1509885 (Refugee) - [2015] AATA 3924

1509885 (Refugee) [2015] AATA 3924 (24 December 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1509885
COUNTRY OF REFERENCE:                  China
MEMBER:Sophia Panagiotidis
DATE:24 December 2015
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 24 December 2015 at 2:06pm
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

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] July 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of China, applied for the visa [in] March 2015. The delegate refused to grant the visa on the basis that although he accepts that the applicant is homosexual, did not accept that the applicant faces persecution involving serious harm or that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to China, there is a real risk he will suffer significant harm.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has well-founded fear of persecution and is unable or unwilling to avail himself of the protection of his country or whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The following is the applicant's visa history as contained in the delegate’s decision which was provided to the Tribunal.
The applicant first arrived in Australia [in] July 2007 as the holder of a student subclass 571 visa. He was granted a further subclass 571 student visa [in] November 2007. The applicant made a further application for a student visa [in] March 2010 which was refused. The decision to refuse the application was reviewed by the Migration Review Tribunal and set aside on 14 February 2012. He was granted a further subclass 571 visa [in] January 2012 which was due to cease [in] March 2015. [In] November 2011 the applicant was arrested and charged with [charge] and was sentenced to [sentence] after his release from custody [in] November 2011. The applicant's student visa was cancelled [in] October 2013 due to failure to enrol in a course of study. The applicant remained unlawfully in Australia until he was granted a Criminal Justice Stay Certificate which was issued [in] December 20014. An application for a Criminal Justice visa was refused [in] January 2015. [In] February 2015, the applicant was located by Departmental compliance officers and detained and transferred to [an] Immigration Detention Facility.
[In] March 2015, the applicant was convicted of [conviction] and sentenced to [sentence] with a suspended sentence upon the condition of entering a good behaviour bond for the same period. The applicant's Criminal Justice Stay Certificate was cancelled.
The applicant lodged an application for a protection visa [in] March 2015 and [in] March 2015 he also applied for a bridging visa was refused. The Migration Review Tribunal affirmed the decision to refuse the application for a bridging visa on 8 April 2015.
The applicant was then transferred to [a] Immigration Detention Facility [in] May 2015.
The applicant's claims
The applicant’s claims are essentially that he is a homosexual and he will face harassment and social rejection in China. He had not had a homosexual relationship in China and while in Australia has not had any permanent partners. He claims he will have difficulty having male partners openly if he returns to China. His family do not know about his sexual orientation but his father may know as he has warned him once that people like him face a difficult life in China.
The applicant also claims he will be persecuted by his father’s creditors. His father has left China and his creditors, being unable to find him will attempt to force the applicant to pay his father’s debts. He has experienced conflict between his father and the creditors when he was a teenager in China as they smeared red paint on the applicant's house and ransacked it taking all the valuables they could find. His father has reported this harassment to the police but they have been unable to resolve the matter. The applicant's father fled China and travelled [overseas] to escape the creditors, before the applicant came to Australia. His father returned to China in 2013, and later during an interview with the delegate said he returned to China in 2011 or 2012 after his wife passed away in 2010. His father has been in hiding from the creditors ever since living at different addresses. At the moment he resides with his [sibling] and has no home. The family home belonged to the applicant's grandmother who sold it in 2012 or 2013. The applicant was unable to state how much his father had borrowed or what is still owed. He does not know his father’s creditors but assumes they may belong to a criminal group judging by past actions. The applicant fears that being unable to locate his father; they will persecute him until he pays his father’s debts.
The applicant also claims that as he has been in Australia for over seven years, he has lost the necessary social skills and connections required for survival in China. He will have no place to live as his father owns no property and is in hiding from his creditors.
During the hearing the applicant confirmed he arrived in Australia [in] July 2007 as a student when he was [age]. He studied English and finished high school. After that he was enrolled in a [course] and then changed to [another course]. This was in about 2012 or 2013. He did not complete either course as he was involved in a criminal case and was unable to focus. In 2011 or 2012 he was charged with [charge] and convicted. After that he returned to study but he lacked enthusiasm after his experience and did not do well in the course. Then a series of things happened, his family could not continue to financially support him, he started work and in 2013 his student visa was cancelled. He did not find out about this until February 2015. He was not enrolled in a course as his family could not pay the student fees and he was working to support himself. He worked in a [shop] until he was detained.
In relation to the criminal proceedings, he had been sentenced to community service but because of a breach because he was in detention, he was convicted and received a suspended sentence.
The applicant said he has not been to China since 2010 when he returned for his mother’s funeral. She had been suffering from [illness] and had a [medical event] and died. His father is in China and he has uncle and cousins in China. His paternal grandmother lives in [city] with her daughter. She has permanent residency and is [age]. His mother’s parents have passed away and he does not have siblings. His family is from Guangzhou which is where he grew up.
The applicant said his father moved [overseas] where he worked as a [occupation], when the applicant was [age]. This was to get away from creditors. His father returned to China about two or three years ago. He was absent from China for about 12 years. His father did not return to live with his mother as the relationship did not work. Prior to leaving for [overseas], the applicant thinks his father may have had his own small business but is not sure as he cannot remember. He thinks it may have been something to do with exporting [goods] to another country and on one occasion the [goods were] stored for too long and spoiled and money was lost. He knows that his father owes money to his business partner and it must have been a substantial sum because he ran away. This was around 1999 or 2000. He does not know if his father has repaid any of the money, all he knows is that after his father left the country people came to his home and searched for him and took about 30,000 RMB. They told his mother that the money has to be repaid and his mother was scared because they told them that the son must repay the father’s debt.
The applicant said his father is staying with his [sibling]. He speaks to his father every week and his father has told him that people are still after him. His father is not working except on occasions when his [sibling] in Australia needs him to do some packaging. She has a [business] in [city]. His father’s source of income is his mother’s pension. The applicant said that when his father returned to China he did not tell him. If he returns to China as well, the creditors may come after both of them. This is still likely after all this time. He is not certain if he can be helped by the authorities as he has been away from China for too long.
When his father first left China in about 2000, his parents told him they needed to move very quickly and they moved twice before his father left the country. He and his mother moved back into the family home eventually. In about 2001 people came around and too the money. They returned many times after 2002 and have used red paint on the outside of the house when they came to search. The applicant said that when he was about [age] these people came to his school to find him on two occasions. He ran away the first time and the second time, his teacher and his mother spoke to the man and refused him entry and warned him to stay away.
His father returned to China after his protection application was refused. His father is unable to move from his [sibling]’s house as he relies on his mother’s pension and he cannot afford to move.
The applicant said that homosexuality in China is not acceptable. Even his father has had trouble finding information about homosexuality in China. He was told the topic is prohibited. People in China would discriminate against anyone who is gay. It will not be possible for him to find a partner and he will be rejected by his friends. He said that in Guangzhou none of his friends would approve of gay relationships. In Australia there is some disapproval but in places such as [city] a person can be openly gay and people in Australia are more open to gay people.
The applicant said he does not have much communication with friends, especially after his detention. He was in touch mainly with one friend. He has not lived in China since 2007 and only returned for a short time in 2010. Before his detention he was living in [city] with a cousin and before that he was living with his grandmother and his aunt.
The applicant’s representative told the Tribunal that if the applicant was to be returned to China he will face discrimination and harassment. When he returned to China in 2010 he saw a friend and confessed he was gay. The friend told him this was his choice to be like this but if he is then they can no longer be friends. He was afraid his friend would tell others about this confession.
The Tribunal has considered the written submission made by the applicant's representative:
·Before the applicant came to Australia he had a hard life in China and was sad as a result. When he was [age], he had many questions about “sex” a, he has been feeling like a female in a male body and was attracted to males but was afraid to ask his parents for answers.
·Eventually he resorted to one night stands meeting partners in a gay sauna in [city] and engaged in his first ever sexual activity. He began to realise he is a homosexual. His relationship with partners in the gay sauna was the best relationship he has ever had because he can conduct these relationships without fear in a country that does not treat homosexuals as having a mental disorder.
·He was always sacred and worried about people discovering his relationships and the consequences if his parents or friends were to find out.
·In late 2010 when the applicant returned to China, he told his best friends that he is a homosexual. Unfortunately, his friends could not accept him being a homosexual and told him that their friendship with him had ceased. He was specifically targeted for oppression due to his sexual identity. He realised that his life in China meant being afraid all his life and decided to migrate to Australia to escape this predicament. He started feeling mistrustful of everyone around him including members of his own family, thinking they either know or may come to know about his sexual orientation.
·It is submitted that the applicant has a well-founded fear of being persecuted because of being a homosexual in China. Reference is made to an RRT decision MIMA v Guan [2000] FCA, at paragraph 7:
“If a same sex couple in China attempt to live a normal life, that is, go to restaurants, clubs, bars, theatre and make it obvious that they are a unit, they will sooner or later attract the adverse attention of the authorities… Their lives are at the level of furtiveness and fear brought about by the intolerance of the state.”
·Before the applicant came to Australia he experienced a variety of violent and harassing incidents. It is clear that homosexuality is not accepted or condoned by society in China and it is not possible to live openly as a homosexual in China. To attempt to do so would mean facing problems ranging from being disowned by his family and shunned by friends and neighbours to more serious forms of harm, for example the possibility of being bashed by police. Because China’s attitudes towards homosexuality is that it is socially unacceptable, the applicant may be pushed towards a traditional marital relationship and forced to marry a member of the opposite sex by his family. He would marry against his will because of pressure by relatives.
·The applicant has faced crushing social and family pressure. In 2010 dozens of gay men who gathered at an outdoor pick up spot in Beijing were rounded up and detained in a huge police swoop ahead of China’s National Day holiday. According to those who were there, riot and normal police detained more than 80 people.
·Since 1994, Australia has accepted that sexual orientation can form the basis of a particular social group under the Refugees Convention. Therefore it is submitted that the applicant who is a homosexual is a member of a particular social group for the purposes of the Convention.
·The applicant has been in Australia for over seven years and has lost the necessary social skills and connections required for survival in China. He will have no place to live as his father does not have his own home and is hiding from creditors. After his father left China, many of his creditors attempted to force the applicant to pay his father’s debts. The applicant has experienced conflict between his father and his creditors when he was a teenager in China. His father’s creditors smeared red pain on the applicant's house and ransacked it taking all valuables they could find. His father was not home and the creditors were unable to find him.
·Before the applicant came to Australia in 2007, his father had to flee China to escape creditors and went overseas. The creditors have threatened the applicant that they will persecute him until he pays his father’s debts.
·It is submitted that the applicant is unable or unwilling to avail himself of protection in China. If he were to return to China, the risk of being persecuted is not insubstantial or remote. This includes being tortured by authorities for being a homosexual and he therefore would not have adequate and effective state protection. Since 1949, homosexuality was considered a disease from the decadent West and feudal societies and homosexuals were persecuted. It is likely that the applicant will face serious human rights violations in China.
·The applicant has faced systematic discrimination and harassment from the Chinese government because of his sexual orientation as well as similar mistreatment from family members.
·This case is special because of the applicant's particular circumstances.
Country information
The Tribunal has also considered country information in relation to the claims made by the applicant.
Sexual orientation
According the Department of Foreign Affairs and Trade’s (DFAT) Country Report on the People’s Republic of China (3 March 2015):
3.39 China’s laws do not explicitly criminalise private consensual same-sex activities between adults. However, the Chinese government does not recognise de facto/same-sex partnerships and China’s Marriage Law only recognises marriage between a man and a woman. Homosexuality and bisexuality were removed from the Ministry of Health’s list of mental illnesses in 2001. Sexual orientation and gender identity that include lesbian, bisexual or transgender people are not explicitly dealt with in China’s existing anti-discrimination regulations. National laws allow transgender people to change their gender on ID cards and household registration if they have undergone full sex-reassignment surgery. Gender changes on other official documents, such as educational certificates, is not permitted. Censorship laws explicitly ban same-sex content in any form in movies and television. Workplace discrimination based on sexual orientation and gender identity is common and is not prohibited by any law or national regulation.
3.40 As with other civil society organisations that work on issues perceived by the government to be sensitive, LGBTI civil society organisations can experience difficulties registering legally, receiving funding and arranging public advocacy activities. Public opinion regarding homosexuality is gradually becoming more tolerant (particularly in China’s larger cities and regional urban hubs), but still remains predominantly negative. DFAT assesses that societal discrimination against LGBTI people exists but varies in frequency and severity depending on the location. Generally speaking, people in larger, wealthier cities in China - such as Beijing, Shanghai and Guangzhou - tolerate LGBTI people, and larger cities are starting to have LGBTI-friendly media and clubs. Public displays of affection between couples are generally discouraged, as they generally are for heterosexual couples. Smaller, more rural communities can be less accepting of LGBTI people owing to traditionally conservative views and a lack of education, although DFAT notes that data regarding the attitudes of people in China’s rural and western regions towards LGBTI issues is lacking. Some members of the LGBTI community have expressed concern that a rise in Christianity in China is leading to a rise in negative perceptions of homosexuality.
3.41 DFAT assesses that societal violence against LGBTI people is generally low, although lesbian and bisexual women are at particular risk of violence by family members and spouses. According to a 2009 survey of 900 lesbian and bisexual women about family violence, 48.2 per cent reported violence and abuse from parents and relatives, including involuntary committal to psychiatric wards. There have been reports of family members forcing minors to undertake intense conversion therapy (although advertising and/or providing conversion therapy services is now illegal). LGBTI individuals can be at risk of domestic violence by family members who do not accept their gender identity or sexuality.

The UK Border Agency country report on China provides a useful summary of information from a range of independent international sources in relation to homosexuality[1]:
[1] UK Border Agency China – country of Origin Information (COI) Report 12 October 2012
LEGAL RIGHTS
22.01 The International Gay & Lesbian Human Rights Commission (IGLHRC) Research Paper, China: The Legal Position and Status of Lesbian, Gay, Bisexual and Transgender People in the People’s Republic of China, by Tom Mountford, published 24 March 2010, stated:
“Homosexuality was decriminalized in China in 1997 and removed from the official list of mental disorders in 2001. However, since these two changes to Chinese law and clinical practice the Chinese government has remained largely silent on the issue of homosexuality. That silence has had two main effects. First, it has stalled any further developments in removing legal discrimination against LGBT people in China. Secondly, it means that the legal status and position of LGBT people is unclear, with varying official treatment across different parts of China. Discrimination against LGBT people continues to be written into many different areas of law in China. Furthermore, as LGBT people in China largely lack legal recognition and legal protections there is no legal certainty as to their position. This results in a situation where the population is unable to clearly determine whether they will face official opposition in meeting together, organizing and providing services within the community.‟
22.02 The Human Rights Watch (HRW) World Report 2012: China, covering events of 2011, published 22 January 2012, stated: „In 1997 the government decriminalized homosexual conduct and in 2001 ceased to classify homosexuality as a mental illness... Same-sex relationships are not legally recognized, adoption rights are denied to people in same-sex relationships, and there are no anti-discrimination laws based on sexual orientation.
22.03 The US State Department’s 2011 Country Report on Human Rights Practices (USSD Report 2011), China, published on 24 May 2012, noted that: “No laws criminalize private consensual same sex activities between adults.‟
22.04 The findings from the IGLHRC paper also stated:
“The legal status and position of homosexuality in China bears the hallmarks of a subject which has been little considered within official Chinese governmental circles. The government seems to have maintained an official silence and general restrictions on the LGBT community based on a cautious, conservative policy. This is often expressed in the Chinese idiom as 不支持, 不反对, 不提倡 (not encouraging, not discouraging and not promoting). However even if the intention of the Chinese authorities is to adopt a cautious policy this is not a neutral policy, and the combination of official policy and official silence entails serious consequences for the LGBT population.‟
22.05 The IGLHRC paper also stated:
“LGBT couples are not recognized as constituting families. There is no applicable gay marriage, civil or domestic partnership regime in China. LGBT people face a variety of disadvantages in the context of family law from uncertainty in divorce and child custody proceedings to strong restrictions on fertility services and gay parenting. Adoption of Chinese children by foreign LGBT couples and individuals has already been prohibited by the Chinese authorities. The spirit of this regulation raises concerns that this explicit prohibition may be applicable or extendable to single Chinese LGBT people who seek to adopt a child.‟
TREATMENT BY, AND ATTITUDES OF, STATE AUTHORITIES
22.06 The HRW World Report 2012 observed that: “... police continue to occasionally raid popular gay venues in what activists describe as deliberate harassment.‟ Recording one incident where „On April 4, 2011, Shanghai police raided Q Bar, a popular gay venue, alleging it was staging “pornographic shows.” Police detained more than 60 people, including customers and bar staff, and released them later that day.‟
22.07 A new edition of an authoritative Chinese dictionary published on 15 July 2012 came under fire for leaving out the homosexual definition of the word “tongzhi‟, meaning „comrade‟, commonly used to refer to gay men and lesbians. The committee charged with revising and updating the dictionary said they chose to leave out the definition because they didn't want to encourage its use. (CNN, 25 July 2012)
22.08 The findings from the IGLHRC paper reported:
“LGBT people continue to suffer from police harassment and arbitrary detention. The police and public security services often use the sexual element of LGBT people's sexuality against them, for example arresting LGBT people for suspected prostitution and using circumstantial items such as possession of condoms as prima facie evidence of the alleged involvement in prostitution. There are continuing problems of LGBT people facing extortion and blackmail from the police and security services, as well as from broader society, at threat of revealing their sexuality.‟
22.09 On 24 October 2010 the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) reported:
“Internet censorship and surveillance [sic] are common complaints in China and the gay community are no strangers to it. As Shanghai’s week-long pride festival kicked off over the weekend, the festival website with details of the events – shanghaipride.com – has been effectively blocked by a firewall.
“Shanghai’s City Weekend magazine had only said last week to look out for venue details, exact times and location to be released a day or two before each event. The strategy of the organisers was targeted to avoid complications. The government forced some events to be dropped at short notice during the first pride festival launched in the city in 2009.
“Thus the opening party which flagged off the festival, the only one of its kind for LGBT in China, took place without much razzle dazzle on Saturday night [22 October]. A small crowd mingled outside the Mexican restaurant in Yongjia Road in Shanghai’s former French Concession. Inside the entrance was a small poster with the word “Pride”, if one looked for it hard enough. The reception counter had a few flyers indicating there was a party going on but there were no rainbow colours or flags of any sort to mark the event. The only clue was perhaps the level of chic at the party. Men were dressed in signature tight shirts and pants and some women were androgynous, clad in jackets and hats. Except for a short drag performance, the low-key event could have been mistaken for a regular private party anywhere in the city.‟
22.10 A pub owner in China who organised gay performances was sentenced to five months in prison and fined 5,000 yuan ($783), which was reported in an article by the ILGA on 3 September 2011:
“The Huangpu district people’s court jailed Wang Bing for pornography, the Shanghai Daily reported. The 47-year-old owns a pub in the downtown area and is also a marketing director of a local arts venue. When he opened his pub, it failed to do good business, and he tried to organise gay performances to woo customers. Wang invited Xiao Hui, a bar dancer, to perform at his pub. But police raided the pub on neighbours‟ complaints. Wang pleaded guilty and was later jailed. The gay performer’s fate couldn’t be known.‟
22.11 The USSD Report 2011 cited the following recorded incidents involving the authorities:
“… in February [2011] a Valentine’s Day kissing contest that gay couples planned to attend was cancelled abruptly by organizers. The Beijing LGBT Center planned to use the event to raise awareness about gay rights.
“In June [2011] the Fifth Beijing Queer Film Festival was forced underground due to harassment from local police, officers from the Bureau of Industry and Trade, and the Culture Bureau. The police deemed the event “illegal.” Organizers were forced to close the event to the general public and show the films to invited guests only. The venue of the festival was also changed every night to avoid detection.‟
22.12 The ILGA also on the 5 April 2011 about a raid on a new gay bar in Shanghai, detaining the manager and customers, including some foreigners. The article noted:
At 1 AM, police swooped on the Q Bar and detained about 50 people who were reported to have been held at a local police station. One of the detainees is the bar’s DJ Steven Bao who complained via tweets that they were “locked up like dogs” in the cold, without their clothes, and without water. Bao also appears to have been roughed up after asking for his clothes before his mobile phone ran out of power. Tweets from Steven Bao and other friends of the detainees have spread like wildfire on Sina Weibo, eliciting angry responses from members of the LGBT community across China. A raid of this size on a gay bar has not been seen in Shanghai since 2007, when the former Club Deep, located in Jingan Park, had its Halloween party raided, shut down, and several customers detained for alleged drug abuse. Chinese police can detain people for a maximum of 24 hours.‟
SOCIETAL TREATMENT AND ATTITUDES
22.13 The HRW World Report 2012 noted: "High-profile public support for overcoming social and official prejudice against lesbian, gay, bisexual, and transgender (LGBT) people is increasingly common. On July 5 [2011] a China Central Television talk show host criticized homophobic online comments posted by a famous Chinese actress and urged respect for the LGBT community.‟
22.14 The USSD Report 2011 noted: “Due to societal discrimination and pressure to conform to family expectations, most gay men and lesbians refrained from publicly discussing their sexual orientation. Individual activists and organizations working on lesbian, gay, bisexual, and transgender (LGBT) issues continued to report discrimination and harassment from the authorities.‟
22.15 GayStarNews, a gay news site, reported on 1 February 2012 about assistance available to gays or lesbians who have questions about how to come out to their parents as well as for the parents whose children have already come out, and noted:
“A lifeline for Chinese parents, who are often isolated and confused when their children come out, was launched this week by PFLAG China (Parents, Friends and Families of Lesbians and Gays). Calls will be answered by mothers who understand what parents go through when their child first tells them that they are gay…
“As well as listening to the concerns of parents who call the line, the helpline will also be there for gay people who are having problems coming out to their parents. “So many gays or lesbians have questions about how to come out to their parents,” executive director of the helpline, Ah Qiang told Gay Star News. “And parents want to speak to other parents of gay children to know how to receive their children and to ask about the lives of LGBT people. Most parents, when they hear their child is gay or lesbian, think they are the only ones.”
“Coming out to their parents is usually the biggest obstacle to living open lives for Chinese gay men and women, because of the emphasis on filial piety. It is hoped that the helpline, that is free and anonymous, will ease the pressure on parents and their children.‟
The Tribunal also considered a report by Human Rights Watch World Report 2015 – China (29 January 2015) in relation to sexual orientation and gender identity:
Homosexuality was decriminalized in 1997, but was remained classified as a mental illness until 2001. To date there is no law protecting people from discrimination on the basis of sexual orientation or gender identity. There is no legal recognition of same-sex partnership.
Despite this lack of legal protection, individuals and organizations brought cases to court to try to better protect their rights. In February, an activist sued the government after the Hunan Province Civil Affairs Department refused to register his organization focused on lesbian, gay, bisexual, and transgender (LGBT) issues, stating that homosexuality had no place in Chinese traditional culture and “the building of spiritual civilization.” The court dismissed the case in March on the ground that the government had not defamed homosexuals.
LGBT groups continue to document the phenomenon of “conversion therapy,” in which clinics offer to “cure” homosexuality. In March 2014, a man who calls himself Xiao Zhen filed a lawsuit against a clinic in Chongqing, which he said had administered electroshock therapy to him. It was the first time a court in China heard a case involving “conversion therapy.”
In November, a man filed a lawsuit in Shenzhen alleging discrimination on the grounds of sexual orientation; if the court accepts the case it will be the first such case heard in China.
During China’s October CEDAW review, a state representative noted that: “the rights of all Chinese citizens [are] protected by Chinese law, regardless of their sexual orientation.”[2]
[2]
On 11 September 2015, Radio Free Asia reported:
Dozens of grassroots Chinese rights activists have written to the country's major educational institutions calling for equal treatment of lesbian, gay, bisexual, and transgender (LGBT) students.
The activists, drawn from three major LGBT rights groups, called in an open letter for "corrections" to be made to teaching materials that might prompt discrimination, as well as for classes in gender diversity.
"We appeal to and encourage principals at all these universities to play a positive role in gender equality education, as well as to recognize these basic demands of [LGBT] students," the letter said.
The letter, signed by the Changsha-based China Same Sex Love (CSSL) group, the Beijing-based LGBT Rights Advocacy China, and Nanjing-based anti-discrimination group Justice for All, also called on staff and management teams at 112 Chinese universities to allow LGBT students to set up student societies and activity groups, something which isn't currently permitted.
The groups are also calling for better awareness and protection against the bullying of LGBT students in China's higher education system.
"When LGBT students are facing bullies, please guarantee their rights and offer them psychological support," the letter said.
It also called on universities and colleges to be "brave" and to make changes to regulations if they violate the rights of LGBT students.
Stigma persists
The move comes after a report from the Guangzhou-based Gay and Lesbian Campus Association revealed that, when homosexuality is mentioned in Chinese textbooks, 40 percent of the references define it as a mental illness.
"A university, as a place where culture and thought are fairly open, should cultivate hope and the future of the nation," the letter said.
"It should accept different voices and groups."
Bullying of LGBT students is rife from middle-school through to vocational colleges and universities across China, according to a May 2012 survey from the Aibai Culture and Education Center.
Three quarters of students surveyed said they faced verbal and physical abuse linked to their sexual orientation.
"We want the staff and principals of schools and colleges to protect the rights and interests of LGBT students," CSSL founder Xiang Xiaohan told RFA on Thursday.
"We want them to offer open access classes for students, in particular for heterosexual students ... so that they have a more correct understanding of these minority groups," Xiang said.
"In many colleges, LGBT clubs and societies aren't accepted, although they are usually not explicitly banned in official documentation," he said.
"Instead, the staff will usually interfere [with their plans] ahead of time, with some unprecedented and lame excuse for refusing them."
More are coming out
More and more well-heeled urban Chinese have begun coming out in recent years, and while some find acceptance among their peers, social attitudes still strongly favor marriage and children.
Exactly how many Chinese would identify themselves as gay is still unknown, as social stigma associated with homosexuality remains widespread. Many choose to marry despite their orientation.
The ruling Chinese Communist Party treated homosexuality as a psychological problem for decades, removing it from an official list of mental disorders only in 2001.
Official statistics released in 2004 suggest that China is home to some 10 million people who identify as one of the LGBT minorities.
"We reckon that three in every hundred university students is probably LGBT," Xiang said.
A Beijing-based LGBT rights activist who gave only a nickname, Yanzi, said that coming out can be particularly tough for young people in Chinese universities.
"Some students will snigger at students who come out as gay or transgender behind their backs, and there have been cases of physical violence against them," Yanzi said.
"The situation is pretty serious, in particular because it's not recognized as such."
Diplomat, partner marry
The letter to the universities comes just days after a British diplomat caused an online stir by marrying his gay partner under British law in the Shanghai consulate.
Shanghai consul-general Brian Davidson wed his American partner, Scott Chang, on Saturday, creating a flurry of comment on China's hugely popular social media sites.
Photos of the newly wed couple, who were dressed in suits and bow ties, quickly went viral on the Twitter-like service Sina Weibo, where comments were mostly positive from the service's generally younger, tech-savvy users.
Chen Yuan, founder of the Guangzhou Equal Opportunities Center, said one of the eventual aims of the LGBT rights movement is gay marriage and anti-discrimination legislation.
"Gay marriage is a pretty major goal," Chen said. "Not a single Asian country allows it yet, but in China there are no religious barriers."
"But there is still discrimination against sexual minorities, and it's very widespread."[3]
[3] Radio Free Asia, LGBT groups call for change in China's schools, colleges, 11 September 2014, available at: Accessed 23 December 2015 Reported by Xin Lin for RFA's Mandarin Service. Translated and written in English by Luisetta Mudie
Findings and reasons
The applicant's main claims relate to his fear of persecution relating to his homosexuality and being persecuted by his father’s creditors.
The Tribunal’s first task in determining whether the applicant is owed protection is to make findings of facts on relevant matters. The task of fact-finding often involves an assessment of the applicant's credibility. In this context the courts have made it clear that the Tribunal must be sensitive to the potential difficulties faced by asylum seekers in putting forward their claims and that the Tribunal should adopt a reasonable approach to making its findings with regard to credibility and afford the benefit of the doubt to asylum seekers who are generally credible but unable to substantiate all their claims. However, the Tribunal is not required to accept uncritically any and all claims made by an applicant.[4]
[4] See MinisterImmigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997), Sundararaj v Minister for Immigration and Multicultural Affairs (1999) FCA 76, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547, Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
The Tribunal accepts that ‘applicants for refugee status face particular problems of proof as an applicant may not be able to support his statements by documentary or other proof, and cased in which an applicant can provide evidence of all his statements will be the exception rather than the rule.’ The Tribunal also accepts that ‘if the applicant's account appears to be credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. (the United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196), However the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220). However, the Tribunal is not required to accept uncritically any or all of the claims made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
In assessing the applicant's claims, the Tribunal has taken into account the information contained on the Department’s file, including his application for a protection visa and numerous documents he has provided. The Tribunal has also taken into account a range of information from independent sources concerning relevant matters in China.
Sexual orientation
The Tribunal accepts that the applicant is homosexual. The Tribunal has also had regard to independent country information in relation to the treatment of homosexuality in China as well as the submissions made by the applicant's representative. The Tribunal accepts there continues to be discrimination in many areas of China and there is generally a negative attitude towards homosexuals, however the information also indicates a changing attitude generally.
The Tribunal has also considered the submission made by the applicant's representative that the applicant had experienced “a variety of violent and harassing incidents prior to coming to Australia.” It was submitted that the applicant will be shunned by his family friends and neighbours and he faces more serious harm by the police in China” and further he “has faced crushing social and family pressure.”
The Tribunal notes the applicant's evidence that he has not had any sexual relationships in China. He came to Australia in 2007 when he was [age] as a student and first sexual experiences occurred in Australia. His evidence was that on his return to China briefly in 2010 he told a friend about his sexual orientation and this news was not received well with his friend declining to continue the friendship. In addition the applicant referred to his father as knowing about his sexual inclinations, not in any detail, but the applicant said his father has had trouble finding out information about homosexuality and how it is perceived in China. The applicant did not refer to any incidents of violence or harassment in China due to his sexual orientation.
The Tribunal does not accept that the applicant has in the past, been discriminated or in any way harmed in China for reasons of his sexual orientation. The Tribunal also considers, on the applicant's own evidence that his father knows about his sexual orientation and does not appear to be overly concerned with it. The Tribunal accepts that the friend, in whom the applicant confided in when he returned to China in 2010, rejected him because he is a homosexual, but there is no evidence that the applicant has confided this to anyone else, or even that anyone else is aware of his sexual orientation.
In any event, the Tribunal is satisfied that having a same-sex relationship in China is not a criminal offence and that public opinion regarding homosexuality has become more tolerant, particularly in larger cities. This is confirmed by credible independent sources outlined above. Although the applicant may face some discrimination the Tribunal is not satisfied that this would amount to serious harm to the applicant and therefore finds the applicant does not face a real chance of being seriously harmed as a consequence of his actual or imputed sexual orientation. It follows that his fear of harm in this regard are not well-founded.
Father’s creditors
The Tribunal had concerns about evidence provided by the applicant in relation to the claim that he feared harm from his father’s creditors. He described a long history of avoidance by his father of creditors and in particular of his having left China for some years to avoid them. The applicant also provided evidence that before he came to Australia of creditors coming to his home, looking for his father and taking valuables in lieu of debts as well as some property damage by way of smearing paint on his home. The applicant also claimed that his father’s creditors also came to his school on two occasions and essentially threatened him. The Tribunal notes these occurrences were more than ten years ago. It was also concerning that the applicant could not provide details with any certainty as to the amount of any debt, how this came about and whether any of the debt has been repaid. According to him, his father has been in hiding from his creditors, who may be a former business partner for more than ten years. The applicant has also claimed that his father lives in hiding with his [sibling] and his only income appears to be his mother’s pension, (the applicant's grandmother who lives in [city]).
According to the delegate there were a number of inconsistencies in the applicant's account of when the applicant's father left China and regarding who had been responsible for the applicant's fees and living expenses as a student.
The applicant told the Tribunal his father went [overseas] when he was [age] and absent from China for 12 years and during this time he worked and continued to support the applicant financially.
The Tribunal does not accept the applicant's claim that he will be persecuted or harmed for his father’s debts. His evidence confirms he has made no effort to find out any details about this which is surprising in the Tribunal’s view, particularly if he genuinely believed he would be forced to take some responsibility for it. Therefore the Tribunal finds that the applicant does not face a real chance of being seriously harmed as a consequence of his father’s debts and it follows that his fears of harm are not well-founded in this regard.
The Tribunal also considered the applicant's claim that he has lost the necessary social skills and connections required to survive in China. The Tribunal accepts that the applicant has been in Australia for some years and has only returned to China once, briefly when his mother died. The Tribunal accepts that it will be difficult for the applicant to adjust back into the Chinese way of life; however, the applicant is [age], has family in China who will no doubt help him to adjust. The Tribunal does not consider this to be an impediment that cannot be overcome.
Accordingly the Tribunal is not satisfied that the applicant has a well-founded fear of persecution as per s.5J(1) of the Act and therefore the applicant is not a refugee within the meaning of s.5H(1).
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 s.36(2)(a).
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 does not accept that there are grounds for believing that as a necessary and foreseeable consequence of being returned to China, there is a real risk that the applicant will suffer significant harm from the government or the community on account of his sexual orientation or for any other reason. The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Sophia Panagiotidis
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…