2204742 (Refugee) - [2023] AATA 4681

2204742 (Refugee) [2023] AATA 4681 (17 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Simon Sen Tao (MARN: 1277816)
CASE NUMBER:  2204742
COUNTRY OF REFERENCE:                   China
MEMBER:Louise Nicholls
DATE:17 August 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 17 August 2023 at 5:13pm
CATCHWORDS
REFUGEE – protection visa – China – Federal Circuit Court remittal – reconstituted review – religion – Yi Guan Do (Tian Dao) – involved in Yi Guan Do activities in Sydney since 2015 – complementary protection criterion – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 19A
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 417
Migration Regulations 1994 (Cth), Schedule 2
CASES
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 dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The first-named applicant (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] November 2007 she arrived in Australia travelling on a Chinese passport as the holder of an Australian student visa. The two other applicants (the applicant children) are the applicant’s minor children, aged [age] years and [age] years. Both children were born in Australia and the applicant provided a copy of their NSW birth certificates.
The applicants applied for protection visas on 11 August 2016.
The applicant attended an interview at the Department of Immigration and Border Protection on 20 April 2018.
On 3 May 2018 the delegate of the Minister for Immigration and Border Protection refused to grant protection visas 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 May 2018.
There is no restricted material on the Department’s file.
The applicant appeared by audio and later by video conference before the Tribunal, differently constituted (Tribunal 1), on 13 November 2020, 5 February 2021 and 14 April 2021 to give evidence and present arguments. 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 29 March 2022. The matter is now before the Tribunal pursuant to an order of the Court.
The applicant appeared before the Tribunal on 27 July 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English Languages.
The applicant gave evidence about her background, her…

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 2204742 (Refugee)

Details

AGLC: 2204742 (Refugee) [2023] AATA 4681
Case: [2023] AATA 4681
Decision Date: 17 August 2023

CaseChat Overview and Summary

This matter concerned an application for review of a decision to affirm a protection visa refusal. The applicant, a Chinese citizen, sought review of the decision that she did not meet the criteria for a protection visa, nor was she entitled to complementary protection. The applicant had been involved in Yi Guan Do (also known as Tian Dao) activities in Sydney since 2015.

The primary legal issue before the court was whether the applicant met the criteria for a protection visa, and if not, whether she qualified for complementary protection. This required the court to assess the applicant's claims of potential harm or persecution should she be returned to China, particularly in relation to her religious activities.

The court considered the evidence presented, including various documents such as passports, birth certificates, Tian Dao membership cards, photographs of religious services, and letters of support from fellow members and a Buddhist temple. The court noted discrepancies between the applicant's statements to the delegate and her evidence at the hearing regarding her relationship with her former partner, but found these discrepancies did not impact the core assessment of her protection claims. The court's reasoning focused on whether the applicant had established a well-founded fear of persecution or a real risk of significant harm, considering the specific circumstances of her involvement with Yi Guan Do.

The court affirmed the decision under review, finding that the applicant had not met the criteria for a protection visa or complementary protection.

Orders

Orders of the court

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Background

Background to the litigation

The relevant law is set out in the attachment. Background The applicant is a Chinese citizen and is [age] years old. She was born and grew up in a rural village in [Town 1], Fuqing City [4] which is located in Fujian province approximately 40kms south of the provincial capital Fuzhou.[5][4] Also known by its local name of Rongcheng – Fuqing is the Mandarin version[5] (‘Rongcheng’ 2000, Microsoft Encarta Interactive Atlas 2000) The applicant has [number] siblings; [number] older sisters who live and work in Europe and one younger brother who lives in the home village and assists his parents in their [business]. The applicants’ parents operate a [business] with their relatives, and they continue to live in the applicant’s home village. The applicant keeps in regular contact with her parents and siblings; she stated they talk to each other regularly through a WeChat group. The applicant attended primary and middle school in [Town 1]. She commenced vocational high school in [Town 1] but left before the end of her course because she was successful in obtaining a student visa for Australia.The applicant’s relationship with her former partner. The applicant has two children; her first child was born on [date] and is almost [age] years old and her second child was born on [date] and is [age] years old. Her children are included as applicants in this application for review. The applicant claims she is separated from the father of the children but that he provides money to support the children and they have a family day once a week where they will often go to the park together and share a meal afterwards. In the interview with the delegate the applicant stated that she lived with her former partner from June 2010 until the end of July 2015 in share accommodation at an address in [Suburb 1] and that her friend [Ms A] was the lease holder. It was put to the applicant she claimed otherwise in her application. She responded that before April 2012 she and her ex-partner lived somewhere else and that they lived with [Ms A] from April 2012 until the end of July 2015. At the Tribunal hearing on the 27 July 2023 the applicant claimed that she met her former partner in Sydney in September 2010 when they were both working in a restaurant. Her former partner was born in [Town 2] in Fujian Province and also came to Australia as a student. She stated that they started going out together in 2010 and started living together in 2012 and shared accommodation with a housemate, [Ms A], in [Suburb 1]. The evidence given at the hearing differs from the applicant’s responses at the delegate’s interview. However, the date the applicant formed a de facto relationship with her former partner is not material to the consideration of the applicants’ claims for protection. In any event, the Tribunal accepts that the discrepancy may have been caused by a failure of memory given that some years have passed since the couple first met. The applicant claimed that she and her former partner separated in 2015 because she found out he was cheating on her while she was pregnant with her second child. The applicant claimed she moved out of her rented accommodation with the two children. At first, she had to borrow money to survive. She stated that her former partner still lives in [Suburb 2], Sydney but as far as she is aware he does not have a visa. She is not aware whether he is working and thinks he may be receiving money from his parents. She was not able to give any further details about her former partner.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The applicant provided several documents to support her application for a protection visa, including:Documents provided to the Department and held on file No [number]:·Copy of the applicant’s Chinese passports issued [in] 2022. ·Copy of the second-named applicant’s Australian birth certificate issued on [date].·Copy of the third-named applicant’s Australian birth certificate issued on [date]. The applicants’ Tian Dao membership cards (Chinese and English languages). ·Several photographs showing the applicant engaged in religious service and duties. ·Statement setting out the applicant’s claim (Chinese and English language) dated 29 July 2016. ·Letter of support from [Ms A] (Chinese and English language), a fellow Tian Dao Cultivator; 25 April 2018. Letter of support from [Ms B] (Chinese and English language), a fellow Tian Dao Cultivator; 25 April 2018. ·Letter of support from [Ms C] (Chinese and English language), a fellow Tian Dao Cultivator; 26 April 2018. Documents provided to the Tribunal in File No 1814874:·Delegate’s decision record dated 3 May 2018. ·Several items of country information. ·Additional photographs showing the applicant engaged in religious activities. ·Letter of support from members of the [named] Buddhist Temple; 22 October 2020.·Statement by [Ms D], an accredited interpreter in Mandarin and English dated 14 April 2021. ·Submissions made by the applicant’s representative dated 10 February 2021. ·A Yi Guan Do Glossary list. Documents provided to the Tribunal in File No 2204742: An additional submission made by the applicant’s representative dated 20 July 2023. ·Photos of Church activities in Australia.CONSIDERATION The issue in this case is whether any of the applicants meet the refugee criterion and, if not, whether any are entitled to complimentary protection. The relevant law is set out in the attachment. Background The applicant is a Chinese citizen and is [age] years old. She was born and grew up in a rural village in [Town 1], Fuqing City [4] which is located in Fujian province approximately 40kms south of the provincial capital Fuzhou.[5][4] Also known by its local name of Rongcheng – Fuqing is the Mandarin version[5] (‘Rongcheng’ 2000, Microsoft Encarta Interactive Atlas 2000) The applicant has [number] siblings; [number] older sisters who live and work in Europe and one younger brother who lives in the home village and assists his parents in their [business]. The applicants’ parents operate a [business] with their relatives, and they continue to live in the applicant’s home village. The applicant keeps in regular contact with her parents and siblings; she stated they talk to each other regularly through a WeChat group. The applicant attended primary and middle school in [Town 1]. She commenced vocational high school in [Town 1] but left before the end of her course because she was successful in obtaining a student visa for Australia.The applicant’s relationship with her former partner.