1512110 (Refugee)

1512110 (Refugee) [2017] AATA 1081 (15 June 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1512110
COUNTRY OF REFERENCE:                  China
MEMBER:Peter Vlahos
DATE:15 June 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 15 June 2017 at 2:10pm

CATCHWORDS
Refugee – Protection visa – China – Race – Uigher – Political opinion – Activism in Australia – Particular social group – Minority Uighur group – Religion – Islam – Credibility issues – Medical condition – Quality of long-term care in China – Referred for ministerial intervention
LEGISLATION
Migration Act 1958, ss 5(1), 36, 65, 91R, 417, 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

This is an application for 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).
The applicant, who claims to be a citizen of China, applied for the visa [in] March 2014 and the delegate refused to grant the visa [in] August 2015.
The applicant appeared before the Tribunal on 17 February 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
RELEVANT LAW
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
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).
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.
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.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
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.
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.
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.
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
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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Country of Nationality and Identity
Based on copies of the passport of the applicant, which was provided to the Department of Immigration and Border Protection (the ‘Department’) (see Department file, folio 58-64), the applicant’s oral and written evidence, and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of the Peoples’ Republic of China (‘China’) and assessed his claims against that country in relation to ss.36 (2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth). On the basis of the above-mentioned evidence, the Tribunal further accepts their identities as claimed.
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to material referred to in the delegate’s decision. The applicant provided a copy of the departmental record of decision to the Tribunal with the review application.
The issue in this case is whether Australia has protection obligations in respect of the applicant and for the following reasons; the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant first arrived in Australia [in] October 2011as the holder of Class TU (Student) [visa] that was granted [in] September 2011. The applicant has since that dated departed Australia on two occasions - once from [June] 2012 to [July] 2012 and then from [November] 2012 to [January] 2013. [In] February 2012 the applicant made an application for a Class UK (Combined Partner) subclass 820/801 visa. This visa was refused by the Department [in] June 2013. [In] March 2014, the applicant’s student visa ceased. The applicant lodged a valid Protection visa application [in] March 2014 and remains on a bridging visa he was granted in conjunction with his application for protection visa.
Applicant’s evidence before the Tribunal on 17 February 2017
The applicant’s claims for protection can be summarised as follows:
§ He is an ethnic Uighur from [Xingjian] Province in China.
§ He completed his schooling in Xingjian in 2009 and got a temporary job as an [occupation] in the [government] Department in 2010 where he worked until September 2011.
§ When the applicant was approximately [age] years of age he was attending a religious class with 10 other Uighur boys when the class was raided by the police. They were told to stop studying the Koran and the Imam who was running the class was sentenced to two years imprisonment.
§ The applicant experienced various incidents of discrimination during his middle and high school education due to his Uighur ethnicity. He also experienced various incidents during his studying at University.
§ When the applicant had to undertake military training in [year] he was beaten and humiliated by Chinese soldiers on the basis of his Uighur ethnicity.
§ After the Urumqi massacre in 2009 the applicant was attending his graduation at university. He was taken by the police and questioned as to what he had been doing during the massacre. Two weeks later he was attacked by a group of young Chinese people on his way home.
§ After starting work for the Xingjian [government] Department in 2010 the applicant was discriminated against and had his salary reduced when he stood up for another Uighur member of staff.
§ When the applicant travelled back to China in 2012 he was questioned by the police at the airport at Urumqi. One week later he was visited by the police and questioned as to his activities in Australia. During the rest of his stay in China the applicant was called multiple times by the authorities questioning his whereabouts and activities.
§ The applicant attended two demonstrations in Australia, in 2012 and 2013, in front of the Chinese Consulate, regarding the treatment of Uighurs in China.
§ The applicant fears if he is to return to China that he will be beaten tortured and imprisoned by the Chinese authorities.
The Tribunal asked the applicant whether he wished to add, vary or change his original claims as submitted in his application and the applicant made the following variations to his original claims:
§ He (the applicant) graduated from University in 2009
§ In China, before one attends to his University studies (according to the applicant) a student has to do a month’s worth of military training in the Peoples’ Army
§ In reference to his claim (above) that while undertaking training in the Peoples’ Army the applicant was attacked by Han-ethnic Chinese
§ Also, in reference to the applicant being discriminated while working as an [occupation] in the [government] Department the applicant in his application wrote that he was discriminated because he ‘…stood up for another Uighur member of staff…’ it should read that the other person was not a work colleague but ‘…a client…’
The applicant also provided the following documents to the Tribunal:
§Written Submission by the applicant’s representative.
§Applicant’s response to the delegate’s decision.
§HRW 27 January 2017: China continues oppressive policies in Tibet and Uighur press article.
§China passports arbitrarily recalled in Xinjiang: HRW 11 November 2016 press article.
§2015 United States Country Reports on Human Rights Practices 2015, published on 3 April 2016.
§Amnesty International (China 2015/2016) and Human Rights Watch (World Report 2015, 2016 and 2017).
§RRT decision dated 11 February 2014.
§Letter from [a medical] Unit, [Hospital 1] dated [February] 2017.
Applicant’s background as present by him to the Tribunal in evidence
The applicant told the Tribunal for some years he resided within the university-city while attending to his studies in the [Faculty]. The Tribunal was also told that his family, which consists of his parents and a [sibling] live currently in Urumqi, Xingjian province, China. He has another [sibling] who is in Australia and is an Australian citizen. The applicant also confirmed to the Tribunal that between the years [year]-[year] he attended and completed his primary school education. Between the years [year]-[year] he worked to complete his mid-school studies, then studies from [year]-[year] at high school. Finally, he proceeded to University where he completed a [degree] with a major in [field]. Once his education was completed, the Tribunal was told that the applicant gained employment with the Chinese government [Department], where in 2010-2011, the applicant worked as an [occupation].
The Tribunal was told that [in] September 2011, the applicant was granted a student [visa] and he subsequently arrived in Australia to commence his studies [in] October 2011. His reason for coming to Australia was increase his knowledge base to enhance his future employment prospects as he chose to achieve them. However, the Tribunal was told that the applicant’s aspirations for furthering his education were put on hold as he got married. The applicant told the Tribunal that his Muslim faith did not allow for a ‘couple’ to live together as ‘husband and wife’ before ‘marriage’. Once, the two were ‘married…’(according to the applicant) he continued with his studies until his student visa expired.
Then, his funds for his education needs ran out and he could not continue with his studies. In this period of time, the applicant was cohabitating with his wife, who also provided him with the necessary financial support.
Currently, the Tribunal was told he was no working because of his health problems. However before his health problems, the applicant was employed. His work was largely involving him working at various [workplaces]. Since his break up with his wife, he has been heavily reliant on his [sibling] (here, in Australia) for financial assistance and support.
Applicant’s life while he lived in his Province
The Tribunal was told that throughout his life, as far back as the applicant could remember he suffered because of his religion. At the young age of [age] years, when the applicant commenced his studies of the Muslim religion and its holy book – the Koran. By the age of [age] years, the applicant, had with the assistance of a local ‘Imam…’ learnt the context of the holy book – the Koran and the culture associated with the ‘…Muslim’ faith. It was in these formative years, that one day, according to the applicant’s recollection of events, that his studies were disturbed by a sudden knock on the classroom’s door and suddenly local police entered the room and enquired of all present – what were they doing here? There were also accusations made by the police along the lines – why your beliefs are poisoning our children? On this occasion, (according to the applicant’s recollection) his Imam was accused of teaching illegal teachings, when he was only teaching the basics of the Koran’s teachings according to the applicant). Then, the Tribunal was told that the police began to act more ‘aggressively’ and accused all those present including the Imam of being involved in ‘illegal acts’ and he was later punished. The applicant told the Tribunal that his father later told him that the Imam had been imprisoned for two years.
As for the applicant’s recollections at that time, he told the Tribunal that he remembered being taken by police to a different room where the he was interrogated. He was asked – about his identity and what he was learning. He was also asked – how long he was attending these classes. As a young [age]-year old, the applicant found this experiencing ‘…frightening…’ He told the authorities all that he knew and gave them his parent’s details. The applicant also recalled that the police officers who interviewed him were ‘…full of hatred…’ Then, when the interview had finished the applicant was released to the custody of his parents. At that time (in [year]) prior to his release, the applicant’s father had to pay RMB[amount] as a fine and both of his parents were told to sign a letter agreeing not to send – the applicant to such activities in future. His parents were told that all the details about this incident had been recorded.
Incidents at middle/high school
The applicant also recalled that there were incidents of discrimination because of his religion and ethnicity as a Uighur when the applicant attended middle/high school. References were made to an incident when the applicant was not allowed to fast. According to the applicant, it was the religious feast of Ramadan when all devout Muslims must fast from sunrise to sunset. During a school lunchtime period the applicant’s teacher, summoned all the Uighur students to lunch canteen and told the students that ‘…today we will have lunch together…’ The applicant did not wish to tell his teacher that he was fasting because of Ramadan, so he told him that he would not eat because he had a stomach ache. The teacher, the Tribunal was told, did not believe him and told him that today regardless of the pain, he would have to eat. The applicant resisted his teacher’s instructions and was slapped and was forced to eat his food. A similar incident occurred to the applicant in high school when and again during the religious feast of Ramadan. Again, the applicant and classmate refused to eat. His teacher (who was responsible for the applicant’s moral education as determined by the CCP) took them to his office and he suggested that they required political training which involved learning the CCP core ideas. After this political training was completed, the applicant and his classmate would be questioned by his teacher in order to determine what they had learnt. Due to this incident, the applicant was also suspended for one week from attending classes.
Incidents at University

Even while the applicant was attending University, he told the Tribunal that he remained steadfast to his religious beliefs and obligations as a Muslim and ‘fasting’ when required by religious observance was always adhered to. Again, every time the authorities at University found out that religious observances had taken place contrary to the CCP- Party line, the offender in question would be required to undergo a period of compulsory political education training.
Military Training session in [year]
The Tribunal was told that prior to the applicant attendance at university, the applicant as all students in China must attend a three-week compulsory military training course organised by the Chinese Peoples’ Liberation Army (PLA). As a ‘Uighur’ attending this type of training course – this was the ‘worst nightmares…’ What made it difficult for the applicant was the fact his fellow trainees were largely of Han – ethnic Chinese. In this three week training period, the applicant ‘…suffered numerous discriminatory incidents…’ In the second week, the applicant’s trainer made him run around an oval ‘…ten times…’ even though he had injured his ankle. The applicant had difficulties running and he recalled being addressed as a “Uighur pig’ ‘why did you not run…’ and then his trainer forcing him to run the length of the oval even though he was experiencing a lot of pain. On another occasion, the applicant was sent to ‘clean’ a pig pen which he considered to be the ‘…worst insult…’ In order to continue with your education one (according to the applicant) could not resist the military but abide by their rules.
Nevertheless, despite these various incidents of discrimination the applicant was able to complete his studies, the Tribunal was told.
The applicant was asked by the Tribunal to provide an explanation as how it was possible for him to complete his entire education – all levels of his public schooling regardless of this discriminatory system pitted against the Uighur minority in his province of Xinjiang. Indeed, the Tribunal was told he, as a Uighur suffered discrimination. His success in his education was attributed to first, his ability to study hard and to work and second, he developed very good Chinese language skills which was able to use when required. However, it was not easy to complete his studies in these circumstances. The applicant conceded that he had completed his studies well. This was also due to the efforts of his parents who ‘bribed officials…’ in the [Ministry] for the applicant to get employment in the Ministry. If, the applicant was a Han Chinese he would have achieved a lot more with his life.
Urumqi Incident and Massacre in 2009
The applicant told the Tribunal that the events of [July] 2009 had a major impact on him. On that day he was going to the hotel in Urumqi where his graduation ceremony was going to take place. As the ceremonies commenced crowds were seen outside and gun-shots heard around the outside of the building. All who were attending the ceremony scheduled for that day did not know what was happening. The applicant told the Tribunal that the only explanation they were provided with was – that there were a number of incidents outside and that arrangements should be made for all in attendance to be picked up from the hotel and taken home. As the applicant proceeded to leave the hotel building with others he was stopped by twenty paramilitary police who told them not to move inside. The applicant was then taken to a room – was questioned, searched and was spoken to rudely by the authorities and humiliated. The entire interrogation process made him (in the way it was carried out) ‘…humiliated…’ The interrogation completed and the authorities having found nothing ‘…wrong…’ the applicant was allowed to go home but was not allowed to move about freely as he would wish except with the authorities’ permission and was confined to his home.
Other incidents involving the applicant
The Tribunal was told that on another occasion the applicant was asked both other Uighurs (he knew) to do some shopping at a local grocery shop. When the applicant walked in, the grocery store owner recognising he was a Uighur told him that he had nothing to sell him and that he (the applicant) should go to another shop. The applicant did go to another shop and was again told, that the shop-owner had nothing to sell to him. After questioning the shop-owner as to why he did not wish to entreat a Uighur, the shop-owner changed his mind but requested extra money which the applicant paid and received the goods.
On his return back to his home, the applicant was followed by an unidentified group of Chinese who stopped him and beat and kicked him for three minutes and then they left me. This attack was described to the Tribunal as a random attack and the applicant had been singled out because he was a ‘…Uighur person…’ but he did not explain how his attackers identified as a ‘Uighur’.
The applicant’s work at the [Ministry]
While working at the [Ministry] the discrimination encountered by the applicant largely involved his use or non-use of his Uighur language. The applicant was prohibited from speaking his ethnic language. All of his discussions should begin and end with the speaking the accepted – official Chinese language. There was a strict observation of this policy. To illustrate this discrimination the Tribunal was told of an incident when the applicant – when an employee of the Ministry assisted an elderly client by conversing to him in the applicant’s Uighur language in order to better understand what the client wanted done. The Tribunal was told that the Ministry’s Manager called the applicant into his office and he was punished by his salary being reduced by 50% for a period of three months and he was told to participate in a political training course which was conducted within the Ministry’s organisation. Furthermore, the applicant explained to the Tribunal that language protocol of the Ministry as he understood it was Mandarin and that speaking the Uighur language between colleagues of the same ethnicity was not allowed.
Travel since leaving China back to his Province
The applicant has travelled back twice to his home province since he left for Australia. His first visit back to China was in June 2012 because his mother was severely ill [and] the applicant stayed less than a month. His second trip to China occurred in November 2012, again it was caused because of his mother’s illness and on this occasion he stayed in China for two months. His experience on both occasions was difficult and he was frightened when dealing with the authorities. He was subjected to security checks at Urumqi airport when he arrived and when he departed. He also recalled an instance where he could see Han Chinese around him pointing to him – identifying him as a ‘Uighur’ and then taking him to a room for questioning.
The mode of questioning the applicant was subjected to was to do with – what he was doing in Australia, to which he said he was studying (at that time). His suit case was examined and he had all of his contact details checked by the authorities. On arrival in China, his passport was checked and withheld but when he was leaving, the passport was provided to him. This encounter with security left the applicant scared and concerned. During his time in China, the applicant was also requested to cooperate with the authorities. He recalled that two officers (after being a week in China) or special police in civilian dress would come to his home and take him to a hotel where they would discuss with him questions about Australia, how long he lived in Australia and what he was doing in Australia. The applicant’s response was (at that time) he was studying.
Then, the Tribunal was told that one of the officers, asked him – when he was in Australia did he come into contact with various people. The applicant did tell the authorities that he did know some persons in the Uighur community in Australia and identified from a photo the ‘leader’ of [an organisation] in [State 1]. The officers then asked him – did he have some association with this person when he was in Australia. His response was ‘….I told them ….. [I knew of them] but did not know them personally. It was at one of these meetings that the applicant was asked by the officers - whether he would provide reports to them on what ex-pat Uighurs did in Australia. When the applicant heard this request he told the Tribunal that he became ‘worried’ and ‘scared’. It was the applicant’s view that these two officers wished him to ‘spy’ on his ‘…own people.’ He told them that he did ‘not know many people…’ and that he could not help them. They then told him that they did not require a decision immediately but that he should remember that it was in China that he had family and friends. Then they left the applicant alone until the next day. The next day, they came again and told him he was free to leave and the applicant ‘…pretended to agree with their request…’ Two days later, the Tribunal was told, the applicant’s passport was returned to him.
Initially, the applicant told the Tribunal his discussions with the police were held in a hotel room, and then he completed his description by telling the Tribunal that he was in an ‘office.’ The Tribunal asked the applicant why would security police who wanted interview you, first take you to a hotel and then complete their interrogations at their headquarters. Why not conduct the entire interrogation at their headquarters? The applicant’s explanation was that ‘…from my understanding…they [the police] were testing me…’
Interest of the Chinese authorities in the applicant and his family when he was in Australia
The Tribunal was told that his parents were also harassed. This harassment occurred in 2015, when the authorities accused the applicant of doing certain activities. This required his parents to attend the political office of the local police to answer questions. The applicant also told the Tribunal that his father was accused of having ‘incorrect political ideas’ because of the actions of his children.
The applicant’s political activities while in Australia
With regards to the applicant’s political activities while in Australia, the Tribunal was told the following:
§He has been politically active while in Australia especially on issues concerning the Uighur minority.
§This activities include political meetings held in public
§In 2011, he met the leader of the Uighurs who was visiting Australia. He and others went to the airport and received her and rode in the same car with Uighur Leader.
§He acknowledged her visit together with others by sending to her flowers in recognition of her efforts in providing the Uighur people with a ‘free’ voice internationally.
§He also attended a dinner and political meeting attended also by other Uighurs in Australia at [a] restaurant where a main political speech about the rights of the Uighur peoples of China was made by the Uighur Leader.
§He also made a one-off contribution to the Uighur cause by making a donation in the sum of AUD$[amount] to [Organisation 1] for the eventual establishment of a Uighur home.
§He also participated in two demonstrations in 2014
§He also participated at the events and prayers held at the Muslim Mosque at [suburb] and contributed AUD$[amount] to its building fund.
The applicant’s receipt of a Chinese passport – did he experience any anomalies?
The Tribunal was told that before the applicant could actually receive his passport he was required to go through certain levels in the Chinese bureaucracy. At first one goes to the local police station and applies, then that request is sent on to the Religious Affairs Department and then to the (what the applicant described) the ‘Border Exit’. After all these levels are passed – successfully, an applicant waits for 6-8 months before the passport is issued to him. The Tribunal enquired of the applicant – why so many levels of bureaucracy are involved. His response was – because of ‘…my Uighur ethnicity…’ It was the applicant’s view that the Han Chinese get their passports quicker and with less bureaucracy involved. He also told the Tribunal in order to facilitate the process – at a quicker pace; he paid RMB[amount] to a network to get the passport released earlier and without delay.
The applicant’s ‘fear’ if he was to return to China
The applicant’s fears for returning to China are as follows:
§He has lived in China for [number] years and in that time, he has suffered discrimination and persecution.
§After his arrival in Australia, he has been happy and free this was never possible in China.
§If he returns to China and to his home province, Xinjiang he will encounter persecution and discrimination.
§Moreover, while in Australia, he has attended a number of political activities and meetings which will be known to the Chinese authorities and this would have consequences for him – if he is forced to return.
Discussion concerning the applicant’s visa history
The Tribunal noted the applicant’s migration history as it had been outlined in the Department’s decision record. The applicant’s migration history was as follows:
§In 2011, the applicant arrived in Australia on a Student visa. That visa’s duration was for three years;
§In 2012, the applicant was married and made an application for a spouse visa;
§In [2013] the combined spouse visa was refused by the Department;
§[In] March 2014 the student visa ceased;
§[In] March 2014 the applicant made an application for Protection visa.
The applicant explained to the Tribunal that when he arrived in Australia, he was on student visa and that visa was for duration of three (3) years and did not think that he had to apply for a protection visa if he was already on a substantial visa. With regards to his combined spouse visa which was refused by the Department, the Tribunal was told that he ‘…was not born rich…’ and ‘…if I had a wife…she could support my education…’ Nevertheless, the applicant was in love with his former wife but the marriage broke-down.
Medical condition of the applicant currently
At the hearing the applicant also told the Tribunal that in recent times his health had deteriorated significantly. He told the Tribunal that in late 2015 he developed [a medical condition] and underwent a [procedure] [in] November 2015. He is currently continuing with post-surgery treatment with heavy drugs but his condition provided he continues to receive the medical attention as is currently provided to him, his recovery prospects are positive. The Tribunal noted that the applicant provided the Tribunal with a letter from the [medical unit] situated at [Hospital 1] dated [February] 2017 dictated but not signed by [Dr A], [Senior Consultant] which confirmed the applicant’s medical condition and his continued medical supervision and treatment.
Post-hearing submissions to the Tribunal
The applicant’s legal representatives provided the following documents on 20 March 2017, to the Tribunal:
§Letter from the [medical unit], [Hospital 1] dated [February] 2017
§Letter dated [March] 2017, from [name deleted], [Organisation 1] of [State 1]
§Response of the Applicant to issues arising from the Tribunal hearing held on 17 February 2017
§Post Hearing submission by the Applicant’s legal representative.
The applicant’s legal representatives also provided an email dated 4 April 2017 which made it known to the Tribunal informing it that:
“We have just received instructions from client that his parents’ passports have been confiscated by the authority and this is consistent with the country information previously provided, a copy of which is herein attached, for your reference….”
Country Information
The Tribunal is also guided by the DFAT (Department of Foreign Affairs & Trade) Country Information Report on China, dated 3 March 2015 which describes the current situation in China concerning the Uighurs as follows:[1]
[1] Department of Foreign Affairs and Trade Country Report – China 3 March 2015, at pp.8-10.
Race/Nationality
3.1 China’s Constitution prohibits discrimination on the grounds of nationality and protects people’s ability to both use and develop their own spoken and written languages as well as to preserve or reform their own folkways and customs.
3.4 In Tibet and Xinjiang (the only two autonomous regions where the ethnic minority represent the majority over the Han), the Chinese government has emphasised what it calls “leap frog development” (a government policy of enhanced economic growth, investment and development in order to improve livelihoods). Considerable investment by the government has improved material living standards. However, in some cases, rising numbers of migrants (mostly Han) have increased competition for economic opportunities, and altered traditional livelihoods and cultural practices. In some cases, these grievances have led to resentment and violence between Han and ethnic minority communities. The situation for Uighurs and Tibetans is compounded by broader religious, security and political issues and is discussed in greater detail below.
Ethnic Uighurs
3.5 The Uighurs is a Turkic peoples native to Central Asia. Uighurs in China live mostly in the southern, poorer areas of the Xinjiang Uighur Autonomous Region (Xinjiang), as well as in Gansu, Qinghai, Tibet and Hunan. Uighurs account for around 45 per cent of the total population in Xinjiang and the Han Chinese account for around 40 per cent (an increase from the Han’s estimated six per cent in 1949). In the capital Urumqi, 75 per cent of the population is ethnically Han. Uighurs are predominantly Sunni Muslims but also identify themselves according to a secularised cultural identity and in some cases, traditional Sufism. Average life expectancy in Xinjiang is slightly lower than the national average at 72.35 years.
3.6 The Chinese government has adopted a range of policies to preferentially benefit members of the Uighur community, including preferential access to education and employment and less restrictive limits on family size. However, these policies have been accompanied by increased restrictions on cultural and religious freedoms. According to Uighur groups and international human rights organisations such as Amnesty International, the Chinese government’s policies of modernising Xinjiang’s economy, maximising resource exploitation and encouraging Han migration have disproportionally benefitted the Han and have undermined the Uighurs’ religious and ethnic identity. Such groups claim these policies and the government’s heavy security presence in Xinjiang have increased inter-ethnic tensions.
3.7 A number of violent incidents have occurred in Xinjiang in recent years, resulting in numerous Uighur and Han casualties. Riots in Urumqi on 5 July 2009 resulted in approximately 200 (mostly Han) deaths. More recently, terrorism incidents purportedly linked to Uighur separatists have occurred throughout Xinjiang as well as in Yunnan and Beijing. The government has consequently implemented a zero-tolerance campaign against separatists and terrorists and intensified the security presence across Xinjiang. The government has also carried out a series of high-profile prosecutions of persons with suspected linkages to violent incidents. In some cases the authorities have conducted group trials and mass sentencing hearings. The death penalty has been used in some cases purported to be directly linked to acts of terrorism. Some Uighurs have been given harsh sentences for their political views, including some well-known Uighur academics. Credible human rights organisation Duihua estimates there are several thousand Uighurs in prison for political crimes in China. Access to information about incidents of violence in Xinjiang, or related legal cases, is tightly controlled and difficult to verify.
3.8 Generally speaking, Hans and Uighurs living in Urumqi go about their daily lives in relative freedom, albeit mostly living and working in separate areas of the city. Middle-class Uighurs who speak Mandarin and who have been educated through the dominant Mandarin education system can integrate within Han society and lead normal lives in Urumqi, including having access to good jobs. However, DFAT assesses that such cases would be the exception rather than the norm. Uighurs with poor Mandarin skills may find it more difficult to find employment in Han-dominated companies. Some Uighurs report discrimination in other parts of the country, such as being denied accommodation at hotels or being subjected to regular security and police checks either out in the street or in their homes. It can be difficult for Uighurs to obtain passports or to leave Xinjiang to undertake domestic travel.
Uighur Muslims
3.13 The Chinese government restricts devout expressions of the Islamic faith in some cases. In some cities and prefectures of Xinjiang, local authorities enforce bans against wearing full veils, growing beards, fasting by government officials or students during Ramadan or private religious education. Chinese law prevents people under the age of 18 from attending prayer at mosques. Authorities have increased surveillance of religious sites, including mosques, since recent attacks. Limits are put on the number of people doing the Haj. These measures have intensified existing tensions between the Uighur community and authorities. Uighurs can therefore be at risk of both official and societal discrimination and violence.
The Tribunal’s conclusions about the applicant’s claims
FINDINGS

The Tribunal does not accept that the applicant is a credible witness for the following reasons:
(a)the claim of discrimination because of his ethnicity and religion in his education
From the outset the Tribunal accepts that the applicant is a Uighur, a believer in the faith, known as Islam from Xingjian Province, China. It accepts that the applicant has experienced various levels of discrimination – official and unofficial and that independent country information available and referred to by the Tribunal above confirms that this is the current situation in present day China with regards to ethnic Uighurs. However, the Tribunal does not accept that the discriminatory treatment throughout his education as complained of by the applicant amounted to persecution involving ‘serious harm’ as required by s.91(1)(b) of the Act. Although, the applicant recalled incidents in which he was treated differently from other classmates, the fact remains that he was able to complete his schooling and to study successfully for a degree at University.
(b)discrimination at the applicant’s place of employment in [a Department] of the [Ministry]
So far as the applicant’s employment is concerned, the Tribunal noted that the applicant claimed that while working for [a] section of the [government] Department in his province, he was not permitted to use his own language in his dealings with members of the public and had been penalised by his employer by having his earnings reduced and subjected to a period of political re-education for not following the Department’s language protocols which required the applicant to use ‘Mandarin-only’ in dealings with the public. The Tribunal does considers the applicant’s claim an embellishment of the truth than a form of discrimination at his place of employment because the applicant by his own explanation of events (see paragraph 41) explained that the language protocol as he understood it for the Department he worked for was ‘Mandarin’ and that conversing with colleagues or the public in the Uighur language was not permitted and this applied to all employees of [the government] Department. Therefore, the Tribunal does not find as credible the applicant’s claim that he was discriminated by his State employer by forbidding him to speak his mother-tongue while at his work with his colleagues or the members of the public.
(c)travel to China and interrogation by local authorities
The applicant claimed that he travelled twice to his home province, Xingjian in 2012. His first visit was in June 2012, to see his mother who was [ill] and then, for a second trip, in November 2012 again – his reason for travelling to China was to see his mother who was very ill. On the second occasion, the applicant stayed in China for two months (see paragraph 42). The applicant also claimed he had his passport withheld and then subjected to a series of interrogations (see paragraphs 43-44). According to the applicant these interrogations happened by plain clothed police who came to his home and then took him to a local hotel in order to interrogate him about matters concerning the overseas Uighurs in Australia. The applicant was of the belief that these officials wanted to recruit him to ‘spy’ on other Uighurs in Australia and were ‘testing him’ that that was reason why the interrogations happened at a hotel and not at the local police headquarters. The Tribunal does not find the applicant’s explanation of these events as credible. Indeed, the applicant did not provided a credible explanation to the Tribunal as to why security officers would choose to interview him about issues concerning Uighur activities in Australia in a hotel room and not at the local police/security headquarters as would have been the norm. It would be reasonable for government officials inviting the applicant to spy to discuss such activities in a secure environment rather than in a local hotel as claimed by the applicant. Therefore, the Tribunal does not accept that the applicant was a person of interest to the authorities when he visited China in June and November 2012 and that he was not subjected to interrogations by the local authorities or invited to spy on Uighurs in Australia on behalf of the Chinese government as he claimed.
(d). the interest of the local authorities in the applicant and his family while the applicant was in Australia.
The applicant claimed at the scheduled hearing told the Tribunal that while in Australia he had been politically active – supporting the International Uighur movement and attending a number of functions organised by its supporters. Furthermore, the applicant’s counsel in his post-hearing submission stated that the applicant’s political activity in Australia occurred long before he submitted his application for protection (see, paragraph 47). As a result of this activism, the applicant claims that his family have been questioned about these activities by the local security authorities and that his father had been accused of having incorrect political ideas because of the applicant’s political activities. The Tribunal does not accept this claim as credible. If the applicant was a person of interest to the Chinese authorities because of his political activities in Australia, they would have detained him prior to his visit in 2012 and not allowed him to leave China in June 2012. Neither would they would have invited him to spy on Uighurs in Australia. In his evidence to the Tribunal, the applicant travelled to China in June 2012 and in November 2012. On the last occasion he remained in China for two months. Therefore, the Tribunal does not accept the applicant was a person of interest to the Chinese authorities due to his political activities nor that as a result of the applicant’s political activities while in Australia his family was harassed and his father accused of having incorrect political ideas.
(e). the claim that the authorities had seized the passports of the applicant’s parents
The applicant also made the claim (post-hearing) that his parent’s passports had been recalled by the Chinese authorities in Xingjian Province.[2] The applicant provided no explanation to the Tribunal why the authorities had taken such action. However, the Tribunal was provided with a press article ‘China: Passports Arbitrarily Recalled in Xinjiang’ from Human Rights Watch[3] which states the following:
“The government’s blanket recall of passports allegedly for reasons of ‘collective management’ follows similar passport restrictions in the Tibet Autonomous Region, but has not apparently been imposed elsewhere in China…”
Indeed, the article submitted to the Tribunal by the applicant’s representative in support of the applicant’s claim, the Tribunal finds that contrary to the applicant’s representative’s submission that the applicant’s parents had been singled out and had their passports confiscated, the opposite is the case as is reported and that it would seem that there has been a general recall of all current passports in the Xinjiang and Tibet Autonomous Regions and not as claimed a particular recall of the applicant’s parent’s passports as a result of their association with the applicant.
[2]AAT File no.1512110, folio 117.
[3]China: Passports Arbitrarily Recalled in Xinjiang, Human Rights Watch, 21 November 2016,
For the reasons given above, the Tribunal finds that there is no real chance that the applicant will face persecution for any Convention reasons including his race (Uighur), his nationality (East Turkestani), his claimed political opinions (imputed separatist/nationalist and anti-Chinese regime) or religious beliefs (Islam) or his membership of a particular social group, the ‘minority Uighur group’ or any other related Convention reason, if he returns to China now or in the reasonably foreseeable future. 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 refugees criterion set out in s.36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa) of the Act. Having regard to the Tribunal’s findings of fact above, the Tribunal does not accept that the applicant was a continuing adverse interest to the authorities because of his activities while in Australia, nor that that he was interrogated by the authorities when he returned to China in 2012 and pressured to act as a spy on his fellow Uighur countrymen in Australia. The Tribunal does not accept that he suffered significant harm in the past because of his religious or ethnic background nor does it accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to China; there is a real risk that he will suffer significant harm for those reasons. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
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).
RECOMMENDATION FOR CONSIDERATION OF MINISTERIAL INTERVENTION
In the applicant’s post-hearing submission dated 8 March 2017 a request was made for the Tribunal to refer this case to the Minister for consideration in the event the applicant is found not to meet the criteria for the grant of a Protection visa under s.36 of the Act.
The Tribunal notes that under s.417 of the Act the Minister has a discretionary power to intervene in a matter and grant a visa to an applicant where he considers it would be in the ‘public interest’ to do so. The Minister’s Guidelines state that the public interest may be served where the Australian government ‘responds with care and compassion’ where an individual’s situation involves ‘unique and exceptional’ circumstances, which are said to include:
§ Compassionate circumstances regarding the applicant’s age and/or health and/or psychological state such that failure to recognise them would result in irreparable harm and continuing hardship to the applicant.
The evidence before the Tribunal (a letter from [Dr A] dated [February] 2017) indicated that the applicant in late 2015 had developed [medical condition]. According to the medical evidence submitted to the Tribunal this [medical condition] was not caused by an underlying chronic medical condition and required a life-saving [procedure] which occurred [in] November 2015. Since that date, the applicant’s medical condition has been constantly monitored and this includes all administered medications.
Further medical advice received by the Tribunal dated [February] 2017 by [Dr A], Senior [consultant] [medical] Unit; [Hospital 1] addressed the issue of whether it would be safe for the applicant to return to China for his ongoing care. It was the opinion of [Dr A] that a return to China by the applicant in his current medical state would result in the premature death of the applicant. It was the opinion of [Dr A] that many [medical] programs in China did not have the ability to provide the long term care essential for patients after [such a procedure]. Such long-term care can only be provided to the applicant in Australia.
For these reasons, the Tribunal considers that the circumstances warrant that it recommends to the Department that it conducts an assessment of the applicant’s circumstances, including a consideration of the matters raised above and, accordingly, provides an appropriate submission to the Minister for his consideration.
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Peter Vlahos
Member

[2017] AATA 1081

15 June 2017

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