2402079 (Refugee)
[2025] ARTA 790
•23 January 2025
2402079 (REFUGEE) [2025] ARTA 790 (23 JANUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2402079
Tribunal:General Member S Waring
Date:23 January 2025
Place:Brisbane
Decision:
The Tribunal affirms the decision under review.
CATCHWORDS
REFUGEE – protection visa – China – religion – Church of Jesus Christ of Latter-Day Saints – paying for prostitution – humiliation – education – employment – fear of detention – delay in applying for protection – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth), s 106
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 348, 499
Migration Regulations 1994 (Cth), Schedule 2CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 January 2024 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of China, applied for the visa on 22 February 2023. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee or complementary protection criteria in s36(2)(a) and s36(2)(aa) of the Act.
On 8 February 2024 the applicant lodged an application for review with the former Administrative Appeals Tribunal (the AAT). The applicant provided a copy of the delegate’s refusal decision as part of the review application.
On 14 October 2024 the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal.
The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
If a proceeding was commenced in the AAT but not finalised before 14 October 2024, it will be continued in the Tribunal in a manner that is efficient and fair. This decision and statement of reasons is made by the Tribunal.
The issue to be considered in this case is whether the applicant engages Australia’s protection obligations under the refugee criterion or the complementary protection criterion prescribed in the Act.
As a preliminary matter the Tribunal must consider whether the Tribunal should proceed to determine the review application without holding a hearing.
Decision without a hearing
For the reasons outlined below, I have decided to make a decision in relation to the application for review without holding a hearing.
Having lodged his application for review with the AAT on 8 February 2024, the applicant made no contact with the AAT or the Tribunal in relation to its progress until he was notified that a hearing date had been set.
On 31 October 2024 the Tribunal sent a Notice of Hearing to the applicant advising that his matter had been constituted to a Tribunal member. It was requested that he complete and return, an attached Response to hearing notice form.
The Notice of hearing invited the applicant to a hearing on 29 November 2024 to give evidence and present arguments. The hearing notice stated that if the applicant requests the Tribunal to make a decision without a hearing, and the Tribunal proceeded to make a decision because it considers the issues can be determined in his absence, this does not guarantee that he will receive a favourable decision. The Notice of hearing invited the applicant, if he had not already done so, to provide all documents to be relied on to support his case by 22 November 2024.
The Tribunal is satisfied that the Notice of hearing was valid and that the applicant did not submit documents to the Tribunal after the notice was issued.
On 22 November 2024 the applicant contacted the Tribunal by email stating “I will not participate in the hearing, and consent to the Tribunal making a decision on the papers without taking further steps to allow me to appear.”
The Tribunal is satisfied that this method of declining the hearing invitation meets the requirements of s 106(3)(b)(ii) of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act) and, subject to other criteria, enlivens the Tribunal’s discretion to consider a determination of this application according to s 106 of the ART Act.
In s 106(3) the ART Act outlines some circumstances in which the Tribunal may reach a decision without a hearing. The first requirement is that (as in this case[1]) the only parties to the proceeding are the applicant and a non-participating party to the proceeding or the hearing of the proceeding [s 106(3)(a)] .
[1] Section 348A(1) of the Act provides that the Minister is taken to be a non-participating party to a proceeding for review of a reviewable protection decision for the purposes of the ART Act
As set out above, the Tribunal is satisfied that the requirements of s 106(3)(a) and s 106(3)(b)(ii) of the ART Act have been met.
Additionally, s 106(3)(c) of the ART Act requires that it must appear to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding. The term ‘adequately determined’ is not defined in the ART Act.
At issue in this case is whether the applicant engages Australia’s protection obligations under the refugee criterion or the complementary protection criterion set out in the Act.
Having examined the materials submitted for consideration, the Tribunal is satisfied that this application does not give rise to any novel questions of fact or law and further, that it is reasonable to infer that the applicant has presented the case he wishes to present and that he does not wish to elaborate further on his claims.
The Tribunal is satisfied that in the particular circumstances of this case, the issues requiring consideration can be adequately determined in the absence of the parties. This matter has therefore been determined on the evidence available to the Tribunal.
BACKGROUND
The applicant is [an age]-year-old male, arrived in Australia [in] May 2019 on a student visa having previously made one trip to Australia.
According to the protection visa application, the applicant was born in Heilongjiang Province where he resided (in [his home town]) until [January] 2019. He then visited Australia for one week in February 2019, returned to China and moved to Australia in May 2019 to undertake high school studies with the financial support of his father. He states that he has never been employed.
The applicant listed a single address in [Suburb 1] QLD as his only in Australia since [January] 2019.
The applicant states his ethnicity is Chinese and he is a member of the Church of Jesus Christ of Latter-Day Saints. His parents are citizens of China. He states that he is not in contact with relatives outside of Australia and does not have relatives or personal contacts in Australia.
Regarding his protection claims generally, the applicant indicates that he wishes to live in Australia because he will be free from humiliation and the limited school and work opportunities available to him in China . He states that he paid for sex with a woman who is a prostitute (an action not allowed in China) and when he was caught by police all the people in the town knew about it and would not talk to him.
In his protection visa application, the applicant states he experienced harm in China and could not seek help because paying for sex with prostitutes is treated as disgraceful and dirty in China. He states that nobody wants to listen to his appeals since he did this and got caught by the police.
In describing the harm he suffered in China, the applicant states (extracted verbatim):
I have humiliated experience which has destroyed my personal dignity. Nobody would like to talk with me and I’m not allowed in school and no companies would like to employ me. I was totally despised and hurted deeply psychologically.
Regarding the nature of harm he believes is likely if he returns to China, the applicant states (extracted verbatim):
I would continue to face supspective investigations from the local authorities and the police. I will get to put in jail and lock up for long time and no freedom.
Evidence before the Department and the Tribunal
No interview with the applicant was undertaken by the Department. Before the decision under review was made, the Department wrote to the applicant on 10 November 2023 raising specific concerns about claims made in the protection visa application and his delay (3 years post-arrival) in applying for protection. To address those concerns, the applicant was requested to provide supporting evidence and further detail of his claims. As the applicant did not respond to that request, the evidence taken into account by the Department included:
·the applicant’s protection visa application.
·supporting documents including personal identifiers sighted as part of an identification test.
Movement records of the applicant’s entries into Australia are also before the Tribunal.
The totality of evidence before the Tribunal is discussed and examined below.
CONSIDERATION OF CLAIMS AND EVIDENCE
Applicant’s claim to fear harm in China
In his protection visa application, the applicant has set out his claims for protection. These are summarised as follows:
·He suffered humiliation, psychological harm and a loss of dignity when caught by police for (what is viewed in China as) a “disgraceful and dirty action”.
·He was caused harm by the reactions of his school and the people in his town who would not speak to him or allow him to continue at his school. He was unable to seek help in this situation and the Chinese household registration policy limited his opportunity to move away from his hometown.
·He fears further mistreatment within the community if he is returned to China. He believes the stigma of his actions (and the involvement of police) will restrict his work opportunities in China.
·He believes he will have no freedom if returned to China and thinks he will get locked up in jail for a long time.
Criteria for protection visa
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.
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.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
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 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.
REASONS AND FINDINGS
The issue in this case addressed below, is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or under the complementary protection criterion.
In determining this issue, the Tribunal has considered the information, evidence and statements supporting the applicant’s claims contained on the basis that it is for an applicant to make their own case.
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist applicants in specifying, any particulars of their claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
As mentioned above, the Department raised concerns in writing about an unexplained delay in the applicant applying for a protection and a lack of substantiating details for protection he made in the application. The Department invited the submission of documentary evidence of police involvement in the incident alleged by the applicant, including copies of any arrest warrants or charge sheets that were issued to him. The protection visa application was submitted 45 months after the applicant arrived in Australia. The Department invited the applicant to explain why he had allowed so much time to pass.
The applicant’s account of having been apprehended by the police (and shunned by his community) because he was caught after having sex with a prostitute is considered, by the Tribunal, to be vague and limited . The Tribunal forms this view because :
·the applicant’s involvement with the police at the time of the alleged incident (or at all) is unsupported by any probative evidence.
·The applicant’s claims that the alleged incident attracted an adverse reaction by the community is unsupported by any probative evidence.
·the applicant has not identified the perpetrators of his humiliation or described instances when this occurred.
·no evidence is provided from school records (or correspondence) to establish that the applicant was excluded from his school.
The applicant’s account of having suffered psychological harm in China is considered, by the Tribunal, to be vague and limited. The Tribunal forms this view because :
·no statements have been provided by the applicant’s parents or his school, regarding his state of mind following the alleged incident.
·no evidence is provided of any counselling, medical or psychological treatment sought by the applicant (following the alleged incident) as a result of his feelings of humiliation, loss of dignity and exclusion by the community.
Based on the available evidence, the Tribunal is not satisfied that the alleged incident, apprehension by the police or psychological harm occurred as claimed. It follows that the Tribunal is not satisfied that, if returned to China, the applicant would suffer psychological harm or be to subject social isolation (or limited education/work opportunities) due to the alleged incident.
Based on the above findings and the applicant’s delay in applying for protection after arriving in Australia (45 months), the Tribunal is not satisfied that the applicant holds a genuine fear of police investigation and long-term detention if he returns to China.
Having regard to the above findings, I am not satisfied that there is a real chance that the applicant would be harmed or persecuted by reason of the alleged incident in the reasonably foreseeable future if he were to return to his home area in China.
As I have not accepted that the applicant has suffered (or will suffer) harm in China or that he holds a genuine belief that he would be subject to police investigation and long-term detention if he returns to China, I conclude that he does not have a well-founded fear of persecution as defined in s 5J of the Act and is not a refugee within the meaning of s 5H(1) of the Act. It follows that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act.
The Tribunal now turns to consider the alternative protection criterion in s 36(2)(aa) of the Act.
Having regard to the findings and observations above, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal to China, there is a real risk that the applicant will suffer significant harm in connection with the alleged incident or his alleged apprehension by police.
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 criterion in s 36(2) of the Act.
The applicant has not raised any other reason why he fears returning to China and based on the available information I find that no additional protection claims arise in this case.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
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.
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