1414123 (Refugee)

[2016] AATA 3219

1414123 (Refugee) [2016] AATA 3219 (29 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1414123

COUNTRY OF REFERENCE:                  China

MEMBER:Christine Cody

DATE:29 January 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 29 January 2016 at 5:35pm

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

BACKGROUND[1]

[1] The background is sourced from the application forms, the statement, and the delegate's decision record provided to the Tribunal by the applicant.

1. The applicant is a [age] year old male who claims to be a citizen of the Peoples’ Republic of China (China). He seeks to be granted a Protection visa under s.65 of the Migration Act 1958 (the Act) on the grounds that he is a refugee or entitled to protection under Australia’s complementary protection provisions.

2. He claims that he arrived in Australia before [April] 1995 on a false passport. He remained in Australia, and then applied to the Department of Immigration for his first protection visa [in] April 1995, seeking recognition as a refugee. He made political claims, relating to the student movement of 4 June 1989; he had been arrested and detained[2].

   [2] As told to the current Tribunal.

3. His first protection visa application was refused and he began a series of unsuccessful appeals (to the Refugee Review Tribunal, to the then Federal Magistrates’ Court, as well as a Ministerial application). His bridging visa expired [in] March 2004. He remained in the community unlawfully from [March] 2004. 

4. Section 48A imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused. On 24 March 2012, the complementary protection provisions were introduced. On 3 July 2013, the Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 (hereinafter referred to as “SZGIZ”) held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa.

   The current protection visa application

5. The applicant applied to the Department of Immigration a second time for a protection visa pursuant to SZGIZ [in] October 2013. The applicant received assistance from a registered migration agent in relation to the application before the Department, although that agent did not represent him. The applicant was not represented by an agent in relation to the review.

6. The applicant’s claims are set out in his protection visa application and statement lodged with the Department; his national identity card and other supporting documents referred to below were also provided to the Department. The file also contains a copy of the recording of the interview with the delegate [in] July 2014 to which the Tribunal has listened; and the delegate’s decision record (which refers to his evidence given at interview as well as country information).

7. According to his statement, his claims are that:

   ·     He comes from a rural area in Fujian Province. He came to Australia in 1995 using a false passport. He claims that he stated the true facts when he lodged his first protection visa application (making refugee claims).

   ·     The applicant fears being harmed by the Chinese authorities as a Yiguan Dao practitioner.

   ·     He began practicing Yiguan Dao in July 2003 on the advice of a person from his hometown. He was baptised.

   ·     He began to preach Yiguan Dao to others, including to his wife and son (who were in China) who both converted to it. They set up a home temple in their hometown where some of his other relatives also practiced. After the government discovered the temple they kept on preventing them from holding congregations. His wife and mother were taken by the village security to be questioned. In 2009 his family lodged an application to register their temple, but the government rejected the application. The temple attracted over [number] people. They invited people from [Country 1] which made the government very angry. There were constant raids and threats, and the government sealed the temple after a number of raids, and confiscated posters and utensils, and issued a fine.

   ·     In 2012 the applicant gave books on Taoism to a friend to take back to China. These were confiscated on return; the applicant has been identified, and his home in China searched. The applicant is the subject of an investigation.

   ·     Members of the temple signed a petition in early 2013 against the government action in sealing the temple; the applicant also signed the petition through the internet. The petition was ignored. The temple members placed a video, critical of the local government, on the internet. This led to the police surrounding the members. Many members, including his wife, were arrested. Others, including his son and brother, were injured.

   ·     He wishes to continue spreading Yiguan Dao, however as it is classified as a cult by the Chinese authorities, he will face persecution if he does so in China. He wishes to remain in Australia. He is a skilled [Occupation 1] and he wishes to contribute to Australia.

8. The applicant’s evidence at interview [in] July 2014 includes the following[3]:

   [3] References to what occurred at the interview are sourced from the delegate’s decision record provided to the Tribunal by the applicant unless otherwise stated.

   ·     He accepts the findings in relation to the claims in his first protection visa application. He stands by his claims but considers the police will not pursue the matter any longer as it was a long time ago.

   ·     He agreed that’s he knew how to find an immigration agent and that he had previously made an application to the Minister of Immigration. He claimed however, that he did not know he could apply to the Minister in relation to his Yiguan Dao practice. He did not ask a migration agent about this.

   ·     He agreed that he had remained in Australia unlawfully, and continued working.

   ·     He did not take up Yiguan Dao in order to remain here and work; it was a separate issue.

   ·     He provided some aspects of the initiation ceremony including the three treasures and heavenly secrets.

   ·     He was initiated by a senior Yiguan Dao member from [Country 1]. He attends the Yiguan Dao temple twice per month along with other adherents.

   ·     He can promote Yiguan Dao but he cannot become an initiate without long study and practice.

   ·     He told his family in China about Yiguan Dao in 2006 and that year an initiator came from [Country 1] and stayed for three months in China and his family and others were initiated.

   ·     Around [number] people, 10 to 20 at a time, attended the Temple at his wife’s house every Saturday from 2006 to 2009. Other initiators have come from [Country 1] whom the police have intimidated and threatened.

   ·     His wife was detained for one month after the protests by Yiguan Dao members in 2013. The applicant had a friend put up a protest on the internet; he doesn’t know where, the protest has been taken down.

   ·     His family, including his children who are both working, have continued to practice. He wants to promote Yiguan Dao but it is illegal in China.

9. The delegate refused to grant the visa [in] July 2014. The delegate considered that his account of commencing Yiguan Dao in 2003 after several failed appeals in his first protection visa application to be strongly coincidental. Despite knowing that he could appeal to the Minister and knowing how to find a migration agent, he did not raise his practice of Yiguan Dao with the Department or the Minister. Instead he remained unlawfully and continued working. While the delegate accepted that he had attended Yiguan Dao sessions in Australia, he considered that he was willing to engage in whatever conduct he considers will suit his purpose, which includes fabricating claims. Thus his Yiguan Dao practice was for the purpose of strengthening his claims (s.91R(3) of the Act), he came to Australia to work, has continued to work unlawfully through a 9 year period, and he wishes to continue doing so in the future. He made a further protection visa application as the opportunity arose through SZGIZ. The delegate did not consider that he was a committed practitioner of Yiguan Dao nor that he would seek to practice Yiguan Dao in China. Even if he did, the delegate noted that according to his own claims, a large number of Yiguan Dao members attend the temple established by his wife and have continued to do so for 8 years with little attention beyond harassment; he also claimed that the initiators have continued to attend the temple from [Country 1]; the delegate considered that his claims would indicate that he could practice without persecution. However, the delegate did not accept he was credible, nor a genuine practitioner of Yiguan Dao.

10. This is an application for review of the delegate’s decision. In accordance with Ministerial Direction No. 56, the Tribunal has also taken into account the country information assessments prepared by DFAT expressly for protection status determination purposes, DFAT Country Information Report PRC, 3 March 2015 (“the DFAT report”), and DFAT Thematic Report Unregistered Religious Organisations and Other Groups in the People’s Republic of China (“the DFAT Thematic report”), 3 March 2015, both of which the Tribunal is required to consider.

11. The Tribunal file contains a copy of the delegate’s decision record provided to the Tribunal by the applicant with the application for review. No further written submissions were provided; the applicant provided some documents at hearing.

12. The applicant appeared before the Tribunal on 27 November 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.  The applicant told the Tribunal that he fears that he will be persecuted by the Chinese authorities because he is a Yiguan Dao follower and the government does not recognise their religion. He claimed that he goes to temple and attend lectures and sometimes do volunteer work. He claimed he tries to convert friends to his religion.

13. He has no fear or concern other than this reason to fear harm from the authorities.

14. His wife lives in the family home in [his home] Village, [Town 1], [County 1], Fujian Province. They have lived there ever since1990; they have never lived anywhere else from that time. The children lived there until they were grown up and working and they now live in the town.

15. At the end of the hearing the Tribunal said to the applicant that it was unsure as to what he was saying about his first claims, noting that when he had been asked why he feared returning, he had made no mention of any political background. In response, he claimed that if he goes back, and practiced his religion, the government will harm him because of his religion. He claimed that in China, if one continues to preach the religion, the government will harm them. The Tribunal noted this was inconsistent with his claims that his family continue to preach the religion. In response he said that they are not doing much at the moment, but if he goes back, he will continue to preach the religion and the government will come after him. He did not specifically claim that he would face harm because of his previous political problems.

16. The Tribunal has referred to the evidence and information before it when relevant, below. The Tribunal notes that all references to the applicant’s evidence at interview are sourced from the delegate’s decision record provided to the Tribunal by the applicant, unless otherwise stated.

    CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS AND REASONS

    The Effect of SZGIZ and its relevance to this review

17. The Tribunal notes the decision of the Federal Circuit Court in SZVCH v MIBP [2015] FCCA 2950, delivered on 2 November 2015, which interprets the reasoning in SZGIZ and indicates that in a case such as the present, where a valid application has been made to the Department, and the Department has considered claims under both the Refugee Convention in s.36(2)(a) and the Complementary Protection provisions in s.36(2)(aa) of the Act, the Tribunal should also consider claims under both criteria. This was the position as at the date of the hearing in this matter (27 November 2015), and the Tribunal explained to the applicant that it would be considering both criteria.

18. However, after the hearing, and after the decision in SZVCH, there had been another decision of the Federal Circuit Court in SZQTJ v MIBP [2015] FCCA 3226 (delivered on 3 December 2015). This case found that the correct approach is to consider only claims in relation to the complementary protection criterion in s.36(2)(aa) (where the applicant had previously been refused a visa on the basis of the refugee criterion in s.36(2)(a)). The court found that the approach in SZVCH is inconsistent with the clear words of s.48A and with SZGIZ, which makes clear that a second application can only be made relying on a different criterion. The decision in SZVCH cannot be reconciled with the binding authority of the Full Court and is wrong.

19. The Federal Court in AMA15 v MIBP [2015] FCA 1424 delivered its decision on 15 December 2015, upholding the Tribunal’s understanding of the reasoning in SZGIZ (prior to SZVCH) that only claims in relation to the complementary protection criterion in s.36(2)(aa) should be considered, where the applicant had previously been refused a visa on the basis of the refugee criterion in s.36(2)(a). Thus, the Tribunal considers that it does not have power to consider the Refugee Convention criterion in s.36(2)(a), and should proceed on the basis that it can only consider the applicant’s claims under the Complementary Protection provisions in s.36(2)(aa) of the Act.

20. In light of the Federal Court authority, it is the Tribunal’s view that the applicant’s claims only in relation to s.36(2)(aa) should be considered.

21. However, the Tribunal is aware that the judgment in SZVCH is also on appeal to the Federal Court. In the circumstances, it has also made alternative findings below on the basis of the refugee criterion in s.36(2)(a); noting that at the time of the hearing, it was previewed that the Tribunal would consider both criteria. The relevant law, in addition to that discussed in the body of this decision, is set out in Annexure A (that Annexure also contains the law relating to the Refugee Convention criterion in s.36(2)(a)).

    Receiving country

22. The applicant told the Tribunal that he had come to Australia holding a false passport and that he had never held a passport in his own name. He produced his identity card to the Department, which the delegate accepted for the purposes of his decision. The Tribunal had considerable concerns about the identity card and the applicant’s identity. However the Tribunal notes that the applicant communicated using a Mandarin interpreter, and it is also prepared to accept his identity and nationality for the purposes of this decision.

23. The Tribunal finds that the applicant is a citizen of China and that China is the receiving country for the assessment of his complementary protection claims.

    Credibility

24. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well‑founded” or that it is for the reason claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.

25. Pursuant to s.5AAA of the Act it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.

26. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169‑70).

27. Having considered the relevant evidence, the Tribunal has serious concerns about the applicant’s credibility and the veracity of his claims. The Tribunal does not accept that he is a witness of truth concerning matters central to, and related to, claims of past persecution, his family’s situation, and future fears and concerns. The Tribunal has made the adverse credibility finding for the reasons set out below.

    Concerns about initial protection visa application claims made (maintained in the current application) 

28. The Tribunal had a number of concerns about the applicant’s evidence concerning his former refugee claims, which claims he maintained were true in his statement made in the current visa application.

29. Firstly, in the first protection visa proceedings[4], the applicant claimed that, because of his political activities, he was detained for one year, during which time he was ill-treated. After his release, he was called to the detention centre on three further occasions. He also claimed that his wife had been detained in gaol for one day because she made adverse comments about the authorities.

    [4] Refer to the first decision record of the delegate refusing the first protection visa application, dated [in] October 1995, and/or the first Tribunal decision record.

30. These claims, however, were inconsistent with his evidence to the current Tribunal that he was detained once, for a few days, in 1989, and his wife was never detained.

31. The Tribunal put this information to the applicant pursuant to s.424AA of the Act. In response, the applicant said that he just wants to say that, if he was not a Yiguan Dao practitioner and believer, he thinks he would have gone back to China and be united with his family. He is really persistent in his faith. The Tribunal has considered his response but does not find it persuasive, noting that he did not address the Tribunal’s concerns about his initial protection visa claims.  Although these events occurred about 25 years ago, the Tribunal considers that the applicant would at least remember whether he was detained for a few days or one year; and whether his wife had ever been detained at that time. The Tribunal considers that his inconsistent evidence undermines his credibility, as well as his earlier claims about the adverse attention previously suffered at the hands of the authorities.

32. Secondly, in the first protection visa proceedings[5], the applicant claimed, that he organised workers and others to protest on numerous occasions, including organising a group of workers from his factory to demonstrate in May 1989. However he felt that the group of protestors was too small, so he organised a group of people to discuss political matters and how to better protest. By mid-May he had organised a group of several thousand members to stage a mass rally. He then organised a strike of the workers in the factory.

    [5] Refer to the first decision record of the delegate refusing the first protection visa application, dated [in] October 1995, and/or the first Tribunal decision record.

1. These claims however were inconsistent with his evidence to the current Tribunal of his claimed low level involvement (he initially claimed that he was involved in gathering some workers and colleagues to protest against the officials and the bosses, but he then confirmed that he had not organised anything, instead he was just a participant).

2. When this information was put to the applicant pursuant to s.424AA of the Act, he said that, in his first protection visa application, he didn’t know anything; he asked someone to help him and they wrote the materials so some of the information in the application was untrue however this time, the information about him believing in Yiguan Dao is true. Although the Tribunal notes it may be possible that the inconsistencies were due to someone else assisting him, when considered in light of all its other concerns, it does not accept this explanation. The Tribunal considers that the applicant’s inconsistent evidence undermines his credibility and indicates that he is prepared to make false claims to obtain a protection visa, and to remain in Australia

3. Thirdly, the Tribunal considered the applicant’s reasons for having to leave China to be not credible. He told the Tribunal that he was detained once, in 1989, and thereafter he had no other adverse attention from the authorities. The Tribunal asked the applicant why, then, he had to leave the country six years later in 1995, and he was silent. When the Tribunal prompted him for a response, he then said that he left China because he feared that the Chinese authorities would arrest him. The Tribunal noted that they had not done so for six years, so it seemed difficult to understand why he would think he had to leave, six years later, especially since there had been no adverse attention. The applicant was again silent, and when the Tribunal noted he was not answering the question, he said that he left because, if the Chinese government or local government want to give trouble, then it is very easy for them to do so. The Tribunal noted again that they had not given him trouble for six years.

4. In response, the applicant said that, at the time, he realised that there was serious corruption of the Chinese government so he still wanted to protest against the government and he was thinking bad things could easily happen to him. The Tribunal noted that he did not mention previously that corruption was the reason for lodging his first protection visa application; he had claimed to have done so due to the events in 1989. He responded that at the time the Chinese government was cracking down on the student movement and he saw the corrupt side of the government. The Tribunal has considered the applicant’s evidence but does not find it persuasive. It considers his initial inability to explain why he left six years after his claimed political activity, having received no adverse attention, to indicate that he did not have any reason to fear harm when he left China. The Tribunal considered that if his last explanation was true, he would have been able to tell the Tribunal this when first asked, and he would have told the Tribunal this when asked why he had left China. The Tribunal considers that his responses indicate that he has made up his last explanation to respond the to the Tribunal’s concerns. The Tribunal considers that his evidence indicates that he left China for reasons other than a fear of persecution, which undermines his initial protection visa application, and his reliance upon those claims in his current protection visa application. 

5. Fourthly, the Tribunal was concerned about other instances when it appeared that the applicant changed his evidence to respond to the Tribunal’s concerns. For example, after having told the Tribunal that he had had no adverse attention from the authorities since 1989 and his claimed detention, when the Tribunal put to him that he had no reason to come to Australia, he then changed his evidence and said that local government officials would come to the home asking where he was, and asking that he turn himself in.

6. The Tribunal noted that according to his evidence, he had resided at the same home for 5-6 years after his claimed political activity, so the authorities could have easily located him. He then said that he had moved after the incident to [Town 1] (and this is why he had not been found). The Tribunal put to the applicant that this was inconsistent with his initial evidence to the Tribunal that he had not moved from his home (where his wife continues to reside) ever since they started living there. He then changed his evidence again and said that he only stayed in [Town 1] for two months and then returned to his home.

7. The applicant responded to the Tribunal’s concerns about his changing evidence by saying that maybe because it happened a long time ago, he cannot recall clearly. Whilst the Tribunal accepts that these events occurred a long time ago, the Tribunal considers that the applicant would have recalled whether he lived in one place, or went somewhere else to escape, before coming to Australia, and that he would have recalled whether or not the authorities had shown any interest in him in the six years after his claimed activities and prior to his escape to Australia. The Tribunal considers that the applicant’s changing evidence undermines his credibility and claims.

8. Fifthly, the Tribunal was concerned that the applicant seemed to have obtained an identity card (which he produced to the Department, issued [in] 2000, which was valid for 20 years) from the Chinese authorities despite his claims that the authorities wanted to persecute him, and noting that he claimed to have been in Australia at that time, and not China. The Tribunal wondered whether the applicant had returned to China (perhaps also on a false passport). He claimed that he had not done so. The Tribunal noted, and the applicant agreed, that identity cards are very important in China (they can be used to apply for passports, to buy land and airline tickets, and they are issued by the Public Security Bureau (PSB); the Tribunal asked how, in the circumstances, he could have obtained an identity card when he was in Australia, not having presented himself to the PSB. He said that his wife showed his old card and got a replacement. The Tribunal put to the applicant that it seemed difficult to accept that the PSB would issue such an important identity card, with his photo on it, if he was not present. The applicant then said his wife bribed the authorities. Even if the Tribunal accepted this as possible, other concerns remained in relation to this identity card.

9. The Tribunal noted that the identity card was issued in 2000, which was while his initial protection visa application was ongoing. The Tribunal suggested that obtaining an identity card from the authorities from whom he feared persecution may indicate that he did not have a fear of harm from them and it may indicate that he was prepared to return to China. He responded that he just wanted an ID card to be sent to him…. He did not finish his sentence. When prompted, he said he wanted an ID card in case he had to go back to China one day. The Tribunal has considered his response but does not find it satisfactory; as put to the applicant, he claimed that his card had already expired (so it did not appear that he had a time pressure to renew it). Further, he had lodged a Federal Court appeal and three years had expired since he failed in his first Tribunal application[6].

   [6] As set out in the delegate’s decision record provided to the Tribunal by the applicant.

10. Further, the Tribunal was concerned that the applicant would want an approach made to the authorities given the refugee claims he made at the time. As noted above, the applicant told the Tribunal that his previous claims were political, relating to the student movement of 4 June 1989, and he had been arrested and detained. The Tribunal put to the applicant that if he had had such involvement, and if he continued to fear persecution (as indicated by continuing his proceedings and remaining in Australia) it seemed highly unlikely that he would want to draw himself (or his wife) to the attention of the authorities, by having his wife go and apply for a new ID card. 

11. The Tribunal considers the applicant’s evidence to be unlikely, but in the event that he did ask his wife to approach the authorities to obtain a new ID card while his refugee appeal to the then Federal Magistrates Court was ongoing, the Tribunal considered that this indicated that the applicant did not have a fear of persecution in China, and was planning to return there, which undermines his previous refugee claims (which he claimed were true in the current proceedings) and his credibility.

    Inconsistencies, changing and non-credible evidence concerning relevant background and claims of past harm in China

12. The Tribunal had a number of concerns about the background evidence given by the applicant, both generally and relevant to his claims.

13. Firstly, in the first protection visa proceedings[7], the applicant claimed that his father was denounced as a reactionary during the Cultural Revolution, he was unable to attend school, even at primary level, due to his father’s poor political background. From 1974 until 1978, he worked on a farm, doing hard labour. From 1980 until 1989, he was employed by factory to work as a labourer.

    [7] Refer to the first decision record of the delegate refusing the first protection visa application, dated [in] October 1995, and/or the first Tribunal decision record.

14. However, as put to the applicant pursuant to s.424AA of the Act, this information is inconsistent with his protection visa application form in the current proceedings, and his evidence to the Tribunal, where he claimed to have attended [number] years of education, from primary school right through to high school. In response, the applicant said that he did not know that the information in his previous application would be considered. The main reason to make his current application is because of Yiguan Dao, as he cannot spread his religion to many other people in China. The Tribunal notes that the applicant did not explain why he provided such inconsistent evidence about his background, and considers that his failure to do so, as well as the inconsistent information, undermines his credibility concerning his background and past events in China.

15. Secondly, the Tribunal was concerned about the applicant’s evidence concerning his son, who, he claimed, remains living in the applicant’s home town and continues to practice as a Yiguan Dao practitioner. He told the Tribunal that his son works and lives in [Town 1], and he has only ever lived there, or with the family in the home in [his home] Village, [Town 1]. The Tribunal was concerned that this was inconsistent with his application form, which states that his son resides in [Country 2]. The Tribunal asked the applicant if his son had ever gone overseas and the applicant said no.

16. After the Tribunal pointed out the contents of his application form, the applicant was silent, and then said that his son went to [Country 2] to study, around [number] years ago, and he is still there. The Tribunal asked the applicant why he had told the Tribunal that his son was living in [Town 1], and he said he forgot, and he was living there before he went to [Country 2]. The Tribunal put to the applicant that it was difficult to accept that he forgot this. The applicant did not offer any explanation other than to say he was sorry. The Tribunal considers that the applicant’s evidence, and explanation, is not credible. The Tribunal notes that this evidence undermines his claims that his son is attending and practicing Yiguan Dao at the family temple, and it undermines the applicant’s credibility.

17. Thirdly, the Tribunal was concerned about the applicant’s evidence concerning his family and the practice of Yiguan Dao.

18. For example, the applicant told the Tribunal that he persuaded his wife in 2006 to practice his religion. The Tribunal put to the applicant that it did not understand that, while he was fearful to return to China and practice an illegal religion, he encouraged his wife and children to practice the religion, thus putting them at risk. The applicant did not respond initially, and when the Tribunal repeated its question, he said that he did it because he really believes in Yiguan Dao and he wanted his family to have the religion too. The Tribunal has considered the applicant’s explanation, however it does not find it persuasive, given his evidence that it was an illegal religion which had been banned for many years, and he had already attracted the adverse attention of the authorities to himself and his family for his political activities.

19. The Tribunal also put to the applicant that it did not understand how he managed to persuade his family to follow his religion, given it was illegal, and given his inability to explain his religion or persuade with any detail (at hearing) why someone should convert to the religion (as referred to further below). In response, the applicant said that his religion is a great religion and he wants them to attend gatherings and get to know about this religion.

20. The Tribunal had further concerns about the applicant’s evidence. The Tribunal put to the applicant that according to his evidence (and country information), his religion has been illegal for a long time, and once the authorities are aware of it being practised, they crack down on it. The Tribunal noted that the authorities were aware of the temple and his wife’s practice of the religion, yet they did not appear to crack down on it. In response, he said that, when there are gatherings of just a few people, it is okay. The Tribunal noted that this was inconsistent with his evidence at the interview (as set out the delegate’s decision record provided to the Tribunal), namely that around [number] people, 10 to 20 at a time, attended the temple at his wife’s house every Saturday from 2006 to 2009 and, according to his statement, the authorities were aware of this, it appeared that his wife was flaunting the religion in front of the authorities, yet managing to continue to practice the religion. The Tribunal put to the applicant that this did not appear to be credible, and asked if he wanted to respond. The applicant said that they just want to invite more people to get to know the religion and they didn’t want to trigger the attention of the authorities. The Tribunal considers that he did not respond to its concern about his changing and inconsistent evidence, which undermines his credibility.

21. The applicant had claimed that his wife was arrested on one occasion. The Tribunal asked the applicant when this occurred, and he said it was when they wanted to apply for the family temple to become legal. The Tribunal again asked the applicant when she was arrested, and he said he thinks it was in 2012. This however was inconsistent with the applicant’s statement, which provided that they wanted to register the temple in 2009, which did not lead to her arrest (instead according to his statement, at that time she was taken and questioned by security, but not arrested). Instead it was after Chinese New Year 2013, after the petition was signed and ignored, that the temple members went to the village administration office to reason with them, that his wife was arrested. The Tribunal put to the applicant its concern about the inconsistency concerning the date of his wife’s arrest, and the circumstances leading to her arrest, and he said that he can’t recall. The Tribunal considers that if his wife was arrested once during the time she practised Yiguan Dao, he would have remembered when she was arrested, and the circumstances leading to her arrest. The Tribunal considers this undermines his credibility and his claim that his wife was arrested in relation to Yiguan Dao.

22. Further, the Tribunal asked the applicant why his family had lodged an application to register the temple in 2009, given that the religion had been illegal for many years. The Tribunal suggested that such an application would have alerted the authorities to their practice of an illegal religion. In response, he said it was banned a long time ago so they were thinking that it was a long time ago, and at the time they “didn’t think much”. The Tribunal put to the applicant that this was inconsistent with his statement, which indicates that the authorities discovered the temple and kept on disturbing the gatherings, preventing them from joining congregations, which occurred before they lodged the application to register the Temple. In response, he said that it was banned in 1945 and they wanted more people to know about it. The Tribunal does not consider the applicant’s explanation to be persuasive.

    Concerns about the applicant’s knowledge, practice of, and involvement with Yiguan Dao

23. The Tribunal had a number of concerns about the applicant’s evidence concerning his claimed religion, as set out below.

24. The Tribunal was concerned that the applicant was unable to explain in any detail as to why he converted to Yiguan Dao. He told the Tribunal that he had met a man through friends, he didn’t know his full name, he had then attended sessions two times per week, for two weeks, and then he decided to convert to Yiguan Dao (his previous religion was Buddhism). The Tribunal asked the applicant what he learned during these four sessions that made him want to change his religion from Buddhism to Yiguan Dao. The applicant could only give brief descriptions of aspects of the religion (such as there are many benefits and it makes you feel good, and by seeking Dao people can transcend from the cycle of reincarnation). 

25. The Tribunal was further concerned by the applicant’s changing and evasive evidence as to how often he attended temple after he decided to convert to this religion. Initially he told the Tribunal that he normally attended gatherings on Wednesdays and Saturdays. Then it transpired that he did not attend temple often in the first three years; maybe once or twice per month (2003-2006). The Tribunal put to the applicant that this was inconsistent with his initial evidence (that he attended twice per week); further, his lack of attendance did not appear to indicate that he was a person who had converted to a new religion. In response the applicant said that if it is not convenient maybe you will just skip it.

26. The Tribunal was concerned that, although he claimed to have converted people to his religion, when it asked him how he would convert someone to his religion, he just provided some superficial comments about the religion. He initially said if your cultivation is good enough after your ascension to heaven you can avoid reincarnation. The member noted that she is alive now, so why would a person who was alive now want to adopt his religion. He paused and gave a vague response:  by believing in Yiguan Dao, a lot of aspects of life can be improved.

27. When the Tribunal noted this was vague, and not particularly convincing of why someone should convert, he gave more vague evidence, saying Yiguan Dao is a very good religion. When the Tribunal again said that his evidence did not appear to be able to convince someone to change their religion (or take up a new religion), he again paused. He said that it can change your mindset. The Tribunal asked if he could provide a practical example of how his mindset had changed and he was initially unable to do so. After the Tribunal gave him a further opportunity to do so, he then wanted to tell a story about a soldier from [Country 1]. The Tribunal again repeated its concern, namely that he was unable to explain how his mindset had changed; he then said that he once gave money to a woman at a train station.

28. The Tribunal decided to have a break and said it would listen to his story about a [Country 1] soldier, but that it was concerned that he could not provide any real practical examples about how he applies Yiguan Dao in his daily life. He was again given an opportunity to provide examples, however he said he would have to think about it. The Tribunal put to the applicant that if he had been a genuine Yiguan Dao practitioner for 12 years (who had converted others to the religion, and made continuing attempts to do so), it would think he would not need time to think about how he applied Yiguan Dao in his daily life. In response he said “once I started believing in Dao …”. The Tribunal noted that he was not finishing his sentence. He paused and said “for us it is like how to improve yourself and how to give others the opportunity to improve themselves, practical examples would be that if anyone around you wants help, then you help them eagerly”.

1. After the break, the applicant provided a long story about a soldier who died, and whose mother showed tolerance because she was a Yiguan Dao follower. The Tribunal put to the applicant that it was concerned that he was able to recount a long story about someone he did not know, but that he was unable to tell the Tribunal in any detail of any practical examples of how his religion affects his life. In response the applicant said that although he is not involved in this story he thinks he wants to express that Yiguan Dao practitioners would always try to forgive others. The Tribunal has considered the applicant’s evidence, however it does not find it persuasive. The Tribunal considers that, if the applicant chose to convert to his religion, and had practised it for many years, he would be able to explain in more detail about his religion, especially noting he was able to provide detail (concerning a soldier he did not know). The Tribunal considers this undermines his claims.

2. Further, the applicant told the Tribunal that he asked friends to bring home Yiguan Dao materials to his wife. The Tribunal asked when this occurred and he said in around 2009. The Tribunal noted that according to his statement, this occurred in 2012. He said he can’t remember. The Tribunal considers that the applicant would have remembered whether it was 2009 or 2012 when he sent books to China, which occurrence he claims led to him being in danger with the authorities. The Tribunal considers that this inconsistency undermines his claims to have sent illegal books back to China relating to Yiguan Dao.

3. Further, the applicant claimed at hearing that he posted material “online” about Yiguan Dao. He said that if it is looked up, it is easy to find. The Tribunal asked what he had written, and he then changed his evidence and said that he became worried and deleted it. The Tribunal noted this was inconsistent with what he had just said, namely that it could be looked up online; he then said that what he wrote can’t be found anymore. The Tribunal asked what he had written online and he said he wrote that, in the past, you need to cultivate to seek Dao in a temple, and now you can do it at home. The Tribunal asked if he had done or written anything specific online about Yiguan Dao and he said no. The Tribunal put to the applicant that this was inconsistent with his statement, where he claimed to have signed the petition against the government. He then said he did not do this. The Tribunal considers the applicant’s evidence about his actions in relation to his religion to be unlikely.

   Delay in approaching the Immigration Department after having commenced his Yiguan Dao practice

4. The Tribunal was further concerned about the applicant’s delay in approaching the Immigration Department after having commenced his Yiguan Dao practice.

5. The applicant claimed in his statement that he had lodged an unsuccessful Ministerial appeal in 1998. Thereafter he “lost courage” to contact the Department. He commenced Yiguan Dao, an illegal religion in China in July 2003, while his contact with the Department was ongoing (as noted above his bridging visa ceased in March 2004). He was prepared to work, and obtain qualifications, and live unlawfully present in Australia, but he did not take any steps to approach the Department or Minister about his claimed involvement in this illegal religion, in relation to which, he would face harm if returned. The Tribunal considers that his lack of action undermines his credibility.

6. On the basis of the above, the Tribunal does not consider the applicant to be a credible witness.

   Other matters

7. The Tribunal accepts that the applicant could have been nervous in appearing before it, or during the proceedings generally. The applicant claimed that he may have forgotten something in his earlier protection visa application, and some events that had occurred before he left China. He noted that some of these events occurred more than 20 years ago. Whilst the Tribunal accepts that this is quite a long time, it considers that having regard to the seriousness of his claims, he would have remembered matters such as whether or not he had been detained for one year or a few days, and whether his wife had been detained because of claimed political activities The Tribunal is not prepared to accept that the applicant was unable to recall such matters. The Tribunal is not satisfied that his memory can explain concerns with his evidence.

8. The Tribunal put to the applicant pursuant to s.424AA of the Act that according to notes on the first Departmental file, the Department considered that the applicant had put forward false claims in order to remain in Australia; others had made similar false applications. The Tribunal noted that this may indicate that he is prepared to lodge false applications. In response, the applicant claimed that his first protection visa application was prepared with help from other people and it may not be true, but the information in his current application about Yiguan Dao is true. The Tribunal does not rely upon an earlier view of the Department, nor that other people may have made false claims in the past (as this does not mean that the applicant had done so).

9. The applicant produced a number of supporting letters and documents to the Department. Some of these indicate that the persons have known him for significant periods of time (such as 10 years); the letters make no reference to Yiguan Dao; instead they refer to his work history (recommending his [Occupation 2] work, and that he is reliable, conscientious and honest); other documents include tax assessments, and a Transcript of his results for his Certificate III in [Subject] from [education provider].   The Tribunal is prepared to accept that some people who worked with the applicant considered him to be honest, and a hard worker. This does not however mean that his claims are true, or that he has been honest in his immigration matters. Indeed he has admitted to having remained in Australia unlawfully.

10. The applicant produced a card which was said to be an initiation card, together with a translation, which stated that he was baptised in July 2003, at the [a monastery], by a spiritual master from [Country 1]. It also provide the name of the Spiritual Master, the Spiritual Guide, and the Spiritual Guardian.

11. As noted in the delegate’s decision record, at interview the applicant claimed that he attends the Yiguan Dao temple twice per month along with other adherents, and he supplied four photos which he claimed attested to this. He also provided photos to the Tribunal at hearing. The photos included the applicant sitting was a group of people (in an unknown location); the applicant and some other people standing next to some candlesticks and flowers arranged in a small area which could be a temple; and the applicant standing at a podium apparently at the Temple; and the applicant washing-up at a sink. The Tribunal noted there was one date on one of the photos, which was August 2012. The Tribunal put to the applicant that it may be that he first went to the Yiguan Dao Temple when his first protection visa proceedings were underway (in 2003) and in August 2012 (when he remained unlawfully present). The Tribunal also noted that he produced a booklet (untranslated) to the Tribunal, which he said he was giving the pamphlet to show he has been to the Temple. He said it was given to him during the initiation ceremony and it talked about how to cultivate and the treasures. As the Tribunal put to the applicant, neither the possession of this book, nor the photos, mean that he is a genuine practitioner. The Tribunal is not prepared to accept that this book or the photos shows that the applicant is a genuine practitioner.

12. Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility as discussed above, lead the Tribunal to conclude that the applicant is not a witness of truth and the applicant has fabricated accounts of events in China and his circumstances in Australia concerning his claimed religion, as well as future fears and circumstances.

    Findings on the applicant’s claims of events in China and future fears

13. The Tribunal does not accept that the applicant had any involvement in events related to the student movement of 4 June 1989 and subsequent crackdown; that he ever protested or organised demonstrations or any other political activity; that there was any reason for the authorities or anyone to think he had been so involved; that he lodged his first protection visa application for reason of a fear of persecution; that he or his wife had been arrested and detained or summonsed to see the authorities, nor that the authorities have ever shown an interest in him or his family.

14. The Tribunal does not accept that the applicant ever wanted to protest, nor that he would ever want to protest if he returns to China.

15. The Tribunal does not accept that the applicant fled China due to corruption, a crackdown, or a fear of persecution. The Tribunal does not accept that the applicant’s claims in his first protection visa application, as discussed above, were true. The Tribunal finds that the applicant came to Australia, and remained in Australia, for reasons other than a fear of persecution.

16. At hearing, the Tribunal put to the applicant that he had been baptised/initiated, had obtained some knowledge, and attended on occasions the temple in order to strengthen his claims to remain in Australia. In response, the applicant said that he believes in Yiguan Dao, it is not to strengthen his applications, when he was initiated his application had been refused and that is why he stayed here unlawfully after the refusal; and it was only not long ago that he realised he could apply a second time. The Tribunal has considered his explanations, however it does not find them persuasive. The Tribunal notes that, as set out the delegate’s decision record, he had ongoing claims until 2004; his claimed initiation occurred in 2003, prior to his appeals/applications ending[8].

    [8] As set out in the delegate’s decision record provided to the Tribunal by the applicant.

17. The Tribunal finds that he lodged a protection visa application and had ongoing dealings with the Department until 2004. The Tribunal is prepared to accept, on the basis of the initiation card, that the applicant attended a temple and was baptised/ initiated [in] July 2003. On the basis of the adverse credibility finding, the Tribunal is not prepared to accept that he took this action as a genuine Yiguan Dao practitioner; instead it considers that the applicant joined Yiguan Dao, and occasionally attended a temple (or lecture), because he wanted to give himself an opportunity to make a further, sur place claim, if that was necessary.

18. The Tribunal is not prepared to accept his evidence that he attended a few times per month, nor that he attended more regularly later. Having regard to the adverse credibility finding, the applicant’s ongoing wish to remain in Australia, and his unlawful presence, the Tribunal considers that the applicant attended occasionally (and perhaps occasionally did some voluntary work such as washing-up), between July 2003 and when he lodged his second protection visa application in 2013, including in August 2012 when the photo was taken, because of his migration status in Australia (namely his unlawful presence in Australia) in order to offer himself some kind of protection because he was unlawfully present in Australia, and to give himself an opportunity to make a sur place claim if he was detected).

19. The Tribunal does not accept that the applicant became involved in Yiguan Dao for any genuine reasons, nor that he genuinely converted to Yiguaqn Dao, nor that he converted his wife or family to Yiguan Dao. The Tribunal does not accept that his wife or family or any contacts he has, or has had, in China, have practised or practice Yiguan Dao. The Tribunal does not accept that his family members have come to the attention of the authorities for reasons of Yiguan Dao, or for any other reason, nor does the Tribunal accept that the applicant gave books to a friend to take back to China, which were confiscated leading to adverse attention of the applicant by the authorities, nor that his home in China searched, nor that he is the subject of an investigation. The Tribunal does not accept that the applicant has attempted to convert, or has converted, anyone to Yiguan Dao (or would have any interest in Yiguan Dao in China).

20. The Tribunal does not accept that the applicant signed a petition, nor that he or his wife were involved in any temple which signed a petition or placed a video on the internet. The Tribunal does not accept that the applicant’s wife or other family members were arrested or injured or drew the adverse attention of the authorities.

21. There is no credible evidence before the Tribunal to suggest a risk or a chance that the Chinese authorities have any knowledge of (or interest in) the applicant’s occasional involvement in Yiguan Dao in Australia, and the Tribunal so finds.

22. As put to the applicant at hearing, if it did not accept that he was a genuine committed practitioner, it may find that he would not practice when he returned to China. On the basis of the adverse credibility finding, and the finding that the applicant has not practised Yiguan Dao in Australia as a genuine practitioner, the Tribunal does not accept that there is a real risk (or real chance) that the applicant would undertake any Yiguan Dao activities if he returns to China.

23. The Tribunal is not satisfied that there is a real risk that the applicant will face significant harm in China arising from imputed or actual religion, imputed or actual political opinion, or his association with any of his family members, or for any other reason.

24. The Tribunal put to the applicant that there are DFAT reports that it must consider which refer to the country conditions in China, but if it finds that he has had no previous problems, and he is not a genuine Yiguan Dao practitioner, then it did not appear on the evidence before it that he would face a real risk of significant harm (or a real chance of serious harm) if he returns to and lives in China. He responded that he has experienced a lot of change and if one is sincere they will feel miracles. The Tribunal has considered the relevant DFAT reports, however it does not accept that, as a result, the applicant faces a real risk of significant harm (or real chance of serious harm) in China.

25. The Tribunal is not satisfied on the basis of the evidence before it that the applicant faces a real risk (or a real chance) of significant (or serious) harm in the form of being killed, or harmed or suffering discrimination or harassment or any other harm in China, from anyone or for any reason.

    Conclusion on the applicant’s complementary protection claims

26. The Tribunal has found that the applicant is a Chinese national from Fujian province. It is prepared to accept that he has relatives back home, and that he has studied and worked in China before coming to Australia. The Tribunal finds that the applicant is a resourceful man who worked and undertook studies in Australia while remaining here unlawfully for a long period of time. The Tribunal considers that he will return to live with his family, and work, and otherwise is not a truthful witness about his circumstances, or those of his family.

27. Having considered the applicant’s claims individually and cumulatively, for the reasons given above, the Tribunal is not satisfied that the applicant faces a real risk of significant harm in China.

28. The Tribunal finds there is no basis for the applicant's claims to fear significant harm. The Tribunal is 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 that he will suffer significant harm. Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa).

    Alternate finding - Refugee claims in relation to the applicant

29. The Tribunal considers that the appropriate country of reference for the assessment of his refugee claims would be China. For the reasons set out above, the Tribunal has found that the applicant is not a credible witness, and it does not accept that his claims of past harm or future feared harm are truthful. The Tribunal has not accepted that the applicant has been threatened, harmed, detained, of adverse interest to anyone or any authority, nor does it accept that his family have faced harm or harassment or adverse attention. As put to the applicant pursuant to s.91R(3) of the Act, if it did not accept that he was or is a genuine practitioner while in Australia, it may disregard his Yiguan Dao activities in Australia (including initiation in July 2003 and attendance at the temple occasionally, including in August 2012). On the basis of the adverse credibility findings, the Tribunal has found that the applicant undertook occasional Yiguan Dao activities in order to strengthen his claim to be a refugee (if his first claims were unsuccessful and if he was caught). The Tribunal thus disregards the applicant’s Yiguan Dao activities pursuant to s.91R(3) of the Act. It does not accept that he (or his family) are genuine practitioners of Yiguan Dao, nor that he or his family would have any interest in practicing it in China.

30. On the evidence before it, the Tribunal is not satisfied that the applicant faces a real chance of serious harm for any reason now or in the reasonably foreseeable future in China.

31. On the basis of the findings of fact set out above, considering the applicant under the refugee criteria, the Tribunal finds that it is not satisfied that the applicant has a well-founded fear of persecution for any Convention-related reason in the reasonably foreseeable future if he was to return to China. Accordingly, the Tribunal is not satisfied that he meets the refugee criterion in s.36(2)(a).

    Member of family unit

32. 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).

    CONCLUSIONS

33. There is no evidence before the Tribunal to suggest 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.

34. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

35. The Tribunal is of the view that it does not have jurisdiction to consider whether the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention (the criterion set out in s.36(2)(a)). The Tribunal considers that even if it were wrong in that regard, the applicant does not meet the refugee criterion in s.36(2)(a).

36. Accordingly, the applicant does not satisfy the criterion in s.36(2) for a protection visa.

    DECISION

37. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Christine Cody

    
    

    Member

    ANNEXURE A - RELEVANT LAW

    Note: this is the relevant law applicable when the Tribunal is considering all of the three criteria for a protection visa; namely refugee, complementary protection, and member of family unit of the holder of a protection visa. The Tribunal has considered this law, albeit adapted to meet the relevant criteria as set out in SZGIZ.

38. 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.

    Refugee criterion

1. 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).

2. 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.

3. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

4. There are four key elements to the Convention definition. First, an applicant must be outside his or her country. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

5. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

6. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. 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.

7. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

8. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

   Complementary protection criterion

9. 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’).

10. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she 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. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

11. 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.