2206319 (Refugee)
[2024] AATA 4095
•30 July 2024
2206319 (Refugee) [2024] AATA 4095 (30 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2206319
COUNTRY OF REFERENCE: China
MEMBER:Dr Greg Weeks
DATE:30 July 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 30 July 2024 at 2:25pm
CATCHWORDS
REFUGEE – protection visa – China – decision on the papers – religion – Christian – underground church – insufficient information before the Tribunal – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 56, 65
Migration Regulations 1994 (Cth), Schedule 2Any 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 (delegate) on 6 April 2022 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants are married to one another and are citizens of China. The [primary applicant] is a [age]-year-old woman. The [secondary applicant] is a [age]-year-old man. [The primary applicant] obtained a Visitor visa to enter Australia on 5 December 2017 and first arrived in Australia [in] February 2018. After three further departures, she arrived in Australia most recently [in] November 2018. [The secondary applicant] obtained a Student Guardian visa to enter Australia on 12 December 2016 and first arrived in Australia [in] May 2017. He departed Australia twice before arriving most recently [in] July 2018.
The Tribunal has been provided with a copy of the applicant’s application for a protection visa dated 10 December 2018 (PV application). Both applicants were granted Bridging visas on 17 December 2018. [The secondary applicant] did not make his own claims for protection but seeks a protection visa as a member of the same family unit as [the primary applicant].
The applicants were invited to attend an interview with the delegate to be held on 14 December 2021 but the primary applicant claimed that she had received no correspondence in relation to that appointment and the interview did not proceed. On 27 January 2022, the applicants were invited by email to attend an interview, originally scheduled to take place on 15 February 2022. The primary applicant replied from the email address on the Tribunal’s file (contact address) as follows:
I have decided not to attend the interview because I believe I have provided enough supporting information to immigration with my protection visa for your consideration.
The delegate refused to grant the applicants protection visas and provided reasons for that decision in a decision record dated 6 April 2022. The applicants applied to the Tribunal for review of that decision on 29 April 2022.
On 31 May 2023, the Tribunal wrote to the applicants advising that their file was being prepared to be given to a Tribunal Member and requesting that they complete and return an information form. The primary applicant completed, signed and returned the form attached to an email from the contact address sent on 5 June 2023. She checked the box on that form which accompanied the following text:
No, I do not want to have a hearing and I consent to the Tribunal making a decision on the papers without inviting me to a hearing for my case.
On 25 July 2024, an officer of the Tribunal wrote to the primary applicant at the contact address and confirmed receipt of her email dated 5 June 2023. The email then said:
The Presiding Member has considered the material before the Tribunal but is unable to make a favourable decision on this information alone. Please confirm in writing that both applicants understand this, and that both applicants consent to the Tribunal making a decision on the papers.
On 29 July 2024, the primary applicant replied from the contact address as follows:
Yes we both adult applicants understand that the Member has considered the material before the Tribunal but is unable to make a favourable decision on this information alone.
The email was sent over the names “[Primary applicant] and [Secondary applicant]”.
This decision has been made on the evidence available to the Tribunal.
Claims for protection
In a statement attached to the PV application (statement), the primary applicant claimed to have joined a family church the previous year. She claimed that she was not baptised at that time because she “was just encountering the difficult time when the local government and police strived to crack down the house church by all means”. She claimed that a “church elder was summoned by the government authority and never came back again” and that the church then terminated all services and activities. The primary applicant claimed that she was warned after that by government officials that she should not “get involved in any underground church activities or would be sanctioned by law”. She claimed to be “aware the reason for our elder’s disappearance was nothing but his sheer denials to the government’s warnings”. She claimed that, “as pious Christians, we always spare no effort in finding opportunities for gathering or family congregation” but that she was “taking risk by doing so and felt really upset about the consequences and effect from it”.
In the statement, the primary applicant claimed that [the secondary applicant] accompanied her son to Australia as an overseas student in May 2018 but that she was reluctant to leave her church. She was also continuing to run a “small family [business]”. She claimed that the church gathered in a room of a warehouse that she rented and that the church had supported her to start the family business. The primary applicant claimed that she therefore contributed a portion of her income to the church and subsidised certain of the church’s expenses, including “repair, renovation, refurbishment, bibles supplies, ecclesial printing, and congregational catering”. Her contribution “also included the cost of our church elder and a brother on his missionary task as well as the basic living expense of an elderly person of no family”. The primary applicant claimed that her business developed rapidly with the support of the church and became its “financial resource”. She then claimed that, “because of this, our local government tried every possible way to cut off the access of church’s income” by targeting her business.
The primary applicant claimed that government officials came to her trading venue to “make trouble on the pretext of taxation inspection and review”. She claimed that “various unwarranted ‘charges’” were threatened and that her faith sustained her to overcome the “soaring pressure, difficulties and hardship imposed by government and police”. The primary applicant came to visit her family in Australia in July 2018 and returned to China three months later. She claimed that she was immediately “summoned by the government official and police in regards to my financial support to the family church” and that law enforcement officers of Trade and Industry Bureau “challenged by some account issues and forced to give an explanation, whilst confess my relationship with the investigating church I engaged”. She claimed to have been aware that a church member was arrested outside their town and that the police detected from the leaflets she had been handing out that the primary applicant had “financed the underground church in secret”. Police found evidence against the primary applicant on her mobile phone and accused her of “confronting or denying government decrees deliberately by providing financial support for the problematic church”. The primary applicant claimed that she was “ordered to confess, rectify and reform by paying an overdue or extra tax bill” but consider that this was “nothing rather than rip off to make my business bankrupted or put me out of business by heavy fine”.
The primary applicant claimed that she was forced to sell the business and, “apart from the penalty”, shared the rest of the money with the church members she had supported and used the rest to travel to Australia. The primary applicant claimed that [the secondary applicant] was also included in the police investigation for his “previous church engagement”. She claimed that her church brethren encouraged her to leave for Australia and she “thought I must be hurry up to ensure I am able to leave for Australia within my visa’s validation”.
The primary applicant claimed that she and [the secondary applicant] participate in “local church in Australia and give witnesses for our faith”. She claimed that “Chinese government is now enforcing the repression and crack-down against the family churches and some churches were forced to shut down or demolished, church elders and those on ecclesial duties were persecuted, and these have become indisputable facts”.
On 17 May 2021, the Department of Home Affairs (the Department) caused a letter to be sent to the primary applicant under s 56 of the Act inviting her to provide additional details about her claim for protection (the s 56 letter). By email from the contact address sent on 20 May 2021, the primary applicant sent three photos which appear to show that she was baptised in the [Church 1] in Australia [in] April 2019. The primary applicant later sent an undated document which was received by the Department on 7 October 2021 in response to the s 56 letter. That document repeated the claims in the statement and provided details about the applicants’ religious practices and beliefs in Australia.
The primary applicant claimed that she had been able to depart China safely because she was eligible to pass through the security checks on the basis that she is “neither a convict nor one with a criminal record in China or wanted person”. She stated that she would not attend a state-sanctioned church in China and claimed to fear religious persecution by the “atheist communist regime”.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
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 (the refugee criterion).
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, 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.
Analysis, reasons and findings
For the following reasons, I have concluded that the decision under review should be affirmed.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason 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 amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal has no responsibility or obligation to specify, or assist in specifying, any particulars of the claim or to establish or assist in establishing the claim,[1] nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[2]
[1] Section 5AAA of the Act.
[2] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 596; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169-70.
I have significant problems with the applicant’s claims. The evidence provided by the primary applicant in the statement and the response to the s 56 letter is not sufficiently detailed to enable me to be satisfied that she faces a real chance of persecution in China or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that she will suffer significant harm.
There is insufficient information before me in relation to the primary applicant’s religious beliefs and how she became involved with the church in China. I have insufficient information about whether the primary applicant’s involvement in the church went beyond allowing gatherings in her warehouse and whether she would do so again if returned to China. I have insufficient information about the church to which the primary applicant belonged in China, how many people attended church gatherings and the attitude of the Chinese government to that church. I have insufficient information about whether, how often and where the primary applicant attends church in Australia and what activities she undertakes as a part of such a church. I have insufficient information about the primary applicant’s contact with police and government authorities in China and about the nature of their warnings and other conduct towards her. I have insufficient information about the action taken against the primary applicant’s business and to what extent her involvement with the church led to that action. I have insufficient information about how the primary applicant was able to enter and leave China notwithstanding the adverse official interest in her involvement with the church. I have insufficient information about how the primary applicant would practice her religious beliefs if she were returned to China and why she believes that her safety would be at risk.
Given the lack of information identified above, without more detail, it is difficult to know what significance can be attached to the applicant’s assertions. She has not provided any further information to enable me to determine if she has suffered persecution in the past, whether her fear of facing persecution in the future is owing to any of the reasons listed under section 5J(1)(a) of the Act or if her fear is well-founded.
In view of the insufficient information and lack of detail contained in the primary applicant’s claims, I am not satisfied that she has been persecuted in the past for reasons of race, religion, nationality, membership of a particular social group or political opinion. I am not satisfied that there is a real chance that the primary applicant will be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion in the reasonably foreseeable future. I am not satisfied that the primary applicant has a well-founded fear of persecution in China.
Having concluded that the primary applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa). I am not satisfied that there are substantial grounds for believing that, as are necessary and foreseeable consequence of the applicants being removed from Australia to China, there is a real risk that she will suffer significant harm. I am therefore not satisfied that the primary applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Because the primary applicant does not satisfy the criteria set out in s 36(2)(a) or (aa) for a protection visa, it follows that the secondary applicant is unable to satisfy the criteria set out in s 36(2)(b) or (c). Therefore, neither applicant can be granted a protection visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Dr Greg Weeks
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.
…
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Jurisdiction
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Statutory Construction
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Natural Justice
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Procedural Fairness
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