1503968 (Refugee)

[2017] AATA 2932

1503968 (Refugee) [2017] AATA 2932 (14 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1503968

COUNTRY OF REFERENCE:                  China

MEMBER:Mila Foster

DATE:14 November 2017

PLACE OF DECISION:  Sydney

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

Statement made on 14 November 2017 at 12:12pm

CATCHWORDS
Refugee – Protection visa – China – Religion – Christian – Particular social group – Mental health  and other medical conditions – Separation from [Child 2] – Failed asylum seekers and returnees - Ministerial intervention – Inconsistent evidence

LEGISLATION
Migration Act 1958, ss 5AAA, 36, 48a,65, 91WB, 345, 351, 391, 417, 438, 454, 499, 501J
Migration Regulations 1994, Schedule 2, r1.12

CASES
AMA15 v MIBP [2015] FCA 1424
MIBP v Singh [2016] FCAFC 183
MZAAJ v MIBP [2015] FCA 478
MZAAJ v MIBP [2015] HCATrans 238
MZAAJ v MIBP [2015] FCCA 151
SZRSN v MIAC [2013] FCA 751
SZRSN v MIAC [2013] FMCA 78
SZGIZ v MIAC (2013) 212 FCR 235
SZSNX v MIBP [2015] FCCA 2271
WZARI v MIAC [2013] HCASL 201
WZARI v MIMAC [2013] FCA 788

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 husband and wife and citizens of China, applied for the visas [in] May 2014 and the delegate refused to grant the visas [in] March 2015.

3. The applicants appeared before me at a hearing held on 9 February 2017 and 7 March 2017 to give evidence and present arguments.[1] They were represented in relation to the review by a registered migration agent who attended the hearing. The hearing was recorded and I have listened to the recordings before making this decision.

   [1] Unless otherwise specified, a reference to ‘the hearing’ or the testimony of either applicant in this decision refers to the hearing held over those days and the testimony they gave at that hearing. 

   BACKGROUND

4. The following background provides context to this review.

   Applicants arrival in Australia

5. The applicants claim to be from [a] town in Fuqing city, Fujian province in China. They claim they married in China and had [Child 1], who is now [age].

6. The Department’s movement records indicate that the first named applicant and the second named applicant arrived in Australia [in] April 2007 and [in] August 2009, respectively and that neither has left Australia since.[2] They left their [Child 1] in China with the first named applicant’s mother. The applicants claim they lost contact with each other at some point in time but were reunited and resumed their marital relationship shortly after the second named applicant arrived in Australia.

   [2] Tribunal file 1503968, ff. 25-30. 

   First protection visa applications

7. The first named applicant lodged a protection visa application [in] April 2007[3] which I hereafter refer to as his first protection visa application.  He was refused a protection visa by a delegate of the Minister [in] July 2007. He applied to the Refugee Review Tribunal (RRT) for a review of that decision. On 20 November 2007 the RRT affirmed the decision to refuse him a protection visa.[4]  [In] December 2007 the first named applicant made an unsuccessful application to the Federal Magistrates Court for judicial review of the RRT decision, and an unsuccessful application to the Full Federal Court for an extension to lodge an appeal [in] August 2008.

   [3] Department file [number]

   [4] RRT case number 071673563.

8. The second named applicant applied for a protection visa [in] November 2009[5] which I hereafter refer to as her first protection visa application. She was refused a protection visa by a delegate of the Minister [in] February 2010 and applied to the RRT for a review of that decision. On 9 June 2010 the RRT affirmed the decision to refuse her a protection visa.[6] She made an unsuccessful application to the Federal Magistrates Court for judicial review of the RRT decision [in] July 2010.

   [5] Department file [number]

   [6] RRT case number 1001638.

9. The Department’s file relating to the second named applicant’s first protection visa application contains a purported s.438 non-disclosure certificate.[7] The certificate states that disclosure of information contained in four folios on the file would be contrary to the public interest because the information relates to an internal working document and business affairs. The information in the folios concerns information the second named applicant provided to the Department and this Tribunal that she used a false [country] passport to enter Australia in the name of [alias]. A valid s.438 certificate requires the Tribunal to disclose the existence of the certificate to the applicant concerned and inform the applicant how the Tribunal intends to deal with it.[8] For the certificate to be valid, a public interest reason for the non-disclosure of the information must be specified in the certificate. However, the reason given for the non-disclosure in this instance is not the basis of a claim for public interest immunity and thus the certificate is not valid. I have not however disclosed the information to which the purported certificate relates to the second named applicant because the information does not undermine her claims and is information she has provided to the Tribunal.

   [7] Department file [number] (unfolied).

   [8] MZAFZ [2016] FCA 1081 (Beach J, 7 September 2016) and MIBP v Singh [2016] FCAFC 183, (Kenny, Perram and Mortimer JJ, 19 December 2016).

   Birth of [Child 2] and second protection visa application

10. On [date] the applicants had [Child 2] who was born in Australia and [in] June 2011 the applicants lodged a protection visa application on behalf of their [Child 2] and included themselves as members of the family unit.[9]  I refer to this as the applicants’ second protection visa application. The applicants were assisted in relation to this second protection visa application, their current protection visa application and their current review application by migration agents from the same legal firm.

    [9] Department file [number]

11. [In] June 2011 the applicants were informed by the Department that the second protection visa application was invalid insofar as it related to them. However, subsequent case law indicates that their second protection visa application was valid. I discuss this further in the next paragraph. A delegate of the Minister subsequently refused their [Child 2] a protection visa and an application for review of that decision was made to the RRT. On 13 February 2012 the RRT remitted the [Child 2]’s matter to the Department for reconsideration with the direction that the [Child 2] satisfied s.36(2)(a) of the Act because [Child 2] was a person to whom Australia had protection obligations under the Refugees Convention.[10] Their [Child 2] was granted a protection visa application [in] February 2012.

    [10] RRT case number 1109042.

12. The applicants were informed by the Department that their second protection visa application was invalid due to s.48A which stated that a person who has not left Australia since they were refused a protection visa is prevented from making a subsequent protection visa application unless the Minister exercised his power under s.48B to allow the person to apply again if it was in the public interest.[11]

    [11] Department file [number], f.59.

13. [In] June 2011 the applicants asked the Minister to exercise his power in s.48B to permit them to lodge a further protection visa application.[12] In the course of considering that request the Department asked and the applicants eventually provided police clearance certificates which certified that they have no record of criminal convictions in China. Their request for referral to the Minister for consideration under s.48B was refused because it did not meet the relevant guidelines.

    [12] Department file [number], f.87.

14. On 3 July 2013 the Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 held that the operation of s.48A, as it stood at the time of the applicants’ second protection visa application, was 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. In SZGIZ, the further protection visa application was made on the basis of the complementary protection criterion under s.36(2(a) which was introduced on 24 March 2012. In the case of both the first named applicant and the second named applicant, their respective first protection visa applications were made on the basis of the refugee criterion in s.36(2)(a) alone. Hence, they were not barred by s.48A from making a further application on the basis of the family membership criterion in s.36(2)(b) when they lodged their second protection visa application [in] June 2011. This indicates that the applicants’ second protection visa application was not invalid by way of s.48A.

15. It appears that in response to SZGIZ, rather than consider the applicants’ second protection visa application on the basis of family membership, the Department advised the applicants to lodge a further protection visa application on the basis of complementary protection.[13] I note that a decision that a protection visa application is not valid cannot be reviewed by the Tribunal.[14]

    Current (third) protection visa application[15]

    [13] Department file [number], f.134.

    [14] s.411(2)(b).

    [15] See Department file [number]

16. The applicants lodged their third protection visa application via their migration agent on the basis of the complementary protection criterion. The decision under review before me is the decision made to refuse them protection visas in relation to that protection visa application.

17. In the current protection visa application the first named applicant referred to having being detained for his political activities, and claimed that obtaining a police clearance from the local authorities in China has raised suspicions about his activities in Australia and might lead them to think he was trying to make the Chinese government look bad. He referred to a statutory declaration but none was provided. The second named applicant made claims relating to her past and current religious activities and obtaining a police clearance from China. She stated that a written statement would be provided but none was provided. Copies of the police clearance certificates were submitted with the application.

18. The applicants’ migration agent presented written submissions to both the Department and Tribunal on the basis of the refugee criterion in relation to the current protection visa application. However, the Federal Court in AMA15 v MIBP [2015] FCA 1424 upheld the Tribunal’s approach of considering 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). I raised this at hearing with the applicants and their migration agent. No arguments were presented that I had the power to consider the refugee criteria and the migration agent requested that the submissions be considered with respect to the complementary protection criterion (although a subsequent post-hearing submission was also inexplicably made on the basis of the applicants’ membership of particular social groups which relates to the refugee criterion). In light of AMA15, I have considered the applicants’ claims only in relation to the protection visa criterion against which they not been considered and refused protection visas, namely, the complementary protection criterion in s.36(2)(aa) and the family membership criteria in s.36(2)(b) and (c).

    COMPLEMENTARY PROTECTION CRITIERON

19. 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.

20. A person is owed complementary protection complementary 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’).

21. ‘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. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm.

22. An applicant will suffer significant harm if they will be subjected to torture: s.36(2A)(c). Torture is exhaustively defined in s.5(1) of the Act as an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person. The pain or suffering must be intentionally inflicted.  Furthermore, it must be inflicted for one of five purposes: for the purpose of obtaining from the person or a third person information or a confession; for the purpose of punishing the person for an act which they or a third person committed or is suspected of having committed; for the purpose of intimidating or coercing the person or a third person; for any purpose related to one of those purposes; or for any reason based on discrimination that is inconsistent with the Articles of the International Covenant on Civil and Political Rights (the ICCPR).

23. However, torture does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.

24. ‘Cruel or inhuman treatment or punishment’ for the purposes of s.36(2A)(d) is exhaustively defined in s.5(1) of the Act to mean an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is inflicted on a person, so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature. The pain or suffering must be intentionally inflicted.

25. However, ‘cruel or inhuman treatment or punishment’ does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.

26. The final type of significant harm listed in s.36(2A) is degrading treatment or punishment: s.36(2A)(e). Degrading treatment or punishment is exhaustively defined in s.5(1) of the Act to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.

27. However, ‘degrading treatment or punishment’ does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one that causes, and is intended cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.

28. 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.

    FAMILY MEMBERSHIP CRITERION

29. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. Member of the family unit is defined in r1.12.

    SECTION 499 MINISTERIAL DIRECTION

30. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. Accordingly, I have had regard to DFAT Country Report: People’s Republic of China (3 March 2015), DFAT Thematic Report: Fijian province, People’s Republic of China (16 December 2016), and DFAT Thematic Report: Unregistered religious organisations and other groups in the People’s Republic of China (3 March 2015). 

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

32. The applicants’ claims and evidence were presented in their current protection visa application, documents and written submissions presented to the Department in support of their current application, during an interview with the delegate in relation to their current protection visa application, in oral evidence given at the Tribunal hearing, and documents and submissions presented to the Tribunal in support of the application for review.

33. In addition, the applicants’ migration agent stated in her pre-hearing submission that all the submissions that had been made in relation to the applicants past applications remain relevant. At the hearing the migration agent and the applicants clarified that they sought to rely on all of the statements, evidence and submissions presented by the applicants to the Department and the RRT in relation to the claims each made in their respective first protection visa applications. Thus, the evidence the applicants sought to rely in this review includes the detailed statutory declaration made by the first named applicant [in] April 2007 submitted in support of his first protection visa application, the detailed claims made by the second named applicant in her first protection visa application and the oral evidence each gave to the RRT in relation to the claims they made in their respective first protection visa applications.[16]

    [16] I have listened to recordings of both RRT hearings.

1. Having considered the claims and evidence presented by and on behalf of the applicants, I have concluded that the decision under review should be affirmed. My findings and reasons are as follows.

   Country of reference and home area

2. The applicants claim to be nationals of China originally from Fujian province. They presented and I have viewed certified copies of their Chinese identity cards, their Chinese marriage certificate and an extract of their Chinese household registration book (hukou) indicating that their household registration is at an address in [a] town, Fuqing city in Fujian province. They testified the address has continued to be their hukou address.

3. The first named applicant has presented two Chinese passports. One was issued in Fujian province (the Fujian passport). The Fujian passport was issued to [name]. That name, as well as the date of birth and identity card number in the Fujian passport corresponds to those in the identity card, marriage certificate and hukou. The other passport was issued in Jiangxi province (the Jiangxi passport). The Jiangxi passport was issued in the name of [alias] and the identity card number in that passport is different to that on the identity card, hukou, marriage certificate and Fujian passport before me. The first named applicant acknowledged at the hearing that the Jiangxi passport was obtained on the basis of false information and/or documentation. It is claimed that he obtained that passport because he was on a blacklist or watch list. On the basis of the identity card, marriage certificate, hukou and Fujian passport issued in the name of [name], I find that the first named applicant is [name], that he is a national of China and that his home area in China is [a] town, Fuqing city in Fujian province.

4. The second named applicant claimed that she entered Australia on a false [country] passport. She testified at the hearing that she obtained the false passport because she was not permitted to leave China due to problems she had in [Province 1] relating to her religious practice. It is claimed that she too was on a blacklist or watchlist. On the basis of the identity card, marriage certificate, and hukou before me I find that the second named applicant is [name],[17] that she is a national of China and that her home area in China is [a] town, Fuqing city in Fujian province.

   [17] Also spelt [name].

   First named applicant’s claims relating to [relative’s] business in China

5. Broadly speaking, the first named applicant claims that he fled China and came to Australia due to problems that arose when local military officials refused to pay for work undertaken by a [business] in Xinxiang province which he worked for and was owned by his [relative]. He detailed those claims in the statutory declaration he submitted with his first protection visa application and which he relied upon in this review. However, the testimony the first named applicant gave about this claim at the hearing was inconsistent in significant respects with both the statutory declaration and other evidence.  

6. The first named applicant testified that prior to coming to Australia he tried unsuccessfully to flee to the [another country] [because] he had lost a court case in Xinxiang and wanted to run away. He said he, his [relative] and workers in his [relative’s] business had tried to get the army to pay. The court case, he said, had gone on for years but the army did not pay. They went to the municipal government but were charged with offences of disturbing public order. Subsequently, after a physical fight with soldiers, the first named applicant, his [relative] and some workers were charged with the more serious offence [and] arrested. He was mistreated in detention and was the only one released because he had such a [medical condition] it was feared he would die in custody. All of this happened, he said, before he went to [Region 1]. Thus, the timing of the first named applicant’s travel to [Region 1] is significant.

7. The first named applicant testified that he attempted to leave [Region 1] using someone else’s passport with a photograph of himself substituted in the passport but he was discovered by the [Region 1] authorities on the plane shortly before it was due to depart [in] February 2005. He said he was arrested, convicted and gaoled in [Region 1] for [number] months for using a false passport. This is consistent with information in his current protection visa application. The first named applicant testified that after his release he returned to China using the Fujian passport. At the hearing I discussed with the first named applicant the stamps in the Fujian passport. I noted that they did not indicate that he arrived in [Region 1] [in] February 2005 or that he departed [number of] months later in August 2005 as suggested by his testimony. Instead there was a stamp indicating he departed [Region 1] [in] August 2006. He could not explain this and indicated that there was confusion. I consider the stamps in the passport more reliable than the first named applicant’s testimony and thus find that the first named applicant went to [Region 1] sometime prior to [date] August 2006 and left [Region 1] on that date. However, according to the first named applicant’s statutory declaration the Xinxiang project was completed in October 2006, after the first named applicant had returned from [Region 1]. This indicates that the first named applicant did not try to leave via [Region 1] due to problems with non-payment for that project.   

8. There are other significant discrepancies between the first named applicant’s testimony that he fled to [Region 1] due to the law suit over non-payment and his statutory declaration. For example, according to the statutory declaration it was after the first named applicant returned from a trip to [another country] in January 2007 (to meet a relative about a [certain] business venture) that his [relative] attempted to commence legal proceedings to obtain payment for the work that had been done. Further, according to the statutory declaration, the court application was refused by the court early in 2007 on the grounds that the matter should be dealt with a military court not a civil court. This is inconsistent with the first named applicant’s testimony that he had been involved in a court case for years to try to obtain payment.

9. In addition, the first named applicant stated in his statutory declaration that his [relative] and some workers were arrested and detained after a protest [in] February 2007 and that all of them were released after being forced to pay [amount]RMB and promise not to protest again. However, the first named applicant testified that only he was released from detention.

10. The explanation the first named applicant gave for the above inconsistencies was that the events occurred many years ago and so he could not recall exactly when they occurred. He indicated that otherwise his testimony was consistent with the claims in his statutory declaration. Given the lapse of time I did not expect the first named applicant to be able to recall the precise dates of events. However, I do not accept that he would not be able to recall whether the events he detailed in his statutory declaration occurred before or after he went to [Region 1] if he had gone to [Region 1] to escape the problems in Xinxiang. Further, the oral evidence he gave that there had been a court case which went on for years is not consistent with his written claim which indicated that an application to the court to commence proceedings was rejected by the court shortly after the application was lodged. Nor do I consider the oral evidence he gave that only he was released from detention is consistent with his written statement that he, his [relative] and the workers who were arrested were all released from detention.

11. In light of these significant inconsistencies, I do not accept that the first named applicant had any of problems or experienced any of harm in relation to his [relative’s] [business] in Xinxiang, that he was involved in any complaints, actions or lawsuit relating to the business, or that he faced any problems arising from any complaints, actions or law suit associated with the business, or that he was charged with any offences in Xinxiang, or that he was arrested, detained or mistreated in detention in Xinxiang. I thus do not accept that the first named applicant was or is on a blacklist or watchlist, or that he went to [Region 1] or came to Australia to escape harm in China arising from his [relative’s] business in Xinxiang.  Having rejected those claims I find that the first named applicant does not face any harm in the future in China for any reason related to his [relative’s] business or any lawsuit. I do however accept that the first named applicant worked in an [relative’s] business in Xinxiang province as he has been consistent about that claim. 

    Second named applicant’s religion claim

12. The second named applicant claims to fear harm for reasons of her involvement with the True Jesus Church (TJC) if she returns to China.

13. The second named applicant provided a detailed account of how she became a Christian and member of an underground church in China and the harm she experienced as a result in her first protection visa application. She subsequently specified that the church was the TJC and claims to have attended the TJC in Australia. According to sources I have consulted, the TJC is an independent Pentecostal church founded in Beijing in 1917 which is not registered with the ‘Three-Self Patriotic Movement’ structure (the Chinese government’s organisation for sanctioned Protestant religious activities).[18]

    [18] ‘Pentecostal Theology and the Chinese Church’, China Source, 21 January 2015, p.1; ‘Pentecostal Christianity and Church-State Relations in China: The Case of the True Jesus Church Movement ’, Jiexia Zhai Autry, 16 September 2013, The Review of Faith and International Affairs 11(3), pp.40-51, p.40; ‘Protestant Christianity in the People’s Republic’, Linlin Victoria Lu, 29 January 2016, China Currents 15(1), p.11; True Jesus Church website, ‘About Our Church – Facts and History’, Tribunal file 1503968, f.163.  

14. For the reasons I give below, I find that the second named applicant attended a TJC in China for a short period of a few months and has been attending that church in Australia but I do not accept that she was harmed for her involvement with the TJC in China in the past or that there is a real risk she will suffer significant harm if she resumes her religious practice in China.

15. According to the second named applicant’s written claims, she moved to [Province 1] in March 2008 to work in a [workplace]. In about May 2008, a man from Henan province named [Mr A] began working at the [workplace] with her. He was a devout Christian and preacher in an underground Christian church who had come to [Province 1] to escape being arrested for his active role in the underground church in Henan province. She claimed she was converted to Christianity by [Mr A] and then helped [Mr A] to evangelise to locals. She claimed that she converted a customer, [Mr B], in August 2008 and then the three of them organised a Bible study group and had secret gatherings. In early January 2009, [Mr A] divided the Bible study group into two secret gathering groups and the second named applicant was responsible for one of the groups. [Mr A] produced promotional material and asked her and [Mr B] to organise the distribution of the material. [In] April 2009, the second named applicant and [Mr A] were stopped by the police on their way home from a gathering. The police were chasing a suspect who had escaped from a detention centre but realising [Mr A] was on a blacklist arrested him and took her as well because she was suspected of being his associate. The second named applicant claimed she was interrogated about [Mr A]’s illegal religious activities and detained for [number] months during which time she was harmed physically and mentally by the police. Eventually she was released through bribery with the help of church brothers and sisters. She had to report to the PSB (the Chinese police) once a week and not allowed to go anywhere without permission. She decided to flee and returned to her hometown in Fujian in July 2009 before going to [Region 1] and then Australia on a false [passport]. She was regarded as a key member who played an active role in illegal religious activities. The police investigated her family in Fujian and searched for her in [Province 1] and Fujian.

16. In significant respects, the testimony the second named applicant gave at the hearing about events in China relating to her claimed religious activity was flawed and varied from her written claims.

17. She testified that she was introduced to the TJC in [Province 1] China by a man named [name]. However, as indicated above, according to her written claims she was introduced to Christianity and the church by [Mr A]. Asked to explain this inconsistency, the second named applicant replied that she was very nervous and mistook the name of her friend’s husband. I do not accept that being nervous explains such a significant inconsistency. If, as she claimed, [Mr A] introduced her to the TJC and converted her to Christianity, she helped him evangelise, he asked her to distribute material, she and [Mr A] organised secret religious gatherings, and she was arrested with [Mr A] then I do not accept that she could mistakenly name another person even if she was nervous.

18. The second named applicant initially testified that [Mr A] was from her own province of Fujian. After a short hearing adjournment, she corrected that testimony stating that she had misunderstood and thought I had asked about her husband’s province. Asked what province [Mr A] was from, the second named applicant said she could not recall. I noted that according to her written claims he was from Henan to which she responded that she just forgot. Asked why she thought I had asked about her husband’s province when there had been no discussion of her husband and my questions were about [Mr A], she responded that she could not really explain, referred to her mental state and her limited education which, she said, affected her ability to understand quickly and express herself correctly. I do not accept these explanations. I not accept that the second named applicant’s mental state (even taking into the medical report from [Dr A] referred to below) or limited education led her to misunderstand who I was asking about. The questions I had asked the second named applicant before I asked what province [Mr A] was from were how she came to be involved in the TJC in China, the name of the person she met in [Province 1] who told her about Jesus and how she learned about the TJC. Further, after she responded that [Mr A] from [a] town, Fuqing city in Fujian province, I confirmed, referring to [Mr A] by name, that she had met him in [Province 1] and that it was there that he introduced her to the TJC and Jesus. Thus, it would have been abundantly clear to the second named applicant that I was not asking about her husband. Further, if the second named applicant was aware that [Mr A] came to [Province 1] from Henan province to escape arrest for being involved in the underground church when she made her first protection visa application then I expect that she would have been able to recall that he was from that province at the hearing even with the lapse of time given the significant role she claims he played in her religious life and religious activities in China.

19. The second named applicant’s responses to questions about her religious practice in China were very broad, unforthcoming and delivered in an uncertain manner. Asked how she practised she merely mentioned preaching the gospel. Questioned who she preached to and where, she named one person, a customer, and said they gathered together, studied the Bible, sang hymns and told people Jesus is the saviour. Asked whether she engaged in any other activities associated with the TJC, she replied vaguely that there were not many as she normally stayed in the [workplace] where she preached the gospel. She did not indicate that she was a key member or that she had an active role as stated in her written claims. More significantly, contrary to her written claim that she led one of the gathering groups, she testified that [Mr A] organised and led the gatherings. Asked to explain this, the second named applicant stated that she was not expressive or eloquent and if she is not asked she would not tell me about those matters.  I do not accept that the second named applicant did not mention these matters for those reasons because the testimony she gave about the beliefs and religious practices of the TJC were detailed, expressive and delivered in a confident manner. Thus, if she was a key member of the church, had an active role and had responsibility for one of the gatherings groups as she claimed in her written claims I expect that she would have been able to provide more detailed and forthcoming testimony when asked how she practised her religion in China and what religious activities she engaged in. Further, her claimed inability to express herself and lack of eloquence does not explain why she did not say that she led a gathering group in China when asked directly who organised and led the gatherings.  

20. Contrary to the account she gave in writing that she was arrested walking on a street with [Mr A] when the police recognised he was on a blacklist, the second named applicant testified that she was at a gathering with [Mr A] and others when the police came and arrested her and those who were unable to escape. In response to this inconsistency the second named applicant told me that her written statement should be clear and she may not have expressed herself very clearly at the hearing. I do not accept that explanation. It was not a matter of a lack of clarity but an entirely different account of the circumstances in which she was arrested.

21. According to the second named applicant’s written claims, her family in Fujian had been investigated by the police, the place she lived in in [Province 1] and her home in Fujian were searched, and the police were looking for her everywhere. Yet when I asked whether her [child 1] had been in danger, she seemed intentionally evasive. Asked whether she believed her [Child 1] was in danger when she left China, she replied that she did not think of that. I do not find it credible that if the second named applicant had been arrested, detained and mistreated and felt she had to flee China that she would not have thought about whether her [Child 1], who she confirmed was only [age] at the time, could be in danger. Questioned further, she said she was not sure whether the authorities had come looking for her at her home in Fujian despite having claimed that her home in Fujian had been searched and the police were looking for her everywhere. Asked whether her mother or [Child 1] had told her that the authorities had coming looking for her, first she replied ‘no’ then that she was not sure and then that is ‘seems’ they told her. Her response initially contradicted her written claims then shifted and overall was vague. Questioned about her inability to recall something like that, she replied her mental state was not good, it has been some years and she could not remember well. If, as she claimed in writing, her family in Fujian was investigated, her home in Fujian was searched and the police were looking for her everywhere to arrest her then I expect these are matters she would be able to recall even after so many years and having regard to her mental state.

22. Finally, based on the information on the TJC website,[19] the knowledge the second named applicant demonstrated during her hearing with the RRT about the church’s beliefs and practices seemed basic given she claimed to have been a key member of the church with an active role which included converting others to Christianity, jointly organising a Bible study group, and leading a secret church gathering. At the hearing before me she said that was because she was not very expressive and if not asked questions she cannot provide details. However, the RRT member did ask very specific questions about TJC beliefs and practices. Also when I questioned the second named applicant at some length about the church’s beliefs and practices, she testified with apparent ease and demonstrated what seemed to me to be a very good knowledge of its beliefs and practices. In fact that testimony, unlike much of her other testimony, was detailed and given in a forthright and confident manner.

    [19] True Jesus Church website, ‘About Our Church – Statement of Faith’, Tribunal file 1503968, ff.164-165.

1. In light of the unsatisfactory nature of the testimony the second named applicant gave about her religious activities in [Province 1], and the rudimentary knowledge she demonstrated at her RRT hearing, I do not accept that she was introduced to the TJC in [Province 1] by a man who had fled from Henan province due problems he had there, that she was a key member of the TJC in [Province 1] who preached to and converted others, organised a Bible study group or led a secret gathering, or that she was arrested, detained or harmed in any way due to her involvement with the TJC in [Province 1]. I thus do not accept that she came to the adverse attention of the authorities in China for her religious practice, that she was told not to leave [Province 1] or China without permission, or that she is or was on a blacklist or watchlist. Further, while I have doubts that the second named applicant was involved with the TJC in China at all, I cannot confidently make such a find given she displayed a basic understanding of the TJC beliefs and practices at the RRT hearing not very long after she arrived in Australia. I thus accept that the second named applicant attended a TJC in China for a short period of time of a few months before she came to Australia as she testified. However, due to the flaws in her testimony, I do not accept that she or any member of her family in China has faced harm from the police or the authorities due to her past religious practice in China.

2. Given the persuasive testimony the second named applicant gave before me about her religious beliefs, along with the letters from members of the TJC in [a city in Australia] who attest to her involvement in the church here for many years,[20] I accept that the second named applicant is now and has been for some years a genuine follower of the TJC. She testified that her religious practice in Australia involves attending church each Saturday and sometimes attending family gatherings at the homes of people who live close by. This account of her activities is consistent with the letters from the church members. I thus accept that the second named applicant attends the TJC each week and sometimes attends family gatherings. The second named applicant did not claim that she has led Bible studies, organised gatherings, preached or proselytised in Australia. On the basis of her religious practice in Australia, I find that the second named applicant would continue to practise her religion in China as she has in Australia, namely attend a TJC each week and occasionally attend gatherings at the homes of TJC members. I find on the evidence before me that she has not preached or proselytised in the past and on that basis find that she will not do so if she returns to China.

   [20] Tribunal file 1503968, ff.51-58.

3. Relevant to my assessment of the risk of harm the second named applicant would face in China if she continued to practise her religion, is the testimony she gave that her [sibling] and [family member], who live in her home province of Fujian, attend the TJC. Asked whether they had any problems practising their religion, the second named applicant testified that they now have a church but that things with the government can change. For example, she said, when they were building the church the government did not allow them to put up a TJC banner in the church but when the followers protested they were allowed to put it up. Questioned further about this incident, the second named applicant stated that it had occurred sometime in the past. I accept this incident occurred because, in contrast to the testimony she gave about her religious activity in [Province 1], this evidence was detailed, spontaneous and forthright. However, I find it does not indicate that the second named applicant would face significant harm for attending a TJC in her home area. Firstly, because it is just one incident and the decision by the authorities not to allow the TJC banner was reversed once the church members complained without, it seems, the followers being subjected to any harm.  I put to the second named applicant that given it seemed her [sibling] and [family member] are able practise their religion in Fujian it seemed she could do the same without facing significant harm. She replied that religion was one thing but there was also the issue of her mental health and [Medical condition 1]. I consider it noteworthy that she gave no indication in her reply that she would face significant harm in the future if she returned to her home area in Fujian and attended a TJC church.

4. Further, as I noted at the hearing the information before me indicates that while the members of some churches in China that do not register with the authorities and choose to remain independent can face harm, the treatment of members of unregistered churches by the Chinese authorities varies from location to location depending on the attitude local authorities.[21] I put to the second named applicant that in light of that information and the fact it seemed her [sibling] and [family member] in Fujian had not experienced significant harm for their involvement with the TJC, it appeared there was not a real risk that she would face harm if she returned and attended the TJC in Fujian. The second named applicant responded that the local government can change and there was not much religious freedom over there. She added that she had been persecuted in the past so her record would be there and she left [Province 1] without permission so she may face persecution in the future. I have rejected the claims the second named applicant made in relation to [Province 1] and thus I do not accept she has an adverse profile in [Province 1] or China generally for reasons related to religion or [Province 1]. I then put to the second named applicant that the information also indicates that Fujian province tends to have a liberal and relaxed attitude to unregistered churches.[22] She replied that she was not sure about that. On the basis of the information about the attitude of the authorities in Fujian to unregistered religious groups, the fact that she has family members who attend the TJC in Fujian without experiencing significant harm, and my finding that the second named applicant would practise her religion in China as she has in Australia by attending church weekly and home gatherings occasionally, I find that there is not a real risk that the second named applicant will suffer significant harm for reasons related to religion in Fujian.

   [21] DFAT Thematic Report: Unregistered religious organisations and other groups in the People’s Republic of China (3 March 2015), [2.11].

   [22] DFAT Thematic Report: Fujian province, People’s Republic of China (16 December 2016), [3.5], [3.8].

   [Medical Condition 1] and mental illness

   Diagnoses and treatment

5. The applicants have presented medical evidence which states that each has [Medical Condition 1].[23] One report notes that while there is no evidence of [symptoms] (at present) there is a risk of accelerated progression if the [conditions] are not treated.[24] According to the testimony of the applicants, they were diagnosed with the [condition] in Australia. I accept on the basis of the medical evidence that each applicant has [Medical Condition 1].

   [23] Tribunal file 1503968, ff.63-67.

   [24] Tribunal file 1503968, f.67.

6. Also submitted were two psychiatric reports, one relating to each applicant from [Dr A] who states that s/he is a qualified and registered medical practitioner.[25] I confirmed [Dr A] is registered as a medical practitioner with [a professional body].[26] [Dr A] also states that s/he has been a member of [another professional body] since 1984 and currently practices at a [clinic]. I am unsure what that means given [Dr A] does not indicate membership of [a professional body in Australia] and my search of the [register] yielded no results for [Dr A].[27] In any event, as [one of the professional body] register records [Dr A]’s speciality as psychiatry I accept that s/he is qualified to diagnose mental illness.

   [25] Tribunal file 1503968, ff.59-63

   [26] Tribunal file 1503968, f.170.

   [27] Tribunal file 1503968, f.171.

7. According to the reports, [Dr A] saw each applicant on [number] occasions and the reports were based on information provided by the applicants and their ‘solicitor’.[28] [Dr A] diagnosed each applicant as suffering [symptoms] and stated that the first named applicant needed psychological support and ongoing psychiatric assessment and possibly [medication], and that the second named applicant is being treated for depression by her general practitioner having been prescribed an anti-depressant for about a year which she had only taken intermittently due to financial constraints. [Dr A] provided the opinion that the second named applicant needs ongoing psychiatric treatment and to continue with her anti-depressant medication.

   [28] The migration agent emphasised during the hearing that while the applicants have referred to her as a lawyer or solicitor she is not a solicitor and has not held herself out to be a solicitor.

8. As [Dr A] is qualified to diagnose mental illness, I accept that the applicants have [symptoms]. I have taken those diagnoses into account in assessing their testimonies but have concluded that their conditions do not explain the flaws in their testimony which I have identified in my decision. I have given no weight to the statements made by [Dr A] that the first named applicant is unlikely and the second named applicant extremely unlikely to receive any psychiatric or psychological treatment in China as the reports give no indication that [Dr A] is qualified to provide an opinion about the mental health care services which would be available to the applicants in China.

9. According to the medical evidence regarding the applicants’ [Medical Condition 1], the first named applicant takes medication for the [condition] while the second named applicant does not. The first named applicant testified that the medication is heavily subsidised by Medicare, he takes it daily and he will need to keep taking such medication for the rest of his life. In response to being asked whether he had made inquiries about the cost of the medication in China, he replied that with his Medicare card he paid $[amount] for the medication which would otherwise cost $[amount] and is the equivalent of [amount]RMB or more. He testified he was not taking medication or having any treatment for his mental health. I thus accept that the first named applicant requires and takes medication daily for his [Medical Condition 1] and receives no treatment for his mental health.

10. The second named applicant’s testimony about the treatment she is undergoing for her mental health and [Medical Condition 1] was most unforthcoming. This was perplexing given she claimed to fear future harm for reasons relating to her [Medical Condition 1] and mental health. Eventually she indicated that she was taking anti-depressant medication for her mental illness but was not undergoing any other psychological or psychiatric treatment due to a lack of time and expense. This does not seem credible given she says she spends most of her days at home and her testimony indicates she can obtain a Medicare card. In relation to her [Medical Condition 1], she indicated after considerable questioning that she did not have any treatment because she sometimes had a Medicare card and sometimes did not, and it took a long time to get an appointment at [a certain] Hospital. Yet she also testified that her husband took medication daily for his [Medical Condition 1] which indicates that he found the time and made arrangements to ensure he obtained his Medicare card to access the treatment he needed. It seems to me that the reasons the second named applicant gave for not taking [Medical Condition 1] medication and intermittently taking anti-depressants was not entirely truthful. Even so, in light of the medical evidence, I accept that she has taken anti-depressants intermittently, and while not taking any medication for her [Medical Condition 1] is likely to need to take such medication in the future.

    Future health-related harm – stigma and discrimination in employment

11. In relation to future harm the applicants would face in China due to their [Medical Condition 1] and mental illnesses, their migration agent claimed in written submissions that they had a well-founded fear of persecution in relation to employment on the basis of their membership of a particular social group of ‘mental health and [Medical Condition 1]’. She cited reports of discrimination and stigma associated with mental illness and [Medical Condition 1] in China, and submitted that the applicants would face stigma and discrimination due to their [Medical Condition 1] and mental illnesses which, along with their limited education, would limit their employment opportunities, or require them to move far from their registered household in Fujian to find employment as they had done in the past. Harm for reasons of membership of a particular social group relates to the refugee criterion. The migration agent made no express arguments in her submission in relation to the complementary protection criterion. As indicated above I have nevertheless had regard to her submissions insofar as they are relevant to the complementary protection criterion.

12. The first named applicant needed to be prompted at the hearing to recall that he had seen [Dr A] and when I asked whether he feared harm in China due to his mental health, he replied hesitantly ‘yes, I suppose so, yes’. This does not indicate that the first named applicant has a genuine fear of harm for reasons of his mental health. Asked what harm he feared, he did not identify any specific harm he would face due to his mental health but said his worry was that he, his wife and children have [Medical Condition 1] and the medication is expensive. He said that in Australia it was only [amount]-something dollars but in China it would be thousands of dollars and furthermore he would not be able to find employment in China. He indicated there were better employment opportunities in Australia and was hence able to meet living expenses. The first named applicant did not himself express any concern that he would be unable to find employment in China due to his mental condition despite being asked several times about the harm he would face if he returned to China.

13. The second named applicant testified that if her [Medical Condition 1] was untreated she would probably die and that while the medication in Australia was very good it was not good in China nor could they afford it. She said that her husband’s father had been sick for a long time and committed suicide because he did not have the money for medication and she feared this may occur to the first named applicant. The first named applicant himself gave no indication that he feared he may be at risk of suicide. The second named applicant  added that her primary concern was being separated from her [Child 2]. Later in the hearing she also said that as the applicants had not been in China they had stopped paying the (health) premium and so would not enjoy the (health) service.

14. I put to the applicants that according to information before me it was unlawful to discriminate against people with the [Medical Condition 1] in China, a rule was introduced in 2010 banning the testing for [Medical Condition 1] in employment and while some discrimination on the basis of [Medical Condition 1] occurred, there did not appear to be a real risk that they could not get any employment.[29] The first named applicant responded there was no fair treatment in China at all, it depended on the individual and if your [Medical Condition 1] is discovered you would be kicked away. Their migration agent submitted that testing of people for [Medical Condition 1] in China is intentional and there was an intention to deny employment. She noted reports cited in her pre-hearing submission which stated that despite a ban in 2010 on mandatory [Medical Condition 1] testing for job and school applications, many companies continued such testing as part of their pre-employment screening, and that of [number] state owned enterprises, [a percentage] still conducted [Medical Condition 1] testing and [a percentage] stated they would reject job candidates with [Medical Condition 1].[30] I have consulted and had regard to the independent sources cited by the migration agent in her submission.

    [29] [Source deleted]

    [30] Tribunal file 1503968, f.85.

15. According to the second named applicant’s current protection visa application she worked as [an occupation] in [workplaces] and was self-employed in her own [business] in China but has not worked in Australia. This is consistent with the employment details she provided in her first protection visa application.  I thus accept that is true. The second named applicant testified that she now spends most of her time home. There is nothing before me to contradict that and thus I accept that is true. That means the second named applicant has not worked in Australia for about 8 years even though it is claimed and was highlighted by the applicants’ migration agent that their financial circumstances in Australia have been difficult. The second named applicant herself did not claim during the hearing, despite ample opportunity to do so, that she intends to or wishes to seek employment in the reasonably foreseeable if she returns to China. I thus give no weight to the migration agent’s submissions insofar as they relate to the second named applicant being unable to find employment due to her health issues. Instead, I find that the second named applicant does not intend to seek work in the reasonably foreseeable future if she returns to China given she has not worked in Australia for the last 8 years and thus does not face a real risk of discrimination or other harm in employment on the basis of her [Medical Condition 1] and/or mental illness.

16. The first named applicant stated in his current protection visa application that prior to coming to Australia he was [in an occupation]. He testified at the hearing that in Australia he worked as [an occupation] and sometimes, when he could not find work as [an occupation], he worked as [another occupation] which is broadly speaking also related [to his original occupation]. The first named applicant has been consistent over the course of his applications and evidence about working in areas related to [occupations]. Thus, I accept that he had undertaken such work.

17. Asked why he would not be able to find employment in China, the first named applicant testified that to work in a [certain workplace] you would normally have to produce a health [report]. However, the second named applicant has not, on his own evidence, worked in a [workplace] in China or in Australia. I noted that the first named applicant has been employed in various kinds of work and thus it seemed there would be employment opportunities available to him in the future which would not require a health report. He said that may be the case and he might for example be able to work as a street vendor but local patrols would ban him from doing that. He added that he was also worried they would cause trouble because of the police clearance certificate he obtained. The first named applicant has not indicated that a health report would be required to work in the areas he has experience [in]. Asked why he could not do [certain] work in China, he stated that there were only [certain] jobs in the [city]. Asked why he could not work in a city given he had previously moved from his home area to work, he replied that he had been on the road for 10 to 20 years and had lost all his money because of the law suit.

18. I have rejected that the first named had anything to do with a law suit in China thus I do not accept that he lost all his money in a law suit. I deal with the matter of police clearance certificates below and conclude that obtaining his police clearance certificate does not give rise to a real risk of difficulties finding employment in China or any other significant harm.

1. I accept on the evidence before me that discrimination against people with [Medical Condition 1] including pre-employment screening occurs in China. However, the first named applicant has not claimed that he worked in state enterprises [in] the past, that he had to undergo pre-employment health screening for any of the types of jobs he had in China in the past or that he would have to undergo screening or disclosure his [Medical Condition 1] to do the type of work he has experience in.

2. In relation to the other claims made in connection with employment primarily by his migration agent, I accept that the first named applicant has had a limited education which will mean he is not qualified for certain jobs however his limited education has not prevented him finding work in China in the past and I am not satisfied on the evidence before me that it will prevent him finding work in the future.

3. In relation to having travel away from his home area to find work, I find that while the first named applicant may prefer not to do so he has been willing to do so in the past including at a time when, as his migration agent observed at the hearing, his [Child 1] was very young. This indicates to me that the first named applicant could and would move away from his home area to work in the future to find employment.

4. Regarding living expenses, the first named applicant did not claim that he had been unable to meet living expenses in the past in China and thus I am not satisfied he would not be able to meet living expenses in the future in China by undertaking the kind of work he has in the past in China and/or moving from his home area to find work.

5. Furthermore, I find that the evidence before me does not indicate that in China the consequences of his limited education, his preference not to move away from his home area and the fact it may be easier to find work and meet living expenses in Australia would involve an arbitrary deprivation of life, the imposition of the death penalty, the infliction of any pain or suffering for one of more of the five reasons referred to in the definition of ‘torture’ in s.5(1), nor an act or omission intended to cause the kind of harm referred to in the definitions of ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’ in s.5(1).

6. Having regard to the above, I accept that the first named applicant could face some stigma and discrimination due to his [Medical Condition 1] in employment. However, I am not satisfied given the range and type of work the first named applicant has undertaken in China in the past that there are substantial grounds for believing that there is a real risk that he would face pre-employment health testing, stigma and/or discrimination due to his [Medical Condition 1] to the extent that he would be unable to find the type of work he has undertaken in the past or would result in the arbitrary deprivation of his life, ‘torture’ as defined in s.5(1), or harm rising to the level of ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’ referred to in s.5(1). It would seem to go without saying that there is no suggestion that the death penalty will be carried out in connection with the first named applicant’s [Medical Condition 1]. I deal with the first named applicant’s mental health and employment below.

7. It has not been expressly claimed that the applicants face stigma or discrimination due to their [Medical Condition 1] in areas other than employment. While the evidence before me indicates that stigma and discrimination exists in China particularly in employment and education, I am not satisfied that there are substantial grounds for believing that there is a real risk that the applicants would suffer face stigma, discrimination or other harm in China due to their [Medical Condition 1] of a nature or to such a degree as would amount to significant harm as defined in s.36(2A).

8. In relation to the applicants’ mental illnesses, [Dr A] has not identified that either applicant suffers a severe or moderate level of mental illness or that the second named applicant requires significant doses of anti-depressant medication. The applicants themselves did not express concerns that they would be subject to stigma or discrimination due to their mental disorder. Despite indicating that they have been under considerable stress for years due a number a factors including their separation from their [Child 1], unresolved immigration status in Australia, financial difficulties and their [Medical Condition 1], the applicants have, on the evidence before me, been able to raise their [Child 2], the second named applicant has been able to continue to attend church, and the first named applicant has been able to find work to support his family and send money back to China.[31] The first named applicant has been able to do this without any treatment for his mental illness and the second named applicant has been able to manage with intermittent use of anti-depressants. This demonstrates that the applicants are resilient, have the ability to adapt and function on a day-to-day basis in challenging circumstances in spite of their mental illnesses and with minimal treatment in the case of the second named applicant and no treatment in the case of the first named applicant. Given the nature and lack of severity of the first named applicant’s mental condition, I find that his condition would not be apparent to an employer in China and even if his mental illness was disclosed or discovered there is not a real risk that he would be discriminated against to the extent that he would not be able to find employment. Further, given the nature and lack of severity of the applicants’ mental disorders, I find that there is not a real risk that either would face stigma, discrimination or other harm in China of such a nature or to such a degree as would amount to significant harm as defined in s.36(2A) even if their mental illnesses were disclosed or came to the attention of others.

   Future health-related harm – medical treatment

   [31] See copies of money transfers on Tribunal file 1503968, ff.100-101.

9. I outlined the definition of significant harm in s.36(2A) at the hearing and put to the applicants that their concerns about being able to access and afford the medical treatment they would need did not seem to amount to significant harm as defined in the Act. I noted judicial authority that the consequences of limited medical resources did not of itself amount to an arbitrary deprivation of life[32] and that the other possible applicable types of significant harm involve an element of intention to harm. I put to them that according to information in sources I had consulted it is unlawful to discriminate against [Medical Condition 1] people in China, the Chinese authorities are aware of the situation for [Medical Condition 1] people and the needs of people with mental illnesses, there were health care policies aimed at assisting [Medical Condition 1] people and people with mental illnesses, and there did not appear to be an intention to deprive medication or treatment to people with mental illnesses or [Medical Condition 1] or to harm or humiliate them.[33] In response, the second named applicant stated that the applicants can receive good treatment in Australia but it would not be the same were they to return to China. The first named applicant stated that he did not know (about the information I had put to him), all he knew was that everything was okay in Australia, he can get his medication here, and he did not know what would happen in China.

   [32] MZAAJ v MIBP [2015] FCCA 151 (Judge Riley, 4 February 2015) in obiter dicta comments at [42] and upheld on appeal: MZAAJ v MIBP [2015] FCA 478 (Pagone J, 18 May 2015) (special leave application dismissed: MZAAJ v MIBP [2015] HCATrans 238, (Gordon J, 15 September 2015)).

   [33] [Source deleted]China-India Mental Health Alliance, ‘The magnitude of and health system responses to mental health treatment gap in adults in India and China’, Lancet_2016.pdf; Park L., Xiao Z., Worth J., Park J.M., ‘Mental Health Care in China: Recent Changes and Future Challenges’, Harvard Health Policy Review, Vol. 6, No. 2, Fall 2005, currentissue/park.pdf. 

10. Giving ‘arbitrarily deprived’ its ordinary meaning,[34] and having regard to judicial comments which suggest that being arbitrarily deprived of one’s life concerns matters such as extrajudicial killings and excessive police use of police force rather than the consequences of scare resources,[35] and the information before me about the anti-discrimination law, health policies in China and the efforts of the Chinese authorities to provide care to people with the [Medical Condition 1] and mental illnesses, I find that not being able to access or afford the medical treatment in China of the same quality as the applicants would be able to access and afford in Australia, and the consequences of that does not amount to the applicants being arbitrarily deprived of their lives. I find on the independent evidence that there is not a real risk that, by an act or omission, the applicants will intentionally be deprived of affordable  and good quality treatment to meet their health needs so as to amount to ‘cruel or inhuman treatment or punishment’, or ‘degrading treatment or punishment’ as defined in s.5(1).  The death penalty being carried out is not relevant to these claims and there is no suggestion in the claims and evidence that the applicants will be subjected to harm connected to the medical treatment for any of the five reasons referred to in the definition of torture.

    [34] MZAAJ v MIBP [2015] FCA 478 (Pagone J, 18 May 2015) at [6].

    [35] See fn 32 above.

11. I therefore conclude that there is not a real risk that the applicants will suffer significant harm as defined in s.36(2A) in China in relation to the medical treatment for their [Medical Condition 1] and/or mental illnesses.

    Police clearance certificates, failed asylum seekers and returnees

12. Prior to the hearing the applicants and their migration agent made various claims about the consequences of the applicants obtaining the police clearance certificates. For example, in a written submission prepared before the certificates were obtained but presented on review,[36] their migration agent claimed that because a police clearance certificate is provided by the local PSB in China and the local authorities would be aware that the applicants have been missing from their registered residence for many years, the PSB would question why the applicants were requesting the police clearance certificates, the authorities may assume the certificates were required for overseas migration and that the applicants were asylum seekers. Once that assumption was made, it was submitted, the assumption would be made that the applicants were dissidents who engage in activities that criticise the Chinese government. The migration agent also referred to the reliability of the certificates if they were obtained given corruption and document fraud in China. Her submissions also indicate that, apart from having the police clearance certificates, the applicants face persecution as failed asylum seekers, returnees and due to the length of time they had been absent from China.

    [36] The Tribunal file 1503968, ff.46-49. 

13. The first named applicant’s testimony about the certificates was vague, unforthcoming and contradictory. Initially he testified that he asked a friend to obtain the certificates and that a bribe was paid to police officers. He said the bribe was paid because police officers in China live on these kinds of bribes - without them they could not survive on their salaries especially in the countryside where the first named applicant was from. When I queried whether the certificates were genuine if they were obtained by bribery and given the reports in the migration agent’s submissions of widespread corruption and document fraud in China, he responded that the certificates were real and had been verified by the certification office. Asked whether a false document could be produced by paying a bribe the first named applicant replied that it depended on whether the police had the guts to do it. Asked whether it was true, as stated in the police clearance certificate, that that the first named applicant  had no convictions the first named applicant initially replied that it was true but then that he didn’t know if he should say it was true or not before adding that he could not say anything about it clearly.  Asked why he could not do so, the first named applicant referred to the law suit in Xinxiang and said they should have some sort of record. In relation to his [Region 1] conviction, he indicated that as that offence occurred in [Region 1] it would not be reflected in a police clearance issued by his local authority in China. In response to being asked what future harm he would face because of the police clearance certificate, he replied vaguely there would be a lot of troubles yet when I questioned what troubles he responded that he did not know then that he did not think he would have problems because he was in Australia but he was afraid his friend would get into trouble for forging the document. The first named applicant added that if his friend’s supervisor found out, his friend may even lose his job. Hence, the first named applicant initially testified that the certificates were real but upon further questioning indicated that they were forged. I thus found his testimony about the genuineness of the police clearance certificate entirely unreliable.

14. The second named applicant testified that because the applicants were in Australia they asked some family in China to obtain the police clearance certificates for them and it cost money to obtain the certificates so the Chinese government knows the applicants are overseas. I queried why she believed that obtaining the police clearance would lead the authorities to make the assumptions claimed such as the applicants had applied for protection or spoken out against the Chinese government. The second named applicant replied that they had been away so many years and the authorities would know if they were deported. Asked what harm she would face if she returned to China because she applied for the police clearance, the length of time she had been in Australia, or because she was a failed asylum seeker, the second named applicant replied the applicants would be arrested.

15. Whether or not the police certificates are genuine, no evidence has been presented that in the three years since the certificates have been issued, any family member or friend of the applicants who assisted in procuring the police clearance certificates either through proper or improper means has been approached let alone harmed in any way by the local PSB or any Chinese authority in relation to the certificates.  Further, I find that the claims presented by and on behalf of the applicants in relation to the assumptions the authorities in China may make because the applicants obtained the police clearance certificates to be speculative.  I thus find that there are not substantial grounds for believing there is a real risk that either applicant will suffer any harm including in relation to employment for obtaining the police clearance certificates.

16. I put to the applicants that the claim that returning to China given the length of time they have been in Australia would lead the Chinese government to conclude they had applied for protection or spoken out against the Chinese government seemed speculative. Further, that even if the Chinese government did become aware they had applied for protection, according to (DFAT) information the Chinese authorities were concerned with returnees who had some kind of profile such as political activists.[37] I put to the applicants that it thus did not appear that simply returning after a long period of time or returning as a failed asylum seeker of itself would give rise to a real risk of significant harm. The second named applicant responded that may be true for some but not for others. She said some people were caught, interrogated, tortured and asked whether they had applied for protection visas. They were asked whether they applied for protection visa here or shown evidence that they had. The first named applicant did not respond to the issue and instead stated that he was concerned about the law suit and indicated that he can work 5 or 6 days a week in Australia and meet living expenses but would not be able to do so in China. Pressed on whether he feared harm due to the length of time he had been in Australia, he replied ‘I suppose not’.

    [37] Department of Foreign Affairs and Trade (DFAT), China - Country Information Request CI150402160444876 - Treatment of Returned Failed Asylum Seekers, 18 May 2015.

17. In written submissions, the applicants’ migration agent cited reports of failed asylum seekers and returnees who disappeared on their return to China. However, the precise circumstances of those individuals as well as those mentioned by the second named applicant during the hearing which may have made them of adverse interest to the authorities other than merely because they were returning failed asylum seekers or the length of time those individuals had spent outside China is not known. I prefer the information from DFAT which I put to the applicants at the hearing and find that the applicants do not have a profile, either actual or imputed, as failed asylum seekers, returnees or due to their long absence from China that would attract the adverse interest of the Chinese authorities.

18. During the hearing the applicant’s migration agent referred to the applicants not leaving China lawfully however the relevance of that to the applicants’ claims was neither articulated nor apparent. In her post-hearing submission, she stated that provisions in Chinese legislation in relation to failed asylum seekers needed to be examined. She cited Article 322 of the China’s Criminal Law which refers to the offence of secretly crossing national boundaries in serious circumstances and submitted that the applicants faced persecution as returning failed asylum seekers. However, she did not explain how, nor do I accept, that a law dealing with secretly crossing national boundaries is a law relating to failed asylum seekers. Further, the submission did not explain how Article 322 applies to the applicants given the manner in which they departed China. For example, whether the circumstances of their departure might be considered ‘serious circumstances’, or which, if any, punishment might be applied to the applicants given the nature of their departure from China let alone whether or how any punishment the applicants might face amounted to significant harm as defined in s.36(2A). I note that harm arising from lawful sanctions does not necessarily amount to significant harm as defined in s.36(2A).[38] As referred to above, it is an applicant’s responsibility to specify all the particulars of a protection claim and to provide sufficient evidence to establish the claim. I am not satisfied merely on the basis of Article 322 and the applicants apparently illegal departure from China that there is a real risk they would be convicted of an offence and/or face punishment under Chinese law that would amount to significant harm as defined in s.36(2A).

    [38] For example, the definitions of torture, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ do not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.

19. For the above reasons, I conclude there are not substantial grounds for believing that if the applicants were removed from Australia to China that there is a real risk they will suffer significant harm as defined in in s.36(2A) because they are returnees, failed asylum seekers, due the length of time they have been outside China and/or their unlawful departure from China.  

    Separation from [Child 2]

1. During the course of the hearing each applicant expressed concern about the fact that returning to China would mean being separated from their [Child 2]. Post-hearing their migration agent submitted that the fundamental rights and interest of a child must not be forgotten. She did not elaborate on how the rights and best interests of the applicants’ [Child 2] are relevant to the question of whether the applicants are owed complementary protection. According judicial authority, harm arising from the act of removal from Australia does not prima facie meet the definition of significant harm.[39] The applicants nor their migration agent have provided particulars or sufficient evidence to establish a claim that by virtue of the applicants removal from Australia to China they would suffer significant harm as that is defined in s.36(2A).

   [39] SZRSN v MIAC [2013] FCA 751 (Mansfield J, 6 August 2013) at [48]-[49], upholding the reasoning at first instance SZRSN v MIAC [2013] FMCA 78 (Driver FM, 1 March 2013) at [61]-[65]; WZARI v MIMAC [2013] FCA 788 (Siopis J, 9 August 2013) at [31]-[32] (special leave to appeal dismissed: WZARI v MIAC [2013] HCASL 201 (Kiefel and Keane JJ, 13 December 2013); and SZSNX v MIBP [2015] FCCA 2271 (Judge Driver, 30 September 2015) at [70]-[72] in which the Court applied SZRSN v MIAC [2013] FCA 751 in different factual circumstances, upholding the Tribunal’s findings that any psychological suffering the applicant may experience in being removed from Australia would not be intentionally inflicted or intended to subject him to further harm.

   Concluding findings

2. In light of my preceding findings and having regard to the risk of harm each applicant would suffer in China individually and cumulatively, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of either applicant being removed from Australia to China, there is a real risk that either applicant will suffer significant harm. I am thus not satisfied that either applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) for a protection visa.

3. As neither applicant satisfies s.36(2)(aa) and they cannot be considered under s.36(2)(a) it follows that they are also unable to satisfy the family membership criteria set out in s.36(2)(b) or (c). I note that the applicants’ [Child 2] holds a protection visa. However, as the applicants’ (current) protection visa application was made after their [Child 2] was granted a protection visa, they are prevented by s.65(1) and s.91WB from being granted protection visas pursuant to s.36(2)(b) or (c) on the basis of their membership of their [Child 2]’s family unit.

4. As the applicants do not satisfy the criteria for a protection visa for which they can be considered, they cannot be granted the visa.

   REFERRAL FOR MININSTERIAL INTERVENTION

5. During the course of the hearing the applicants’ migration agent requested, in the event of an unfavourable decision, that I make a referral for Ministerial intervention to allow the applicants to lodge a further protection visa application in relation to the refugee criterion. Having regard to the guidelines on the Ministerial intervention power under s.48A and the fact that the applicants have already made such a request and been refused, I have decided not to refer the matter on that basis.

6. However, having regard to the applicants’ circumstances and having considered the ministerial guidelines relating to the Minister’s discretionary power under s.417, set out in PAM3 ‘Minister’s guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J)’ I believe this case should be referred to the Department to be brought to the Minister’s attention. The particular circumstances are firstly, the impact the applicants’ removal from Australia would have on the wellbeing of their [Child 2] who is an Australian permanent resident and only [age]. Secondly, the fact it now seems apparent that the applicants’ second protection visa application was valid when it was lodged and thus they could have met the family membership criterion for protection visas when their [Child 2] was granted [the] protection visa in 2012. 

   DECISION

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

   Mila Foster
   Member