2219303 (Refugee)

Case [2023] AATA 4675

2219303 (Refugee) [2023] AATA 4675 (7 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Amelia Faraone

CASE NUMBER:  2219303

COUNTRY OF REFERENCE:                   China

MEMBER:Peter Vlahos

DATE:7 December 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

This Statement was made on 7th Decenber 2023 at 8.00AM

CATCHWORDS
REFUGEE – protection visa – China – Federal Circuit Court remittal – religion – Church of Almighty God – member with family from young age – partner arrested and applicant questioned – internal relocation through church network – understanding of teachings, and activities in China and Australia – social media activity in Australia – supporting statements – country information – state oversight of religion and persecution of those which do not conform – secret meetings and use of pseudonyms – fear of perscution well-founded – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 36(2)(a), 65

Migration Regulations 1994 (Cth), Schedule 2

CASES

Abebe v Commonwealth (1999) 197 CLR 510
Chand v MIEA [1997] FCA 1198

Iyer v MIMA [2000] FCA 52; Iyer v MIMA [2000] FCA 1788

MIEA v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 220

MIEA v Wu Shan Lian (1996) 185 CLR 259

MIMA v Rajalingam (1999) 93 FCR 220

SAAD v MIMA [2003] FCAFC 65

Sivalingam v MIMA [1999] FCA 76; [1998] FCA 1167

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

  1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 24 October 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

  2. The applicant who claims to be a citizen of China, applied for the visa on 11 November 2016. The delegate refused to grant the visa on the basis that it did not satisfy sub-section 36(2) of the Act.

  3. The Tribunal (differently constituted)[1] affirmed the delegate’s decision, and that decision was set aside by the Federal Circuit Court. The matter is now before the Tribunal pursuant to an order of the Court.

    [1] AAT File no. 1728081

  4. The applicant appeared before the Tribunal on 28 November 2023 to give evidence and present arguments. The Tribunal also received written evidence in the form of statutory declarations from [Ms A] and [Mr B].

  5. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

  6. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

    CRITERIA FOR A PROTECTION VISA

  7. The criteria for a protection visa are…

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AGLC
2219303 (Refugee) [2023] AATA 4675
Case
[2023] AATA 4675
Decision Date

CaseChat Overview and Summary

The Federal Circuit Court considered the case of an applicant seeking a protection visa, who is a member of the Church of Almighty God from China. The applicant claimed to fear persecution upon return to China due to their religious beliefs and activities. The court was tasked with determining whether Australia owed protection obligations to the applicant.

The central legal issue before the court was whether the applicant had a well-founded fear of persecution for reasons of their membership in the Church of Almighty God, such that Australia would have protection obligations under the relevant legislation. This involved assessing the credibility of the applicant's claims, the nature and extent of state oversight and persecution of religious groups in China, and whether internal relocation would be a viable option for the applicant to avoid such persecution.

The court reasoned that the applicant's fear of persecution was well-founded. It considered evidence detailing the Chinese government's state oversight of religion and its persecution of groups that do not conform to official policies, including crackdowns on house churches, removal of religious symbols, confiscation of property, and the arrest and detention of religious leaders and members. The court noted the applicant's specific claims, including being warned by neighbours about potential reporting to authorities, the arrest of their partner, and the confiscation of their computer with a warning about their faith. The court also considered the applicant's understanding of the Church of Almighty God's teachings and activities, their internal relocation within China through a church network, and their social media activity in Australia. Given the evidence of systematic persecution and the applicant's specific circumstances, the court concluded that the applicant's fear of arrest and detention due to their religious beliefs was credible and that internal relocation would not adequately mitigate this risk.

Consequently, the court remitted the decision for reconsideration, indicating that the applicant's claim for a protection visa should be re-evaluated based on the findings regarding their well-founded fear of persecution.

Orders

Orders of the court

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Background

Background to the litigation

A December 2022 USCIRF factsheet provides broad commentary on ‘religious freedom violations’ in China, and notes that ‘state-sanctioned religious leaders who oppose, protest, or resist government policies run the risk of official reprisal,’ citing a high-profile arrest in 2017.[41][41] State-Controlled Religion and Religious Freedom Violations in China', Mingzhi Chen, United States Commission on International Religious Freedom (USCIRF), 19 December 2022, p. 3, 20230105101952 In a January 2023 submission to the United Nations Committee on Economic, Social and Cultural Rights, Amnesty International mentioned reports of ‘crackdowns’ on house churches across China since 2018, ‘particularly in Henan, Zhejiang, Guangdong and Heilongjiang provinces.’[42][42] 99 'China: Submission to the UN Committee on Economic, Social and Cultural Rights (2023)', Amnesty International, 17 January 2023, p. 5, 20230118112321 They noted authorities are reported to have ‘removed crosses and Christian slogans from church buildings, confiscated or vandalized church property, ordered churches to close, and questioned church leaders and members.’[43] Amnesty International’s annual report briefly refers to the ‘arbitrary arrest and detention’ of house church leaders and practitioners in 2022, among other religious adherents.[44] [43] 'China: Submission to the UN Committee on Economic, Social and Cultural Rights (2023)', Amnesty International, 17 January 2023, p. 5, 20230118112321[44] ‘Amnesty International Report 2022/23: The state of the world’s human rights', Amnesty International, 27 March 2023, p. 124, 20230328142801 Human Rights Watch provide a summary of the treatment of house church members and leaders, and impact of new government regulations, in their 2022 annual report. They report ‘[p]olice continue to harass, arrest, and imprison leaders and members of “house churches,” congregations that refuse to join official Catholic and Protestant churches’. They also state the Measures on the Administration of Internet Religious Information Services ‘have reportedly severely disrupted people’s religious life as many have increasingly relied on online religious gatherings and information especially during the Covid-19 pandemic.’[45] [45] ‘Human Rights Watch World Report 2023', Human Rights Watch (HRW), 12 January 2023, p. 153, 20230112144355 In September 2022 the Dui Hua Foundation, a US non-profit organisation focussing on Chinese political and religious prisoners, reported about what they refer to as the ‘continuous crackdown’ on house churches. The report summarised the recent closure or obstruction of house churches in Shanxi and Jilin provinces, the arrest of house church members for carrying out missionary activities in Zheijiang Province, and the sentencing of a Christian missionary in Ningxia Province for organising illegal gatherings.[46][46] 'Prisoner Updates 2022 #6', Dui Hua Foundation, 1 September 2022, 20220912122329; A review of Dui Hua holdings for the 2022 – 2023 period indicates no further reporting on house churches or other matters relating to Christians in China

Evidence

Evidence Before The Court

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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether Australia has protection obligations in respect of applicant. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Country of origins and identity There is no evidence before the Tribunal that any of the documents provided to the Tribunal is a bogus document as defined in section 5(1) of the Act. Further, based on a copy of the applicant’s passport, which was provided to the Department of Home Affairs (‘the Department’) and the Tribunal on file, and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of the Peoples’ Republic of China (or ‘PRC’) and has had her claims assessed against that country in relation to section 36(2)(a) and section 36(2)(aa) of the Act and on the basis of this evidence (currently, before the Tribunal), the Tribunal accepts and finds that the applicant’s identity as is claimed for the purposes of this decision. Protection available in another country assessed The Tribunal finds, on the evidence before it, that the applicant does not have a right to enter or to reside in a country other than China. Therefore, the Tribunal concludes and finds that section 36(3) of the Act does not apply to the applicant. Department File accessed by the Tribunal The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision record. The applicant provided a ‘copy’ of the delegate’s decision to the Tribunal with her application to review. Background – the Applicant’s migration and visa history The applicant arrived in Australia [in] August 2016 as the holder of a subclass FA-600 (Tourist visa) and on 11 November 2016 he applied for a subclass XA-866 (Protection) visa which was refused by the Department and the subject of this review but was granted the associated Bridging visa. EVIDENCE BEFORE THE TRIBUNALBackground – Applicant’s Personal details The applicant was born in [Village], Huo Zhou City in Shan Xi Province China on [Date] and is [Age]-years-of-age. He is of the Han nationality and is a Christian and a member of the ‘Church of Almighty God. The applicant said that he ‘grew up’ in Shan Xi Province with his parents and two [siblings] – a sister and a brother. The applicant is the ‘[birth order] child of the family.’ His father ‘worked as [an Occupation]’ which was located in close proximity to the family home and his mother was a dedicated housewife charged with the running of the household. The applicant’s sister is married and has one child. She resides in the ‘same area’ where all siblings were born. The applicant’s [brother] is still not married. He – the [brother] – left home to seek work and according to the applicant ‘is working’ in the Tai Yuan City which is situated in applicant ‘s home Province, Shan Xi. All members of the applicant’s family are (according to the applicant’s evidence) are practicing members of the ‘Church of Almighty God’. The applicant told the Tribunal, that he has not ‘had any communication’ with his family since he ‘left China’ [in] August 2016 because the applicant ‘fears that any communication will be intercepted by the Chinese authorities’ and the applicant ‘did not wish to put (his family) them at risk.’[2]Applicant’s claims for Protection[3][2] see: also _ Applicant’s Statutory Declaration_ dated 13 June 2021 at p.1[3] Department of Home Affairs File no. [Reference]

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The applicant was born in [Village], Huo Zhou City in Shan Xi Province China on [Date] and is [Age]-years-of-age. He is of the Han nationality and is a Christian and a member of the ‘Church of Almighty God. The applicant said that he ‘grew up’ in Shan Xi Province with his parents and two [siblings] – a sister and a brother. The applicant is the ‘[birth order] child of the family.’ His father ‘worked as [an Occupation]’ which was located in close proximity to the family home and his mother was a dedicated housewife charged with the running of the household. The applicant’s sister is married and has one child. She resides in the ‘same area’ where all siblings were born. The applicant’s [brother] is still not married. He – the [brother] – left home to seek work and according to the applicant ‘is working’ in the Tai Yuan City which is situated in applicant ‘s home Province, Shan Xi. All members of the applicant’s family are (according to the applicant’s evidence) are practicing members of the ‘Church of Almighty God’. The applicant told the Tribunal, that he has not ‘had any communication’ with his family since he ‘left China’ [in] August 2016 because the applicant ‘fears that any communication will be intercepted by the Chinese authorities’ and the applicant ‘did not wish to put (his family) them at risk.’[2]Applicant’s claims for Protection[3][2] see: also _ Applicant’s Statutory Declaration_ dated 13 June 2021 at p.1[3] Department of Home Affairs File no. [Reference] The Tribunal noted that the applicant made the following written claims in her application for Protection visa which were submitted to the Department and noted in summary form here, as follows:§The Applicant is a devoted Christian in the ‘Church of Almighty God’§In May 2014, when the applicant gathered at [Ms C] sister’s home, she was warned by [Ms C] sister’s son that if she not from the same village he would report her to [the] Public Security Bureau of China; §At another time, the applicant went to [Ms C] sister’s house, neighbours saw her and told [Ms C] sister’s son. He was going to report her to [the] Public Security Bureau, but she escaped with the help of [Ms C]; §In February 2016, her partner, [Mr D] brother, was arrested. From CCTV footage, police knew that she and [Mr D] brother passed in and out together. She now fears arrest if she returns to China; §In May 2015, police confiscated her computer, but did not find anything about her religion. They warned her that if they find evidence of her faith in God, they will arrest her; §The applicant had to seek for help to her brothers and sister (in faith) for accommodation support; §The applicant thinks if returned to China, she will be arrested by police and taken into jail because of religious belief. She moved places in May 2014, May 2015 and February 2016. The applicant claims moving places will not prevent Chinese authorities from searching for an her; §The applicant does not think the authorities will protect her. She claims, ,many brothers and sisters (in faith) were arrested and tortured by Chinese Government. Chinese Government issued a document to arrest people who believe in God.