1410411 (Refugee)

[2015] AATA 3506

1410411 (Refugee) [2015] AATA 3506 (5 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1410411

COUNTRY OF REFERENCE:                  China

MEMBER:Nicole Burns

DATE:5 October 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 05 October 2015 at 12:49pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants who claim to be citizens of the People’s Republic of China (hereafter China), applied for the visas [in] May 2013 and the delegate refused to grant the visas [in] May 2014.

3. The applicants appeared before the Tribunal on 6 November 2014 and on 14 September 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The Tribunal notes that on 5 August 2015 this case was reconstituted to a different Member. In finalising the decision the Member has had regard to the record of the proceeding of the review made by the Tribunal as previously constituted, as permitted under s.422(3) of the Migration Act 1958.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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.

6. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. 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 a protection 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 the applicant 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’).

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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.

10. The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to China, there is a real risk that she will suffer significant harm.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background and country of nationality

11. The delegate had no issues with the applicants’ identity.  The first and second named applicants provided a copy of their passports issued by the People’s Republic of China to the Department and on this basis the Tribunal is satisfied that they are nationals of China and has assessed their claims against China as their country of nationality.  The third named applicant is the [child] of the applicant parents, born in Australia in 2012 (a copy of [the] birth certificate was provided to the Department).

12. The first and second named applicants claim to be de facto partners, which the delegate accepted based on evidence that they had resided together in the past and have a child together.  She therefore accepted that the second named applicant was a member of the family unit of the first named applicant.  Before the delegate and confirmed at the Tribunal hearing, the second named applicant does not have his own claims for protection and is relying upon the first named applicant’s (hereafter the applicant) protection claims, considered below. 

    Refugee assessment

13. The applicant – a [age] year old woman from Fuqing, Fujian Province in China – claims to fear harm if she returns to China on the basis of her sexual orientation, as a bisexual. She also claims to fear harm from the authorities as a member of an unregistered Protestant ‘family’ church. 

    Sexual orientation

14. In her oral evidence to the Tribunal the applicant claims her first sexual encounter was with a woman called [Ms A] – a friend of her [relative]’s – in China when she was [a teenager] (around 2005).  Their relationship continued for six months, until her parents found out (by discovering her diary, private photographs and love letters from her girlfriend) and forbade them to see one another again, around August or September 2005.  Her father beat the applicant when he found out and continued to beat her until she left China to study in Australia in February 2007 – purportedly because her parents wanted her out of the country to avoid shame.  She was also purportedly humiliated and harassed by school mates and teachers when they came to find out about her relationship with [Ms A], which resulted in her not attending school for six months prior to departing for Australia.  The applicant also claims that she was verbally abused by a church elder and that this elder and her father forbade her from attending church gatherings. Further, she claims on a one month visit to China in January 2009 her father beat her again and members of the public threw stones at her and [Ms A] when they met up briefly.  She claims she reported this incident to the police but they did nothing and were verbally abusive to her.  She also claims to have reported her father’s physical abuse to the police – with the help of a teacher - but they did nothing, claiming it was a family matter.

15. The applicant told the Tribunal that she began a sexual relationship with the second named applicant [in] March 2009 (they had been housemates in Australia prior to that, and their parents knew each other in China) and their [child] was born [in] 2012.  The applicant said she thought she was a lesbian – noting that from a young age she was attracted to women – but realised she must be bisexual after the birth of her child.

16. The Tribunal accepts that bisexuals in China are identifiable by a characteristic or attribute common to all members of the group, namely their sexual orientation, and that this characteristic or attribute distinguishes the group from society at large in China.  The Tribunal accepts, therefore, that bisexuals can form a particular social group in China for the purposes of the Refugee Convention.  However, the Tribunal has a number of concerns about the applicant’s claims to be a bisexual as set out below, which in combination, leads it to conclude that she is not a bisexual as claimed.

17. First, at the hearing the Tribunal found aspects of the applicant’s claims about the development of her sexuality to be vague and lacking in detail.  For example she told the Tribunal that [Ms A] was the one who initiated their first sexual encounter and that they met up (secretly) at each other’s parent’s houses or the applicant’s [relative]’s house or at the park over a six month period.  However she was unable to provide any particular description or details about any other aspects of their relationship. The Tribunal is mindful that the applicant may be shy about discussing private matters, and therefore reluctant to disclose information about her personal life and sexual orientation.  Nonetheless, given this constitutes her core protection claims, the Tribunal would expect the applicant to have been able to provide more details and context.  The Tribunal also found other aspects of the applicant’s claims about the development of her sexuality implausible, for example when she told the Tribunal that she knew she liked girls more (than boys) growing up because, crying a lot, she liked to look at the women’s breasts who comforted her when she was in kindergarten. 

18. Second, the Tribunal notes that whilst on the one hand the applicant claims to be attracted to women and that this was the purported reason she was sent away from China by her parents, apart from her relationship with [Ms A] when she was [a teenager], she has not had any further sexual encounters and/or relationships with women, including in Australia where she was not bound by her parents or society’s expectations in this regard.  When asked if she tried to meet women in Australia, the applicant said that she has visited websites for homosexuals but noted that it is very hard to find someone who loves her.  However for the following reasons the Tribunal does not accept that the applicant has used various bars, websites and online ‘chats’ whist in Australia for the purposes of meeting people. She was unable to provide an example of the websites, apart from stating that she had entered ‘[the name of her city]’ and ‘bisexual bar’ and various websites had appeared. From there she talked to some women via video and audio chats, however she never met them in person because she was scared and did not want her partner (the second named applicant) to find out.  Whilst this might explain why she did not have a relationship with a woman whilst in her current (heterosexual) relationship, it does not explain why she did not seek out a relationship with a woman in the two years prior to that – i.e. from arriving in Australia in February 2007 and before [March] 2009. The Tribunal also notes that the applicant’s oral evidence to the Tribunal that she had engaged in online ‘chats’ is inconsistent with what she told the Department at interview (as recorded in the delegate’s decision record, a copy of which the applicant provided to the Tribunal on review) that she did not participate in group chats on the internet in Australia, because the second named applicant did not like it. 

19. Third, apart from the applicant’s and her partner’s assertions that she is bisexual, the applicant has not provided any other evidence to support her claims in this respect, for example statements or oral evidence from friends about her sexual orientation.  At the Tribunal hearing the applicant said she has never told “Chinese” friends in Australia about her sexual orientation but she did tell some (non-Chinese) friends at school.  She said now she stays home and looks after her child and is quite depressed.    

20. Fourth, the Tribunal found the applicant’s oral claims to have been mistreated by numerous people in China on account of her sexuality, including her teachers, fellow students, church elder and father were vague, lacking in detail and implausible at times which cast doubts about the applicant’s central claim to be a bisexual.  For example she told the Tribunal that she was bullied and discriminated at school by “everyone” and when asked who exactly, the applicant replied that students locked her in the toilet cubicles and hit her.  When asked a second time what girls and teachers the applicant replied that girls have gangs and it was the popular girls, however she was unable to provide any specific details such as the names of the girls in question, the context in which these incidences occurred or their frequency, for example.  After some probing she said that a teacher, who taught Chinese, used to hit her with a ruler in her office but did not provide any further details or context. The Tribunal also notes that the applicant did not mention that she was mistreated by her fellow school students at all in her protection visa application. 

21. Fifth, the Tribunal found aspects of the applicant’s claims was at odds with other aspects of her claims, which casts doubts on her central claim to be bisexual.  For example, on the one hand the applicant claimed that after discovering her relationship with [Ms A] her parents organised to have her sent away (to Australia) because they did not want her to bring shame on the family.  Yet on the other hand the applicant told the Tribunal that it was her parents who told the neighbours and church members about her relationship with [Ms A].  When asked why they would do that, assuming they would want to keep the matter quiet if they were ashamed as claimed, the applicant replied that the neighbours found out when her mother was crying and they also heard her father shouting at her when he hit her (as did church members when attending a gathering at their house).  The Tribunal does not find this explanation persuasive and is of the view that if the applicant’s parents were ashamed of her sexuality as claimed, they would have made efforts not to reveal her relationship with a woman to their neighbours and the church members.   

22. Finally, the Tribunal found the applicant’s evidence about meeting up with [Ms A] in January 2009 during a visit to China and being attacked by members of the public as a result (and purportedly reporting the incident to the police) to be implausible for the following reasons.  In her oral evidence the applicant told the Tribunal that [Ms A] found out where the applicant was from her [relative] and surprised the applicant at a hospital situated about an hour away from the applicant’s parents’ home (where her grandmother was an in-patient).  [Ms A] purportedly waited until the applicant was alone (that is not with her parents) before approaching her inside the hospital. They then walked outside and talked for about half an hour before going their separate ways.  In the space of a half hour the applicant claims that the following chain of events occurred: that whilst they were talking more and more people arrived who then started to throw rocks at the applicant and [Ms A] (the applicant said she was hit by a rock but did not provide any details); they ran away without being pursued; and they then went to  a police station to report the incident however the police  laughed, one of them gave them the middle finger, and told them they  were lucky they were not arrested.  The Tribunal finds it implausible that random members of the public would start throwing rocks at the applicant and [Ms A] as claimed.  The applicant said they did so because when [Ms A] first saw her she was excited and kissed and hugged her.  However the Tribunal does not find this explanation plausible, particularly given the applicant’s evidence that initially she met [Ms A] inside the hospital and also given her claims that it is dangerous to be considered a homosexual and/or bisexual in China.  Furthermore, the Tribunal found the overall account of the claimed incident – from being attacked to finding a police station in an unfamiliar city – all in half an hour to be far-fetched.  Given these concerns the Tribunal is of the view that the applicant fabricated this incident.  Given this finding the Tribunal also does not accept the applicant’s oral claims that [Ms A] told her at the time that she had been treated badly by her parents when they found out about her sexuality – including being sent [for] electric shock treatment – and that she could not find a job, and that her parents had been forcing her to date “guys”.

23. Given these considerable concerns the Tribunal does not accept the applicant’s claims that she had a relationship with a woman in the past in China.  It follows that it does not accept that she was bullied or harassed or harmed by teachers, fellow students, church members or elders or members of the public on account of her sexuality or for any reason in the past in China.  The Tribunal also does not accept that her father beat her on numerous occasions, upset about her alleged relationship with a woman, as claimed.

24. At the hearing the applicant said her neighbours harassed her when they found out about her relationship with a woman.  When asked to provide an example the applicant said one man who lived nearby used to follow her and pull down his pants in front of her, and spoke dirty words to her.  However as the Tribunal does not accept that the applicant is a bisexual and suffered harm in the past in China on this basis, it also does not accept that she was harassed by neighbours or the man who allegedly pulled down his pants in front of her and spoke dirty words to her.

25. The applicant also gave evidence that a “kind” teacher at her school, after noticing the bruising on her face from her father’s beatings, took her to the police to take out a report against her father (the police said it was not a criminal matter).  However as the Tribunal does not accept that the applicant is a bisexual and suffered harm in the past in China on this basis, it also does not accept that her father beat her for these reasons as claimed, it follows that the Tribunal also does not accept the applicant’s claims to have reported her father to the police. 

26. The applicant also told the Tribunal that a church elder ([name]) verbally abused her when he found out about her relationship with a woman (a few months after her parents did), said she was not allowed to be gay because she is a Christian and warned her that she could get AIDS.  He also forbade her to attend any more church gatherings.   However, as the Tribunal does not accept that the applicant is a bisexual and suffered harm in the past in China on this basis, it also does not accept the applicant’s claims to have been verbally abused by a church elder and prevented from attending church.

27. At the hearing the applicant said that she had heard on the news a few days prior that in Beijing or Guangzhou some gay people were beaten and blackmailed and threatened by citizens.  She said if she goes back to China and attends homosexual gatherings she has heard that the police may arrest her.  She said she does not think it is a crime to be gay and wishes she could live in a city where it is “ok” to be gay and be with someone she loves.   She said also that she knows of examples of homosexuals in China being threatened and blackmailed – for example people threatening to tell someone’s employer about their sexuality.  She said things like this happen even in big cities but it is not reported.  She has also read (on the internet) of worse case scenarios when men rape lesbians, thinking they can ‘fix’ them.  Furthermore the applicant submitted that in China men are more superior than women and even gays and lesbians look down on bisexuals because they think they know what they want but bisexuals are lost.  The Tribunal acknowledges discrimination against bisexuals (and other members of the LGBTI community) in China, however as the Tribunal does not accept that the applicant is a bisexual for reasons outlined above, it does not find that there is a real chance of persecution occurring on this basis if the applicant returns to China.   

1. The Tribunal also notes its concern about the significant delay from when the applicant arrived in Australia in February 2007 (after her claimed mistreatment in China on account of her sexuality) to the lodgement of the protection visa application over six years later.  The Tribunal does not find the applicant’s explanation offered at hearing -  that she initially thought one had to come from a war-torn country to be a refugee and that she did not know being gay could get her protection until her partner was arrested and found to be unlawful and his agent read her the definition of a refugee – adequately explains this delay, particularly given the Tribunal’s other concerns with the applicant’s credibility as set out above. 

2. For reasons set out above, the Tribunal does not accept that the applicant is a bisexual.  It does not accept that she was ever harmed, harassed or bullied by anyone in China in the past on this basis.  For these reasons the Tribunal finds that there is no real chance that the applicant will be persecuted for the reason of her membership of a particular social group of bisexuals or any other Convention-related reason if she were to return to China now or in the reasonably foreseeable future.  Her fears of persecution on this basis are not well-founded.

   Member of the ‘family’ church

3. The applicant also claims to fear persecution on return to China from the authorities because she was a member of a Protestant ‘family’ church, which she claims is considered illegal and a cult.

4. Although the applicant did not claim to fear harm on this basis in her protection visa application, the Tribunal is willing to accept that the applicant was a member of the family church in China, as are her parents.  Her oral evidence about her involvement with the church and the church’s main teachings for example was reasonably detailed and consistent with country information.  The applicant also gave evidence that she has been involved in church gatherings at members’ homes [since] her arrival in Australia; less so recently since she moved to the Western suburbs.  The Tribunal accepts that is the case and that she may continue to be involved with the church on return to China in the foreseeable future.  The Tribunal finds, based on the applicant’s evidence, that her past involvement in the church in both China and Australia has been low-level and she has not made any claims of increased involvement in the future.  However, for the following reasons the Tribunal finds the applicant does not face a real chance of serious harm from the authorities or anyone else on return to China on account of her involvement with the family church.

5. Australia’s Department of Foreign Affairs and Trade’s (DFAT) March 2015 thematic report on unregistered religious organisations (and other groups) in China assess, broadly speaking, that religion in China can be practised within state-sanctioned boundaries, as long as such practices do not challenge the interests or authority of the Chinese Government.  Religious adherents are therefore subject to a range of restrictions that vary in extent and intensity according to local conditions[1]. As discussed with the applicant at the hearing, the report states that members of both unregistered and registered religious organisations can face adverse attention by authorities when they are perceived to have links with foreign influences (either through personnel or funding); are critical of government or advocate for issues considered politically sensitive by the government; belong to a large and potentially influential networks; are engaged in other criminal activities; or are operating in provinces or local settings where corruption is prevalent, and the potential for extortion and running afoul of local authorities favour is potentially higher.[2]  The applicant has not claimed and there is nothing to indicate to the Tribunal that the family church attended by the applicant and her family in China was organised around anything more than a common interest in prayer and bible studies and singing, or that it was affiliated with any other groups based in or outside of China. 

   [1] DFAT Thematic Report, ‘Unregistered religious organisations and other groups in the People’s Republic of China’, 3 March 2015 at 2.11

   [2] Ibid at 3.3

6. The Tribunal has also had regard to independent country information about the situation for family churches in Fujian, where the applicant originates. A 2009 report on the Protestant Church in Fujian Province in a Global Chinese Ministries newsletter indicates that there are large numbers of independent house churches in Fujian. The report also indicates that “[i]n general, local government in Fujian seems fairly tolerant of unregistered believers as it is rare that one reads of cases of persecution of house-church Christians in this province.”[3]

   [3] Global Chinese Ministries 2009, ‘The Protestant Church in Fujian Province’, OMF (Overseas Missionary Fellowship) International website, April 

7. The Tribunal also notes that the executive secretary of the Hong Kong Christian Council was cited in a 2005 report by the Immigration and Refugee Board (IRB) of Canada as stating that Fujian has “the most liberal policy on religion in China, especially on Christianity” and that “he is aware of a number of unregistered churches along with Bible schools, fellowships and even missionaries that have been allowed to operate in Fujian for years”.[4] In addition, the Canadian IRB reports that authorities in Fujian “have allowed non official bishops to operate openly” and “might be more tolerant than those in other Chinese provinces”.[5]

   [4] Immigration and Refugee Board of Canada, CHN100387.E – China: Situation of Protestants and treatment by authorities, particularly in Fujian and Guangdong (2001-2005), 7 September 2005.

   [5] Immigration and Refugee Board of Canada, CHN103501.E – China: Situation of Catholics and treatment by authorities, particularly in Fujian and Guangdong (2005 – 2010), 6 July 2010.

8. The Tribunal also notes that Fujian is rarely mentioned in reports on breaches of religious freedom by the US Department of State, the United States Commission on International Religious Freedom, Amnesty International, Human Rights Watch or the various Christian NGOs that report on China.

9. When the situation for Christians in Fujian was discussed at the hearing the applicant said she thinks that they do not really know what is going on in Fujian because many things go unreported.  She said she has heard from church members from Fujian at church gatherings in [Australia] that most of them were mistreated in China.  She added that many things do not get reported in China; that her church is different from the three self patriotic churches; and that in China if the government wants you to be silent, you have to be silent.  Also, the Chinese government does not want any criticism from Western countries.

10. Based on the country information referred to above showing a consistent lack of reporting about Fujian as a site of arrests, detention and church closures associated with unregistered Christian churches and the applicant’s own evidence that she has not experienced any problems from the authorities as a member of the family church in Fujian in the past, the Tribunal finds the chance the applicant would be seriously harmed by the authorities on return to China as a low-level member of the family church to be remote.  Her fears of persecution on this basis are not well founded.

11. The applicant told the Tribunal that her parents were brought in for questioning by the police on one occasion when she was a child, purportedly because of their involvement with church gatherings, but released because they did not have “clear evidence”.  She also mentioned that a church elder – [name] – whom she had met at gatherings in the past, was arrested and detained one time in China and they took away all the bibles. She was unable to recall when this incident happened or how long [the church elder] was detained for, except that it was for a “period of time.”  Given these claims were raised for the first time at the Tribunal hearing, the Tribunal is of the view that the applicant embellished these aspects of her claims.  The Tribunal does not accept the applicant’s claims that her parents were questioned by the authorities and that a church elder she knew was detained by the authorities.

12. The Tribunal notes that at the hearing the second named applicant said his mother currently lives in Fujian and his father is currently in Australia, having initially arrived here on student guardian visa. His father applied for a protection visa which the second named applicant thinks was unsuccessful. Asked why his father sought protection, the second named applicant said because when they were having a church gathering at home some people came and destroyed the home and his grandmother went mad.  Asked if his parents belong to a church in China, the second named applicant replied that he was not sure.  Asked if he belonged to a church in China the second named applicant replied that he did not go often.  He also said that he sometimes goes to church in Australia.  When asked if he holds any fears on return to China in relation to his involvement with the church the applicant replied “no”.  On this basis the Tribunal finds the second named applicant has no subjective fear of persecution for reasons of his or his parent’s involvement with the church on return to China.

    Other matters:-

13. At the Tribunal hearing the applicant said she would not be able to pay the fine required to have her [child] (the third named applicant) registered on return to China because [the child] was born out of wedlock, which is necessary for her [child] to be able to attend school.  The applicant was not sure what the fine would be, but speculated that it could be “thousands” (Renminbi).  She said labour is cheap in China and she does not have specific skills.  She also claimed that her parents will not support her (given her sexuality), or her partner’s parents who have not treated her nicely since they found out she was gay, including purportedly being hit by her partner’s father on one occasion in Australia.  The Tribunal accepts that the applicant has a child born out of wedlock and that it is likely that she will be required to pay a fine to have her child registered on return to China.  However, as the Tribunal does not accept the applicant’s claims to be bisexual and to have suffered discrimination and harm in the past in China on that basis, it follows that the Tribunal also does not accept that her parents or her partner’s parents will refuse to financially support her on return to China in order to register her [child].  The Tribunal is satisfied that the applicant will be in a position to pay the fine and finds there is no real chance of serious harm to any of the applicants on account of the third named applicant being born out of wedlock and being an unregistered child on return to China now or in the reasonably foreseeable future.

14. At the Tribunal hearing the applicant claims that she fights a lot with her partner – the second named applicant – and that he has hit her many times.  She said he is better since she reported him to a domestic violence organisation (through [a charity]) a few months ago and someone came and talked to him.  She said he has a bad temper.  She said that he used to protect her and not discriminate against her but he has changed and now he is different.  In her protection visa application the applicant states that her “husband” hit her once because she talked too long over the telephone with a known lesbian ([name]) and he thought she was going back to the old way.  Whilst the applicant’s claims in this regard are clearly concerning, the Tribunal notes that she has not provided any evidence – for example from the domestic violence organisation she purportedly engaged – to substantiate her claims.  Also, given the Tribunal has not accepted the applicant’s claims about being a bisexual, it does not accept that her partner has harmed her in the past for this reason.  The Tribunal also notes that at the hearing the second named applicant said that if the review is unsuccessful he will return to China with his [child] and the applicant will remain in Australia.  The applicant was also uncertain about the status of their relationship in the future when asked at the hearing, particularly if the application is unsuccessful.  The Tribunal is not satisfied on the basis of this evidence that the applicants will remain partners on return to China.  The Tribunal therefore finds that the chance of the second named applicant seriously harming the first named applicant on return to China now or in the reasonably foreseeable future to be remote.     

15. As mentioned, the applicant claimed that she was depressed at the hearing.  Asked whether she has seen anyone about her depression or if she takes medication, the applicant said that she needs sleeping pills at night and went to the doctor about her headaches.  She added that a new organisation – [name] – is supposed to be organising a psychological appointment for her, but she has not yet heard from them.  Apart from the applicant’s assertions, there is no evidence before the Tribunal to indicate that the applicant is depressed and the Tribunal therefore does not accept that is the case.  The Tribunal is also satisfied that the applicant’s ability to participate in the hearings was not affected by any mental health issues.

16. Finally, the Tribunal notes that there is information on the Departmental file indicating that the Department received two anonymous allegations against the applicant (and her partner) about their protection visa claims and overall credibility [in] May 2013 and [in] November 2013 (as put to the applicant for comment in a letter from the Department [in] May 2014).  The Tribunal notes these allegations, however as they are anonymous and unsubstantiated, the Tribunal gives them no weight (as discussed at the hearing).

    Conclusion – Refugee grounds

17. Having considered the applicants’ claims individually and cumulatively, for reasons set out above, the Tribunal finds that the applicants do not face a real chance of persecution on return to China for any Convention reason in the reasonably foreseeable future and that their fear of persecution is not well-founded.

18. For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a).

    Complementary protection assessment

19. In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. 

20. In this case, the Tribunal has found that the applicant is a national of China and the Tribunal therefore finds that China is the ‘receiving country’ for the purposes of s.5(1).

21. For reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant will suffer serious harm if she returns to China now or in the foreseeable future on the basis of her membership of a particular social group of bisexuals or her (Christian) religion, or as a victim of family violence or for any other reason.  In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[6]  For the same reasons the Tribunal does not accept that there is a real risk the applicant will suffer significant harm on these basis as a necessary and foreseeable consequence of the applicant being removed from Australia to China. 

    [6] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].

22. With respect to the second named applicant, for reasons set out above the Tribunal has found that he does not hold any subjective fears of persecution on the basis of his or his parents’ Christian religion.  Nonetheless, the Tribunal has considered if the second named applicant faces a real risk of significant harm on return to China on account of his past (low-level) involvement with the church.  At the hearing the second named applicant said he did not go to church often and on this basis the Tribunal finds that he had a low-level of involvement in the church.  He did not claim that he would be involved in the church in the future if he returns.  Having regard to the country information about the situation for Christians in China and for those practising in Fujian in particular as set out above, the Tribunal finds there is no real risk of the secondary applicant facing significant harm on the basis of his low-level involvement in the church if returned to China. 

23. As mentioned, the Tribunal notes at the hearing the second named applicant said that his father, who accompanied him to Australia on student guardianship visa, applied for a protection visa onshore because when having a church gathering at their home some people came and destroyed the house and his grandmother went mad.  When asked if his parents belonged to a church in China the second named applicant said he was not sure and mentioned that it was a long time ago and that they moved.  Based on his vague evidence and the fact that he raised this for the first time at hearing the Tribunal is not satisfied that the second named applicant’s parents were members of the church in China and suffered harm as a result.  It follows that the Tribunal is not satisfied that the second named applicant faces a real risk of significant harm on account of his parent’s involvement in the church as a necessary and foreseeable consequence of the second named applicant being removed from Australia to China.

24. For reasons set out above the Tribunal has rejected the applicant’s claims that she would not be able to pay a fine imposed to register her [child], who was born out of wedlock, on return to China.  For the same reasons the Tribunal is satisfied that none of the applicants  face a real risk of significant harm on this basis on return to China.

25. Having regard to the applicant’s claims both individually and cumulatively, the Tribunal does not accept on the evidence before it, that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China that there is a real risk she will suffer significant harm. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s.36(2)(aa).

    CONCLUSION

26. For the reasons given above the Tribunal is not satisfied that the applicants are a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

    DECISION

27. The Tribunal affirms the decision not to grant the applicants Protection visas.

    Nicole Burns

    Member