1509819 (Refugee)

[2017] AATA 1060

1509819 (Refugee) [2017] AATA 1060 (26 May 2017)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  1509819

COUNTRY OF REFERENCE:                  China

MEMBER:Louise Nicholls

DATE OF DECISION:  26 May 2017

DATE CORRIGENDUM

SIGNED:6 July 2017

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

The Tribunal amends the cover page of the decision record to read as follows:

The words on the Decision Record front page where it says “DATE:  25 May 2016” should be replaced with “DATE: 26 May 2017”

Louise Nicholls
Senior Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1509819

COUNTRY OF REFERENCE:                  China

MEMBER:Louise Nicholls

DATE:25 May 2017

PLACE OF DECISION:  Sydney

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

Statement made on 26 May 2017 at 2:28pm

CATCHWORDS

Refugee – Protection visa – China – Religion – Yi Guan Dao – Family harassed – Credibility – Inadequate understanding of Yi Guan Dao – Knowledge vague and limited – Delay in protection visa application

LEGISLATION

Migration Act 1958, ss 5(1), 36, 65, 91R, 91S, 499
Migration Regulations 1994, Schedule 2

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. The applicant, [name], is [age] and claims to be a citizen of the People’s Republic of China. He arrived on a [temporary] visa [in] June 2011. His [temporary] visa was cancelled [in] June 2013.

2. The applicant is seeking review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

3. The applicant applied for a protection visa [in] August 2014. He claims that he fears serious harm in China as a result of his belief in Yi Guan Dao (also known as I-Kuan Tao), a cult which has been banned in China since the 1950’s. He claims his family suffered mistreatment for their Yi Guan Do practice.

4. He provided a short typewritten statement with his application together with a copy of the bio data page of his Chinese passport.

5. The applicant was invited to an interview with the delegate [in] June 2015 but it appears that he changed address and did not receive the invitation.

6. [In] June 2015 the delegate refused to grant the visa as the delegate was not satisfied that the applicant met the criteria for a protection visa. There are no certificates restricting disclosure of any material on the Department’s file.

7. This is an application for review of the refusal decision and it was lodged [in] July 2015. The applicant provided a copy of the refusal decision but did not provide any other documents.

8. The applicant appeared before the Tribunal on 15 December 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

9. The applicant gave evidence about his background, his travel to Australia, his claims for protection and his current circumstances.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether the applicant meets the refugee criterion and, if not, whether he meets the complementary criteria.

11. Essentially the applicant claims that he is a Yi Guan Do follower and will face serious or significant harm if he returns to China now or in the foreseeable future. The applicant claims that his parents and [relatives] were Yi Guan Do followers and were mistreated for their association. He also claimed that he had been discovered sending Yi Guan Do materials back to China and that the authorities have accused him of evangelising and he fears he will be harmed him if he returns to China.

12. The relevant law is set out in Attachment A.

13. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    What is the country of reference?

14. The applicant claims he was born in Hebei Province, China and is a citizen of China. He has provided a copy of his Chinese passport which was issued in [2010]. He has consistently claimed he is of Chinese nationality and at the hearing he spoke Mandarin fluently and was familiar with the geography and culture of Hebei Province, China.

15. Taking into account the available evidence the Tribunal is satisfied that the applicant is a citizen of China and that China is the receiving country for the purposes of s.36(2)(aa).

    Assessment of Claims

16. The applicant’s claims are set out in the statement accompanying his protection visa and given in his oral evidence at the Tribunal hearing held on 15 December 2016.

17. The applicant stated he obtained the protection visa application form from a friend he met at his temple; he also shared the same address as his friend. He filled the form out himself with the assistance of a friend who knows a bit of English. The applicant stated that he prepared the statement attached to the application form and it was informally translated by a friend who was a university student as well as using the translation programmes on the internet.

    Background

18. The applicant is [age] and was born in a rural village in Qinghai County, Gusheng City District, Hebei Province.

19. The applicant’s parents live in his home village and when he first gave evidence about his parents’ occupation he stated they operated a small factory making [certain items]. He explained it was a small business operated from their home. Later in the hearing he changed his evidence and stated that they worked in factories. When questioned about the change in his evidence, he stated that in his earlier evidence he had meant that his parents’ earlier occupation was a [certain] business, but that they now worked in factories.

20. He has [a sibling] who is currently attending school. The applicant is not married and is not in a long term relationship.

21. The applicant attended primary and middle school in Hebei and finished middle school when he was less than [age]. He obtained a [temporary] visa and arrived in Australia [in] June 2011. He stated that his parents arranged for his application for a visa and that at the time the family had financial means for the applicant to study in Australia and he had no criminal record in China.

22. He arrived in Australia after purchasing his own ticket and was collected by a former classmate from [city] Airport. His friend helped him with accommodation in [city].

23. His intention was to enrol in a [certain] course in [city] but did not end up enrolling in that course or any course. He told the Tribunal that because his family had been persecuted in 2011, he was not in the mood to enrol and did not have enough money for the student fees.

24. After he arrived in Australia he did casual work in the [particular] industry and was able to support himself doing that work.

25. The applicant gave evidence that he initially held a [temporary] visa from [date] May 2011 until it was cancelled on [date] June 2013. He did not have a visa until he applied for a protection visa [in] August 2014.

26. He did not return to China because of an incident which affected his family in China during the time he was in Australia.

27. The applicant told the Tribunal that he wanted to stay in Australia to finish his studies. The Tribunal noted that he had not started any studies. He stated that he has some basic English and wants to work to support his studies. When asked why he had not already taken steps to commence studies he stated that he had not enough money and an incident had occurred which affected his family in China. He noted that he had been paying tax from his working income.

    Was the applicant or his family members Yi Guan Do practitioners in China and were they mistreated for this reason?

28. The Tribunal does not accept that the applicant was a Yi Guan Do follower in China. It also does not accept his parents and [relatives] were followers or adherents of Yi Guan Do and it does not accept that they were mistreated in China for this reason. The reasons for its findings are set out below.

29. In the statement accompanying the protection visa the applicant claimed that his family were Yi Guan Do followers, had organised a house temple and his [relatives] were Yi Guan Do advocates.

30. He claimed his family were prosecuted during the Cultural Revolution and their house temple closed. He claimed that when he was at high school his parents and [relatives] were punished and he was involved.

31. At the Tribunal hearing he claimed that his family had been involved in Yi Guan Do when he was very young. He stated his [relatives] were followers and they had influenced the family. 

32. With respect to their Yi Guan Do practice he stated that they had prayed at home. When asked to describe what happened at home and how his family practiced their beliefs he stated they knelt down and murmured in their hearts. They put a Buddha statue on the table and there was a special room for that. He could not remember much and believed that was all. When he was young he just kneeled down and when he grew older he was told he should have a sense of responsibility.

33. The Tribunal put it to him that many people in China had Buddhist temples at home. He claimed that his parents’ temple was not a Buddhist home temple; his parents worshipped different things and the arrangement was different. He named three different Buddhas.

34. Country information indicates that the Yi Guan Dao sect, also referred to as Tian Dao, was founded in Shandong province in the 1920s by Zhang Tianran (Zhang Guangbi, 1889–1947)[1]. The sect spread widely throughout Japanese‑occupied areas within China during World War II. The religion was outlawed in China in 1951 resulting in members being arrested or driven underground. With the death of Zhang in 1947, many of the remaining followers found their own way to Hong Kong and Taiwan, escaping communism in China. They established their own group, mainly following their ancestral temple’s name from China, spreading the teachings of Yi Guan Dao. Yi Guan Dao remains illegal in China today but since the 1980s it has gradually been re-establishing itself as an underground movement supported by missionaries particularly from Taiwan.

    [1] Clart, P. 2005, ‘Yiguan Dao’, in Encyclopaedia of Contemporary Chinese Culture ed E.L. Davis, Routledge, London, p.699 (\\NTSSYD\REFER\Research\INTERNET\EASTASIA\chn32439.web.pdf

35. The practice of Yi Guan Do is popular in Taiwan where it has been legal since 1987. Believers are generally organised into temple cells of 8-10 followers.

36. Joseph Bosco outlined the distinctive features of the beliefs, practices and organisation of Yiguan Dao (Tian Dao).[2] He noted that 

    Roughly translated, yiguan dao means "unity way" or "the way of pervading unity." As the name implies, Yiguan Dao claims it unites "the world's five great religions": Buddhism, Taoism, Confucianism, Islam, and Christianity. Scriptures from all these religions are believed to be sacred texts, but the current followers of the five religions are believed to be misguided. Initiates are told they are fortunate for they have just received the dao or "way," which supersedes all previous religions. Religions merely urge humans to be good; the dao, on the other hand, allows believers to escape from the cycle of death and rebirth (rein­carnation) and reach nirvana. (p.424)

    ….According to Yiguan Dao beliefs, those who have not been initiated have no way of delivering themselves from the cycle of death and rebirth; they are doomed to being reborn in this bitter world rather than attaining bodhisattva status and going to Western Heaven. Believers try to earn "merit" (gongde) to improve their karma so as to be worthy of bodhisattva status. Their karma, they believe, is primarily determined by what they did in past lives   (pp.433-4)

    [2] (Bosco, Joseph 1994, 'Yiguan Dao: "Heterodoxy" and Popular Religion in Taiwan' in Rubenstein, Murray R, 1994 The Other Taiwan: 1945 to the Present, East Gate, NY Ch.16 pp.423-444

37. Bosco (and Jordan[3]) also noted that whilst there were a diverse range of practices, some common elements could be identified including temples organised under the loose leadership of a master who presides over initiation ceremonies and guides other activities and ceremonies which are only open to initiated members. Initiation involves new members being taught the three treasures, the five rituals common to Yi Guan Do gatherings, spirit writing and prayer sessions involving rapid kowtowing in a highly prescribed manner.[4]

    [3] Jordan, D.K. & Overmayer, D.L. 1986 ‘The Flying Phoenix: Aspects of Chinese Sectarianism in Taiwan’ Princeton University Press

    [4] [4] Bosco, J. 1994, ‘Yiguan Dao: “Heterodoxy” and Popular Religion in Taiwan’ in Rubenstein, Murray R, 1994, The Other Taiwan: 1945 to the present, East Gate, NY,pp. 424,425,431,432 and 435;Jordan, D.K. & Overmayer, D.L. 1986 ‘The Flying Phoenix: Aspects of Chinese Sectarianism in Taiwan’ Princeton University Press pp.  227,236

38. Country information indicates that there are several rituals common to Yi Guan Do practice. The Tribunal found the applicant’s knowledge of common rituals to be deficient given his claim that he had been instructed in Yi Guan Do since he was a young child. The applicant was not able to give a plausible description of his experiences in China or give plausible and detailed observations of the family’s Yi Guan Do practice. His evidence was vague and he stated he could not remember much. He could not give direct first hand evidence of matters which he claimed he had experienced from a very young age.

39. The applicant was not able to describe rituals common to Yi Guan Do practice. At its highest, the most he could say was that people kneeled down to worship, read the word list (sutra), shared a meal and sang a hymn.

40. The applicant did not identify the importance of initiation for Yi Guan Do followers and did not give any direct or specific evidence that he had been initiated. When asked about whether a person had to do anything to become a member or adherent of Yi Guan Do he stated his greatest influence was his family. He talked about opening the heavenly eye, scripture and a hand seal but could not adequately explain these concepts or put them in any context. He also talked about the eight virtues. As put to the applicant at the hearing, the Tribunal considers that he had an inadequate understanding of the beliefs and practice of Yi Guan Do.

41. The Tribunal finds his knowledge was limited and not consistent with a person who had a long history of practice and observation. The Tribunal finds that he had no understanding of the meaning or significance of the words or concepts he mentioned at the hearing.

42. When it was put to the applicant that he appeared to have little knowledge or understanding of initiation into Yi Guan Do or its practices, he stated he was not interested in Yi Guan Do at primary school and when he started high school his [relatives] slowly explained it to him, however, the Tribunal does not accept this evidence. It considers his explanation has been given to overcome his demonstrated lack of knowledge of, or familiarity with, the practice. The Tribunal considers that the applicant’s level of knowledge is not consistent with his claimed history of involvement in China.

43. With respect to the applicant’s claims that his [relatives] and parents had been mistreated the Tribunal found the evidence he gave at hearing to be significantly inconsistent with his written statement. Further some of the claims made in his written statement were not put forward in his oral evidence until prompted by the Tribunal.

44. In the statement attached to his application he stated that his family was struck during the Cultural Revolution. He also stated that when he was in high school their house temple was closed, his parents and [relatives] were punished and he was involved.

45. He claimed that in 2014 his family were checked by authorities several times because of their house temple recovery. He [relative] was irritated [sic] and passed away. He claimed that before she died she asked him to provide her with some books about practising Yi Guan Do. However the books and CD he asked a friend to take back to China were confiscated by police who then accused the applicant of evangelising overseas.

46. Country information provided by the Department of Foreign Affairs (DFAT) notes:

    The Cultural Revolution was a phenomenon which affected the whole country, and millions of people were affected directly. Many people were unfairly and brutally victimised. This unhappy phase of Chinese history officially came to an end in the late 1970s. This “normalisation” of China occurred over a decade ago when many of the DORS applicants were only children.

47. The applicant was born in [year] and his parents were born in the late [years]. Whilst it is possible that the applicant’s [relatives] were caught up in the Cultural Revolution which affected many millions of people in China the Tribunal notes the normalisation of China took place in the 1970’s. Given their birthdates, the Tribunal does not accept that the applicant and his parents would have been directly affected by actions taken during the Cultural Revolution.

48. At the Tribunal hearing the applicant was asked about mistreatment he claimed his family had suffered for reasons of their Yi Guan Do practice. He stated they had experienced discrimination and as a result their business had suffered.

49. He also stated that he was afraid to return to China because he might be investigated due to an incident which took place after he left China and that he and his family were on a “list” held by the Public Security Bureau (PSB or police). When questioned about why his name would be on a list when he had left China by the time of the incident he stated that he was on his parents’ household registration (hukou) and thus would be on the PSB list.

50. In relation to the “incident” the applicant stated that his parents told him that the PSB came to the family home and searched the home for Yi Guan Do materials. He stated that the PSB had gone to the house because they had been informed by neighbours that Yi Guan Do had been practiced at the house. The Tribunal asked him when this incident took place and he stated it had taken place in 2011.

51. The Tribunal asked him whether, apart from the 2011 incident, anything else had happened to himself or his family in China related to their Yi Guan Do practices. He stated that the PSB came to his house in 2011 and the family suffered discrimination and their business experienced interference. Whilst he confirmed that the 2011 incident was the only incident in which the family had been mistreated by the PSB, he claimed that his [relative] had suffered psychological pressure and passed away because of this incident in 2014. The Tribunal noted that his [relative] had been [age] when she passed away and that it was not unusual for someone of that age to pass away. He stated she had been agitated because of the psychological pressure and this had affected her.

52. He also claimed continuing interference by authorities but did not give any detail regarding this interference.

53. The Tribunal asked the applicant whether anything had happened to the family in 2014 and he stated their [particular] business was forcibly closed by the PSB in 2014. He stated that in the beginning the business was good but after 2011 the PSB came to investigate them constantly and then in 2014 the business sales were not good because they were on the “black list”.

54. The Tribunal pointed out that he had earlier given evidence that his parents continued to operate a [particular] business from their home. He stated that the business was closed and they now worked in factories. When he gave his earlier evidence he thought the Tribunal was asking about his parents’ previous occupation.

1. The Tribunal asked the applicant whether anything else had happened to his parents in 2014. He stated that nothing else happened to them and they were just working.

2. The Tribunal questioned why he had not mentioned in his oral evidence his earlier written claims that before his [relative] died she had asked him to send books about Dao to his [relative] in the village, that those books and a CD had been confiscated from a travelling friend and the applicant had been accused of evangelising. In response, he stated he did not mention it because it was a small matter and sending a CD and books are normal things. The biggest incident for him was the death of his [relative] in 2014.

3. The Tribunal put it to him that it considered the claim that materials had been confiscated by police to be a very important and significant event. The applicant claimed that the book which had been confiscated was called Yi Guan Do and was issued by the temple in [suburb] which he attended. He claimed that he asked a friend (named) to take it back to China and deliver it to his [relative]. However, as put to him by the Tribunal, he was not able to describe the book or its contents in any plausible detail and it did not sound as if he had read it, seen it or looked in it.

4. The Tribunal discussed relevant country information regarding Yi Guan Do in China. It noted that the practice had been outlawed in China in 1951 and virtually unknown in mainland China whilst popular in Hong Kong and Taiwan. It seemed to have been suppressed in mainland China and in these circumstances it was difficult to accept that his family practised had practised Yi Guan Do in China.

5. In response he stated his [relatives] had been Yi Guan Do followers and because of Cultural Revolution no one could practise Yi Guan Do. He was instilled with this kind of concept from his parents. However, the Tribunal put it to him he did not seem to know much about Yi Guan Do.

6. The Tribunal finds that the claims made in the applicant’s statement; that his parents were punished when he was in high school, that they were checked several times in 2014, that he arranged for materials to be sent to his [relative] in 2014, that those materials were confiscated and he was accused of evangelising are not consistent with his claims at hearing that his parents were harassed by the PSB in 2011 for their Yi Guan Do practice, that the harassment continued and affected their business which was closed (or interfered with) by the PSB in 2014.

7. The applicant failed to mention at the Tribunal hearing his claim that he arranged for materials to be sent to his [relative] in 2014 and that they were confiscated by the PSB or Chinese authorities. The Tribunal does not accept the applicant’s explanation that this was only a small matter as the reason he failed to mention it in his oral evidence. The applicant was also unable to satisfactorily describe the materials he claimed that he sent to his [relative]. Accordingly, the Tribunal does not accept that the applicant sent materials to China which were confiscated by the PSB or other Chinese authorities.

8. The applicant’s evidence was also internally inconsistent. Initially when he was asked general questions about his family he stated his parents were currently running a [particular] business from their home in their village. Later in the hearing he stated that the business had been closed by the PSB in 2014 and then by way of explanation stated that since 2011 the business had been affected by PSB harassment which had caused loss of income and the business had to close in 2014. The Tribunal does not accept that the applicant’s parents’ business was forced to close by the PSB in 2014 and finds that this evidence is a later invention which seeks to address problems in his evidence about the harm allegedly suffered by his parents in 2014.

   Is the applicant a Yi Guan Do practitioner in Australia?

9. The Tribunal does not accept that the applicant has been a Yi Guan Do follower or adherent in Australia although it does accept he may have attended a temple in [suburb] from time to time.

10. In the written statement made by the applicant in August 2014 he stated that he attended a house temple organised by [an] association. He claimed he and [number] other persons had been pursuing Tao for over 2 years (2012).

11. At the Tribunal hearing the applicant gave evidence that he has been attending a Yi Guan Do temple at a [suburb] address run by [certain] people for over one year. He claimed he attended on Saturday nights and sometimes on Sundays. He did not repeat the written claims that he had been attending a house temple organised by [an] association from 2012 and unequivocally stated he commenced attending the [suburb] temple from 2014.

12. He did not know the name of the leader of the group but knew it was a woman. At first he claimed that the leader of the group would be able to recognise him but he later stated that there were too many people attending on Saturday nights and he did not know if she could recognise him.

13. The Tribunal asked him why he had only started attending a temple one year ago if he and his family had been Yi Guan Do followers since he was a child. He claimed they used to do these things at home and he started going to the [suburb] temple through the introduction of a friend.

14. The Tribunal put it to the applicant that if he only started to attend the temple in [suburb] in 2014 it might suggest that he has only attended a temple in [city] to strengthen his claims for protection which were made in 2014. He disagreed and stated that if he wanted to strengthen his application he would have invited the leader to give evidence. He does not want the people at the temple think that he only went to the temple because of his claims. The Tribunal does not accept this explanation.

15. Taking all of the above into account the Tribunal does not accept that the applicant has become a Yi Guan Do practitioner in Australia and does not accept that he has regularly attended a Yi Guan Do temple in [city] from 2014. Whilst it accepts that he has attended a temple in [suburb] on some occasions, the Tribunal is not satisfied that the temple in [suburb] is a Yi Guan Do temple or that he regularly attended. The applicant was not able to name the leader of the temple and did not provide any other independent evidence that the temple was a Yi Guan Do temple.

    The significance of delay

16. The Tribunal considers that the applicant’s delay in applying for a protection visa, in all the circumstances, is not consistent with the applicant having a genuine fear of persecution for reasons of Yi Guan Do practice.

17. The applicant claimed that he had been a Yi Guan Do practitioner from a young child and that his parents had been mistreated in 2011 and harassed on a regular basis from that time. Given these claims, the Tribunal considers his conduct in first attending a temple and applying for protection in 2014 indicates that he did not have a genuine fear of persecution.

18. The applicant applied for a protection visa in August 2014 about 15 months after his visa was cancelled. He stated the reason for the delay in applying for a protection visa was because he did not think about it at the time. When it was put to him that there was a significant amount of publicity in the media including the Chinese language media about protection visas and refugee claims he stated he did not read the newspapers.

19. The Tribunal put it to him that given his concerns about his family in China from 2011 it found it difficult to accept he did not take steps to find out about his visa options in Australia. He stated he was only a student and did not know the law and only slowly came to understand his options. The Tribunal put it to him that if he was truly concerned it would have expected him to seek advice at an earlier stage and did not understand why he left this issue for such a long period of time. He stated that in the beginning he thought he should try to survive and then later to find ways of dealing with the situation.

20. The Tribunal notes the applicant’s evidence that he had obtained work after he arrived in Australia and was able to support himself from that income and arrange accommodation. This indicates a degree of resourcefulness which is not consistent with his claim that he did not know how to seek advice on his visa options when he first arrived in Australia.

21. He claimed he decided to apply for protection because he had a feeling he would be persecuted if he went to China. He made that decision in August 2014 because when he went to the temple in [suburb] someone mentioned the existence of protection visas. He confirmed he first went to the [suburb] temple in 2014. The Tribunal considers that the circumstances indicate that the applicant did not have a genuine fear of persecution and applied for protection as a means of seeking a permanent migration outcome.

    Does the applicant meet the refugee criterion?

22. Taking into account the findings set out above, the Tribunal does not accept there is a real chance the applicant will face harm for reasons of religion or imputed political opinion if he returns to China now or in the foreseeable future.

23. For reasons set out above, the Tribunal does not accept that the applicant is an adherent of Yi Guan Do in Australia or that he and his family members were adherents of Yi Guan Do in China. It does not accept that the applicant’s [relatives], his parents or the applicant have been harassed, punished, threatened or mistreated in China for reasons of Yi Guan Do practice. It does not accept that the applicant’s parents’ business was forcibly closed by the PSB in 2014.

24. The Tribunal does not accept that the applicant has been accused of proselytising in Australia and that he will face harm for this reason if he returns to China. It does not accept his claim that he will be arrested at the airport because of his family’s record and because he sent some books to China.

25. The Tribunal accepts that the applicant has attended a temple in [suburb] from time to time from 2014. Other than for the applicant’s evidence, there is no other evidence that the temple in [suburb] is a Yi Guan Do temple and the Tribunal is not satisfied on the evidence before it that the temple in [suburb] is a Yi Guan Do temple.

26. There is country information as set out earlier in this decision that indicates that the practice of Yi Guan Do is banned in China and that genuine Yi Guan Do adherents might faces some risks of harm. However, as the Tribunal does not accept the applicant is a Yi Guan Do adherent or has any genuine interest in the practice it does not accept he faces harm for such a reason.

27. Taking into account the findings set out above, the Tribunal does not consider that the applicant has a genuine subjective fear of persecution if he returns to China.

28. In view of these findings of fact, the Tribunal is not satisfied that the applicant has a well-founded fear of Convention related persecution for any of the reasons set out in the Convention.

    Does the applicant meet the complementary protection criterion?

29. The Tribunal has considered whether, on the evidence before it, that there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to China.

30. The Tribunal has found that neither the applicant nor other family members are Yi Guan Do practitioners or adherents for reasons set out above.

31. The evidence indicates that the applicant left China legally on a [temporary] visa in 2011 and travelled on his own Chinese passport.

32. Having considered the applicant's claims, the Tribunal finds that the applicant does not meet the criteria for complementary protection criteria. Taking into account the Tribunal’s findings of fact and the available country information, it is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to China now or in the reasonably foreseeable future.

33. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to China now or in the reasonably foreseeable future.

34. Accordingly, the Tribunal is not satisfied that 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 as defined in s.36(2A) and s.5(1) of the Act. The applicant does not satisfy the criterion in s.36(2)(aa).

    Conclusions

35. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

36. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

37. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

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

    Louise Nicholls
    Senior Member

    
    

    RELEVANT LAW

39. 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.

    Refugee criterion

40. 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).

41. 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.

42. 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.

43. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

44. 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.

45. 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.

100.   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.

101.   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.

102.   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.

103.   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

104. 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’).

105. ‘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.

106. 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

107. 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.