending meetings of JW;xvii.Q – Personal bible notes 1;xviii.R – Personal bible notes 2;xix.S – photos of personal bible and study books.