2432398 (Refugee)
[2024] ARTA 149
•10 December 2024
2432398 (Refugee) [2024] ARTA 149 (10 December 2024)
Decision and
Reasons for Decision
Respondent:
Minister for Immigration and Multicultural Affairs
Tribunal Number:
2432398
Tribunal:
General Member T H R Baggiano
Date:
10 December 2024
Place:
Brisbane
Decision:
The Tribunal affirms the decision under review.
CATCHWORDS
REFUGEE – protection visa – China – religion – member of underground Christian church – beaten by police – fear of harassment, persecution and jailing – no further information or documentation provided and consent to decision without hearing – responsibility to specify all particulars and provide sufficient evidence – undetailed claims and no personal insight into beliefs and practices – unhindered departure on valid passport – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Administrative Review Tribunal Act 2024 (Cth), ss 106(3), 348(1)
Migration Regulations 1994 (Cth), Schedule 2
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.
_________________________________________________________________________________ In accordance with s 369 of the Migration Act 1958 (Cth), the Tribunal will not publish any statement which may identify the applicant or any relative or dependant of the applicant.
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 26 August 2024 to refuse to grant the applicant a protection 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 15 February 2024. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act.
BACKGROUND
The applicant is a [Age]-year-old national of China. [In] November 2023, the applicant arrived in Australia on a Visitor (subclass 600) visa.
Procedural History
On 15 February 2024, the applicant applied for a protection visa.
On 26 August 2024, the delegate refused the application for a protection visa.
On 7 November 2024, the applicant was sent a ‘Notice of Hearing’ letter by the Tribunal, advising that a Tribunal Member had been appointed to hold a hearing and make a decision about her review application. The letter notified the applicant of a hearing to be held on 10 December 2024. The letter requested that the applicant provide all documents she intends to rely on to support her case by 3 December 2024. The letter also advised the applicant that she may use the enclosed ‘Response to hearing notice’ form to request the Tribunal to make a decision without a hearing, noting that if she was to request the Tribunal to make a decision without a hearing, and the Tribunal proceeds to make a decision because it considers the issues can be determined in her absence, this does not guarantee the applicant will receive a favourable decision. The letter requested the applicant read and complete the ‘Response to hearing notice’ form and return it to the Tribunal within seven days.
On 3 December 2024, the applicant was sent an SMS reminder that the hearing was listed on 10 December 2024 at 9:30am and that if she had not replied to the ‘Notice of Hearing’ letter, she should do so immediately.
On 3 December 2024, the applicant returned the ‘Response to hearing notice’ form to the Tribunal. The applicant ticked the box indicating that she “will not participate in the hearing, and request the Tribunal to make a decision on the papers without holding a hearing”. In addition, at Part 2, section A of the ‘Response to hearing notice’ form, the applicant stated, “I don’t want to go to court for an [sic] hearing interview but please make a decision on paper”. The same words were duplicated at Part 2, section B of the ‘Response to hearing notice’ form. The applicant did not provide any further information or documents.
In the circumstances, the hearing was cancelled and the Tribunal proceeded with a decision on the papers for the reasons set out below.
Making a decision without a hearing
The circumstances in which the Tribunal may reach a decision without a hearing in respect of a reviewable decision is set out in s 106 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act). Section 106(1) provides that the Tribunal may make its decision in the proceedings in relation to the application after considering the documents and things given to the Tribunal and without holding the hearing of the proceeding if any of subsections (2) to (5) applies.
Section 106(3) of the ART Act stipulates that the Tribunal may make a decision without holding a hearing in circumstances where the only parties to the proceeding or hearing of the proceeding are the applicant and the non-participating party, the applicant requests the Tribunal to make its decision without holding a hearing, and the Tribunal is satisfied the issues for determination in the proceeding can be adequately determined in the absence of the parties of the proceeding.
Section 384A(1) of the Act stipulates 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. I note that this matter involves only the applicant and a non-participating party, being the Minister for Immigration and Multicultural Affairs.
On 3 December 2024, the applicant requested that the Tribunal make a decision without holding the hearing of the proceedings.
I note that the Tribunal has before it a copy of the Department’s file, which includes the applicant’s protection visa application form and the delegate’s decision record. Based on this information, the Tribunal is able to determine the applicant’s identity and receiving country. It is also able to form conclusions about whether the applicant meets the criteria for a protection visa under ss 36(2)(a) and 36(2)(aa) of the Act without seeking further evidence or submissions from the applicant. It is acknowledged that ss 36(2)(b) and (c) of the Act may also be issues for determination in the proceeding, but in this particular case, there is no evidence to suggest that those criteria are met.
Following the lodgement of the applicant’s protection visa application, she was provided with multiple opportunities by the Department on 15 February 2024 (automated acknowledgement letter), 7 March 2024 (acknowledgement of valid application letter), 2 July 2024 (request for further information letter) and by the Tribunal on 18 September 2024 (acknowledgement of review application letter) and 7 November 2024 (notice of hearing letter) to submit further information and documents. The applicant has not submitted any further information or documentation in respect of her protection visa application and has declined to participate in the hearing.
I am of the view that the applicant has been given sufficient opportunities to provide information and documentation to support her application, has been made aware of the possibility of an unfavourable outcome if a hearing is not held, and does not seek to clarify nor supplement the information she has already provided in relation to her claims for protection.
On the basis of the above information and relevant criteria in s 106(3) being met and in accordance with the applicant’s request, I am satisfied that the matter can be adequately determined without conducting a hearing.
EVIDENCE
18.I have taken into consideration evidence from the Department’s file. As noted above, the applicant has not provided any further information or documentation in support of her claims since submitting her protection visa application to the Department on 15 February 2024.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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 matter is whether the applicant is a person to 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.
For the reasons set out below, I have concluded that the decision under review should be affirmed.
Does the applicant satisfy the refugee criterion for protection?
The applicant provided to the Department a copy of her passport, issued by the People’s Republic of China’s MPS Exit & Entry Administration office. On this basis, I am satisfied that the applicant is a national of China, and that China is the receiving country for the purposes of considering her protection claims.
The applicant claims in her protection visa application that she departed China due to being maltreated and victimised by the Chinese authorities for believing in Jesus Christ as God and for praying in an underground church. Her protection visa application indicates that she belongs to the [Church].
In summary, the applicant provided the following details in her protection visa claims in relation to her experiences in China:
a.she tries to pray anywhere out of view of the government;
b.her belief far supersedes China’s communist version of God;
c.she was brutally beaten by a few policemen carrying batons which left her in an infirmary for a few days.
d.she sought help from family, good friends and church people;
e.she did not try to move to another part of the country to seek safety as this would have “put her on the defensive”;
f.she did not go to the police or state authorities for assistance as they were the ones that caused her harm and threatened her.
In summary, the applicant claims that upon return to China:
a.she would likely experience more harassment, persecution and oppression;
b.she would likely be jailed for a long time because she had contradicted the paper she had to sign for renouncing her faith;
c.she could not relocate within China to an area where she would not be harmed as “it would be the same anyway in China” and because “China does not expecting or believing in Jesus Christ as God”.
The applicant has not provided any further information or evidence in support of her application. She has not done so despite being prompted by the Department and the Tribunal on multiple occasions as outlined in paragraph 15. The applicant has also declined to attend the Tribunal’s scheduled hearing and sought for the matter to be determined in her absence.
I note that s 5AAA of the Act states that it is the responsibility of the applicant to specify all particulars of their claim and to provide sufficient evidence to establish the claim. Although the concept of onus of proof is not appropriate to administrative inquiries and decisionmaking, the relevant facts of the individual case will have to be supplied by the applicant in as much detail as is necessary to enable the decision maker to establish the facts. A decision maker is not required to make the applicant’s claim for them. Nor is the Tribunal required to accept uncritically any and all of the allegations made by an applicant.[1]
[1] s 5AAA of the Act; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451].
In relation to the applicant’s claims that she was a practising Christian and a member of the [Church] who attended an underground church in China, I do not accept these claims on the basis that her evidence does not show any personal insight into her beliefs, how she worshipped, how often she worshipped and why her belief superseded “China’s communist version of God”. It follows that I do not accept that the applicant was beaten by policemen, asked to renounce her faith nor that she sought help from family, friends and church people as these claims were limited and lacking in detail, including the dates and locations during which the events took place and reasons for the assault.
As I do not accept that the applicant is a Christian nor that she attended an underground church, it also follows that I do not accept that she will experience harassment, imprisonment, persecution and oppression by police and state authorities upon returning to China as claimed.
Additionally, the applicant was able to depart China [in] November 2023 on a valid passport which was not cancelled or confiscated by Chinese authorities despite her claim that she had come to the attention of the authorities and been beaten by them due to practising her faith. An exit ban was not imposed on the applicant as evidenced by her ability to depart China and enter Australia and corroborated by the applicant’s movement records (issued by the Department) showing lawful entry into Australia. Country information indicates that individuals of adverse interest to the Chinese authorities may be placed on an exit control list making it very unlikely, probably impossible for them to leave China.[2] The applicant’s ability to freely depart China may indicate that she was not of adverse interest to Chinese authorities because of her religion at the time she departed the country.
[2] DFAT Country Information Report – People’s Republic of China’, Department of Foreign Affairs and Trade, 21 December 2021, p. 40.
After lodgement of the applicant’s protection visa application, the Department issued a request for the applicant to provide evidence that she is practising her religion in Australia. No further evidence or documentation was provided. As such, I do not accept that the applicant is a practising Christian in Australia, nor that she will practise Christianity in China.
I am therefore not satisfied that there is a real chance that the applicant would be persecuted for reasons of race, religion, nationality, political opinion or because of membership of a particular social group, as outlined in s 5J(1) of the Act, in the reasonably foreseeable future for any of the reasons she claims. I am not satisfied that the applicant has a well-founded fear of persecution as defined under s 5J of the Act. I am also not satisfied 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 chance that she will suffer serious harm for the reasons she claims.
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
Under the complementary protection provisions, I will need to consider whether the applicant has a real risk of suffering significant harm upon return to China.
‘Significant harm’ is exhaustively defined in the Act. A person will suffer significant harm if they will be arbitrarily deprived of their life, or the death penalty will be carried out on the person, or the person will be subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[3] I have not accepted, for reasons, set out earlier, that the applicant is a Christian and member of the [Church] who attended an underground church, was subjected to any harm by police and state authorities, nor that she will be subjected to harm by police and state authorities upon returning to China. For the same reasons, I am not satisfied that there is a real risk of any of the kinds of significant harm set out in the Act.
[3] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
Therefore, I am not satisfied 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 of significant harm.
I do not consider the applicant is a person in respect of whom Australia has complementary protection obligations under s 36(2)(aa).
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).
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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