1601459 (Refugee)

[2017] AATA 2005

1601459 (Refugee) [2017] AATA 2005 (5 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1601459

COUNTRY OF REFERENCE:                  China

MEMBER:Amanda Paxton

DATE:5 October 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 05 October 2017 at 4:44pm

CATCHWORDS

Refugee – Protection Visa – China – Particular social group – Homosexual – Discrimination – Fear of persecution – Psychological harm

LEGISLATION

Migration Act 1958, ss 5(1), 5J, 36, 65, 91R, 91S, 499

Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. 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).

2. 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] January 2016.

3. The applicant appeared before the Tribunal on 31 August 2017 by video link from the [City 1] AAT to give evidence and present arguments.  

4. A copy of the delegate’s decision record dated [in] January 2016 was provided to the Tribunal by the applicant. 

   RELEVANT LAW

5. 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

6. 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).

7. 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.

8. 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.

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

10. 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.

11. Section 91R(2) provides that the following are instances of serious harm: (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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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

17. 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’).

18. ‘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

19. 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

20. 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 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

21. The applicant presented his claims in his Protection visa application, at interview with the delegate, as discussed in the delegate’s decision record provided to the Tribunal by the applicant, and in his oral evidence at the Tribunal hearing.[1] [2] These claims are summarised as follows:

    ·     The applicant is homosexual from Jiangsu province, China. As a homosexual man, the applicant experienced familial pressure to change his conduct, in particular to marry, a pressure that was immensely stressful to resist.

    ·     As a homosexual man in China, the applicant experienced societal and workplace discrimination.

    ·     On return to China, the applicant faces heavy pressure from his family, friends and the community to marry in accordance with societal expectation. He faces societal and employment discrimination, leading to deterioration of the applicant’s mental well-being and to psychological harm.

    ·     The applicant claims that while there are no specific laws against homosexuality in China, the stigma associated with homosexuality renders homosexuals vulnerable to abuse of laws of hooliganism, police harassment, arbitrary detention, extortion and blackmail.

    [1] [DIBP reference deleted]

    [2] AAT, ff. 9 - 32

    Country of reference

22. The applicant claims to be a national of the People’s Republic of China. Based on the copy of his passport, the Tribunal finds that China is his country of nationality for the purposes of the Convention and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.

    Assessment of claims

23. The issue in this case is whether the applicant has a well-founded fear of being persecuted for a Convention reason, or whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country of China, 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.

24. The applicant presented his oral evidence in a frank, specific and spontaneous manner. The applicant’s evidence at hearing was entirely consistent with his past statements and unembellished. The Tribunal considered the applicant’s evidence demonstrated personal experience and knowledge and found the applicant to be a strongly credible witness.

25. The Tribunal accepts the applicant’s oral evidence that he was born in [year] (and is now [age] years old) in the town of Yixing, Jiangsu province, a small town about half way between the cities of Nanjing and Shanghai.

26. The Tribunal accepts the applicant was academically successful at school and obtained entrance to [University 1], in 2001. While it was not his first choice of course, he undertook a [degree] majoring in [major].  The Tribunal accepts the applicant’s evidence that while growing up he felt different from others, but he was always in a protected environment surrounded by his male cousins and play mates. The Tribunal accepts the applicant’s evidence that in the sexually repressive environment of his conservative home town, he did not have any awareness of homosexuality and he did not experience a sexual awakening until he reached university, where his course opened his eyes to social issues including sexual orientation and gender issues, and “he realised who he was”.

27. The Tribunal accepts the applicant’s evidence that it was shocking and confronting for him and his friends to learn about LGBTI issues from their avant-garde, overseas trained teacher in their [course]. The Tribunal accepts that his peers held negative attitudes towards homosexuals and even his close friend and room-mate in conversation after this course said that he would not be friends with someone who was homosexual. The Tribunal accepts that the applicant’s understanding of himself as homosexual, “gay”, developed during this period and he tried to read articles about being gay in China and started on-line chat with gay people about life overseas.

28. The Tribunal accepts that the applicant did not have any serious relationships when he was at university. The Tribunal accepts the applicant was scared to reveal his sexuality to anyone because he feared the humiliation and rejection of his friends. The Tribunal accepts that after leaving university, the applicant had the first of a few homosexual relationships, but that these, as discussed below were short-lived. The Tribunal accepts the applicant is homosexual. 

29. The Tribunal accepts the applicant’s evidence that his parents and extended family live in an area that is quite wealthy but nevertheless very conservative, and that his parents and family hold traditional views in respect of marriage and family relationships. The applicant gave evidence that his father, now retired, was in [a variety of government roles], and his mother [ran a business]. The applicant described his relationship with his father as not close and always very complicated, because the applicant witnessed his father’s mistreatment of his mother, and because of the arbitrary nature of his father’s punishment of the applicant when he was young. The applicant told the Tribunal that his relationship with his mother was, and remains, a loving one and the applicant forgives his father for his mother’s sake. In growing up, the applicant had considerable contact with his cousins, who are quite numerous, especially on his father’s side of the family. From [University 1], the applicant returned to the family home on traditional festivals, such as the Spring festival. The Tribunal accepts the applicant evidence that he was placed under heavy familial pressure to conform to traditional Chinese values.

30. The Tribunal accepts the applicant’s evidence that after he graduated, he returned to the family home, but he did not find work immediately, did not feel independent and felt uncertain about how to find a job. The Tribunal accepts the applicant’s father felt ashamed and angry that the applicant was not working, although he was aware of the difficulties in obtaining employment and the role of connections and was well-connected himself; and that the applicant left the family home secretly after a fight with his father and found a short term job [in Occupation 1]. The Tribunal accepts that he next worked in [Occupation 2] after being introduced to the company by his first boyfriend, but left the company when he broke up with his ex-boyfriend.

31. At hearing, the applicant discussed the intense pressure placed on the child of a family in China in the era of the one-child policy, to be successful in a traditional way, and that this is closely associated with traditional views of marriage and family. In this context, the Tribunal accepts the applicant was very scared that people would judge him negatively if he was public about his sexuality; that he told his first boyfriend not to call him because he did not want to alert anyone to this relationship; that he did not want to be ashamed. The Tribunal accepts this relationship did not go further because of the applicant’s fear of discovery. The Tribunal accepts he wanted to form other gay relationships but found that many were looking for casual encounters; and while he wanted something more, he was held back by his fear of being found out as gay and disgraced.

32. The Tribunal accepts that in 2006, the applicant joined [an industry] company in Nanjing, [Company 1], as an [Occupation 3]. This company [description of company business]. He made many friends there but also had some bad experiences. The applicant’s employer and workmates were caring, but this was demonstrated in a high level of interest in the applicant’s personal life, in particular, his intentions as a young eligible man, to marry, as all his peers were doing. The Tribunal accepts the applicant’s claim that it is  part of Chinese culture to enquire about personal matters such as marriage and family. The Tribunal accepts the applicant found the social pressure was relentless, and to avoid this, he became increasingly estranged from workmates. 

33. The Tribunal accepts that in 2010 he was overlooked for promotion and ultimately his contract with [Company 1] ceased. The Tribunal takes into account that these events coincided with his known plans to study in Australia, but accepts the applicant’s belief that one of his colleagues told his boss he was gay and he was not promoted for this reason.

34. On the evidence of the applicant, the Tribunal accepts that in this period, the applicant maintained contact with his parents and returned home for festivals. The Tribunal accepts the applicant’s parent’s desire for him to marry increased as time went on, as they themselves experienced pressure from their relatives and the community to see the applicant marry, and that they felt shame about the applicant’s failure in these terms. The Tribunal accepts he found the effort to resist his parents extremely stressful and in 2008 he came out to his parents. The Tribunal accepts the applicant’s evidence that their response was very emotional and angry; that they said it was just a fad and that he would get over it. The Tribunal accepts his parents could not understand how he could refuse to marry, saying that marriage is not about the sex; that sexual life was not important; and that marriage was needed to have someone to grow old with and for a child to support him later in life, and that he should focus on these things. The applicant told the Tribunal that he cannot feel this way; that he understands where his parents are coming from; that for them marriage is an essential part of success and they feel ashamed of him. The Tribunal accepts the applicant found it very hard to bear his parent’s response, and especially to bear his mother’s distress. The Tribunal accepts the applicant felt under great emotional pressure from his parents to deny his sexuality and to marry.

35. The applicant gave evidence that in this job, he travelled [overseas] and was exposed to more liberal LGBTI attitudes. In the same period, the applicant became friends with a professor in China who used to teach in [an Australian university]. The professor offered to help the applicant to make arrangements to study in Australia. He decided to study [specified degree] because this was a profession on the migration list, and his friend also said the profession was tolerant of the gay community. His parents were very angry that he was rejecting them, but he felt the pressure of his parents were smothering him and he wanted to leave China hoping his parents would change their attitude toward him.

1. The Tribunal accepts that shortly after the applicant came to Australia in June 2010, his friend who lived in [location], passed away, and the applicant moved to [City 1] because it was cheaper. The Tribunal accepts that as a student in Australia, the applicant did well in his [degree], adjusting to the different educational style and learning to be an independent student. The Tribunal accepts that even though he was successful and tried very hard, he could not find an internship or work [in the profession] (largely because he was not a resident) and, along with most of his friends who studied [that discipline], he ended up working in hotels, restaurants etc. The Tribunal accepts that after his [degree], the applicant [studied further] and he was not aware that this course was not equivalent to the qualification required to meet criteria for a [specific temporary visa] and that his application for a [temporary visa] application was refused.

2. The Tribunal accepts that the applicant has not had work rights for some time and that he has experienced some financial hardship. The Tribunal accepts that in Australia, the applicant has strong support from friends, in particular, from his boyfriend of about five years. The applicant does not live with his boyfriend who remains living in a marriage, although he came out to his wife and adult children 17 – 18 years ago and is open with his wife about his relationship with the applicant. While this arrangement is not traditional and, according to the applicant, it is not easy when his friends question him about it, the Tribunal formed the view that his life with his boyfriend, including holidays and day to day support (his boyfriend brought the applicant to the hearing), is based on a strong and deeply important relationship for them both. The Tribunal accepts the applicant’s statement that if this application is not successful, he will be very sad to have to leave the person he loves.

   Does the applicant have a well-founded fear of persecution arising from his sexuality or a real risk of significant harm on return to China?

3. At hearing, the Tribunal noted the applicant indicated in a number of areas of discussion that should he return to China, he would be discreet about his sexuality, for example by avoiding discussing his personal circumstances with family or work colleagues. As discussed with the applicant at hearing, the Tribunal makes the following assessment on the basis that the applicant will live openly as a homosexual in China and not conceal or supress his homosexuality.

   Harm from the authorities

4. The Tribunal has considered the applicant’s statement at hearing that he does not face harm from the state and that he does not consider himself a refugee for reason of his homosexuality. However, given that the applicant claimed in his statement that while there are no specific laws against homosexuality in China there is scope for ambiguity in the law through use of provisions against hooliganism which have definitions that include sodomy  and which carry with it administrative punishment, the Tribunal has considered this issue. The Tribunal has also considered the submission in the applicant’s written application that:

   ·     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 against them, for example arresting LGBT people for suspected prostitution and using circumstantial items such as possession of condoms as prima facie evidence of involvement in prostitution.

   ·     LGBTI people continue to be vulnerable to extortion and blackmail from the police and security services, as well as from the broader society, as a threat of revealing their sexuality.

   ·     Laws and regulations continue to place broad restrictions on the diffusion of LGBT-related content across all sections of the media. Laws and regulations continue to define homosexuality as 'abnormal' and fail to differentiate between sexually explicit and non-explicit LGBT content in broadcasts, television programmes and films.

   ·     The rights of LGBT are completely disregarded by authorities in China. 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.

   ·     In education, homosexuality continues to be largely ignored and invisible within the Chinese education system, despite the vulnerability of young LGBT people. There is no reference to sexuality in the regulations on the prescribed personal, health and sexual education.

   ·     Attempts to register LGBT societies have largely been met with refusal by university authorities in China.

5. In considering whether the applicant has a real chance of serious harm or a real risk of significant harm from the authorities in China for reason of his homosexuality, the Tribunal has taken into account the following country information from DFAT from 2015, put to the applicant advice from DFAT that:

   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. [3]

   [3] DFAT Country Report, People’s Republic of China, 3 March 2015

6. The Tribunal has also considered country information contained in the United States Department of State Country Report on Human Rights Practices – China, 2016, put to the applicant, that states:

   Acts of Violence, Discrimination, and Other Abuses Based on Sexual Orientation and Gender Identity

   No laws criminalize private consensual same-sex activities between adults. Due to societal discrimination and pressure to conform to family expectations, most lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons refrained from publicly discussing their sexual orientation or gender identity. Individuals and organizations working on LGBTI issues continued to report discrimination and harassment from authorities similar to that experienced by other organizations that accept funding from overseas.

   Despite reports of domestic violence among LGBTI couples, the regulations on domestic violence and the Family Violence Law do not include same-sex partnerships, giving LGBTI victims of domestic violence less legal recourse than heterosexual victims.

   Although homosexual activity is no longer officially pathologized, some mental health practitioners offered “corrective treatment” to LGBTI persons at “conversion therapy” centers or hospital psychiatric wards, sometimes at the behest of family members.

   NGOs reported that although public advocacy work became more difficult for them in light of the Foreign NGO Management Law, they made some progress in advocating for LGBTI rights through specific antidiscrimination cases.[4]

   [4] US Department of State, "Country Report on Human Rights Practices 2016 - China (includes Tibet, Hong Kong, and Macau)", 03 March 2017, OGD95BE926885

7. The Tribunal also discussed with the applicant country information that suggests that legislative changes have not been in a constant trajectory, noting reports that new regulations have been put in place to ban media content that “exaggerates the dark side of society”, including homosexuality, extramarital affairs, one night stands and underage relationships as illegal on screen, along with a ban on screen of smoking, drinking, adultery, sexually suggestive clothing, and even reincarnation.[5]

   [5] >

   The Tribunal also put to the applicant that media reports indicate NGO organisations are active in supporting the LGBTI community and working to raise the awareness of the LGBTI community, and promote the gay movement and multicultural development.[6]

   [6] "China's gay group finds a public place to call home", China Daily, 7 June 2010,

8. In response to the country information above, the applicant agreed that there are no criminal sanctions against homosexual conduct and he indicated that he does not fear physical threat, harassment , extortion or ill-treatment from anyone, state of non-state, or denial of services, on return to China because he is homosexual. 

9. The Tribunal has considered the available country information, as set out above, and accepts that homosexuality is not an offence under national laws. On the basis of the independent country information above, the Tribunal accepts that China remains a generally conservative country and that there is no legislation against discrimination against LGBTI people. The Tribunal accepts that discriminatory policies such as those relating to LGBTI media content, family law, and education about LGBTI issues, exist in China. The Tribunal also accepts the DFAT assessment that public opinion is becoming more tolerant and that the severity of societal discrimination varies according to location.  

10. In this consideration, the Tribunal has also taken into account the applicant’s circumstances; that he is an educated person from an area which includes the highly urban and diverse city of Shanghai with which he stated he was very familiar. The Tribunal took into account the applicant’s written submissions along with the applicant’s own assessment that he does not face harm from police or state authorities.

11. Taking into account the country information before it and the applicant’s personal circumstances, the Tribunal considers the chance the applicant will be subject to serious or significant harm from police, security services or the broader community, using hooliganism legislation, harassment, arbitrary detention, extortion or blackmail on the threat of revealing his sexuality, is remote. The Tribunal finds the applicant does not have a well-founded fear of persecution or a real risk of significant harm on this basis.

12. The Tribunal has also considered the applicant’s submissions in respect to discrimination against homosexuals in media law and limitations placed on forming LGBTI organisations by institutions such as universities. As discussed below, the Tribunal considers the information before it indicates that discriminatory legislation and conduct applies to the LGBTI community generally. However, considering the applicant’s individual circumstances, and having regard to the meaning of serious harm, for the purposes of s.91R(1)(b) and (2) or significant harm as defined in the Act, the Tribunal does not accept that the hardship the applicant may experience as a result of application of these policies in the community rise to the level of serious or significant harm for the applicant.

    Societal and employment discrimination

13. The Tribunal has considered the applicant’s submission in his Protection visa application that he faces psychological harm arising from societal and workforce discrimination because he is homosexual and because he is not married in line with conventional norms.

14. The Tribunal has accepted above that the applicant has been the subject of societal pressure in the form of ongoing and intense questioning about his personal life from family, friends, colleagues and his employer, who want to know why he is not married and to ensure that he does marry. The Tribunal has accepted above that the applicant attempted to conceal his sexuality in order to avoid feelings of shame and humiliation. The Tribunal has accepted that ongoing enquiry from colleagues and his employer placed the applicant under emotional pressure that led the applicant to feel anxious and to isolate himself from others. The Tribunal has accepted that his employer’s failure to promote the applicant and renew his contract was associated in part with his failure to conform to societal expectations to marry and to disclosure that he was homosexual. 

15. The Tribunal has taken into account the country information cited above, put to the applicant, that indicates segments of Chinese society are tolerant to homosexual men and that it is possible for openly gay men to live in the larger cities such as Beijing and Shanghai. The Tribunal has also taken into account a report, discussed with the applicant, that when the Civil Affairs in Changsha rejected a marriage application submitted by two men, the men took the matter to court and while they were not successful, the court consented to hear the case.[7]  In respect of this case, the Tribunal has noted the 2016 Human Rights Watch, suggesting that there has been a significant shift in public opinion:

    China did not remove homosexuality from its list of psychiatric disorders until 2001, and it has no laws against discrimination on the basis of sexual orientation. While a handful of legal cases have started to chip away at institutionalized discrimination, Sun’s experience underscores the state’s unwillingness to recognize the rights of lesbian, gay, bisexual and transgender (LGBT) people.

    Public opinion, on the other hand, suggests growing support for LGBT rights and equality. Hundreds of supporters turned out at the Changsha courthouse in support of Sun this week. Following the 2015 US Supreme Court decision legalizing same-sex marriage, many Chinese expressed their support on China’s version of Twitter. Chinese authorities’ recent decision to censor television programs depicting same-sex relationships triggered a wave of domestic criticism, and a 2013 video of a 90-year-old grandmother urging legalization of same-sex marriage for her gay grandson and others went viral. Parents of gays and lesbians have written to China’s National People’s Congress, demanding equal marriage rights for their children.

    Growing support for same-sex marriage in China shows that the government is well behind the curve on this issue. The government should act to ensure marriage equality for all Chinese rather than waiting for the courts to be bold enough to do the right thing.[8]

    [7] "Dispatches - Swimming against the LGBT Tide in China’ 2016, Human Rights Watch (HRW), 14 April <

16. At hearing, the Tribunal also discussed with the applicant indications from the internet that Nanjing appears to have an active gay social and dating scene and noted open advertising of bars and dating sites.[9] [10] [11] As discussed with the applicant, whilst in large cities such as Beijing and Shanghai, gay bars and clubs operate successfully and there is a variety of private organisations that offer support for the gay minority, smaller cities and rural areas are much slower to follow suit. [12]

    [9]

    [12] “China's gay group finds a public place to call home”, China Daily, 7 June 2010, CX244711; “Gay China from the inside-a Gay American living in China tells stories about the ‘Good Life’”, GlobalGayz.Com, February 2007, CX210489

17. In response and discussion, the applicant stated that while managing the verbal pressure on him to marry and deny his sexuality was embarrassing and stressful, he did not consider it was an “extreme level of psychological harm”. He told the Tribunal that he feels better about returning to China than he did previously now from a social perspective, because he believes society in China is slowly but steadily changing and catching up to Australia,. He stated that nowadays attitudes toward the LGBTI community are better especially in developed and wealthy areas of China.

18. Taking into account the country information before it, the Tribunal accepts there is still some level of discrimination against LGBTI persons in China and that there is not full acceptance of LGBTI people in Chinese society. The Tribunal accepts there may be negative social attitudes towards LGBTI people in China and the Tribunal accepts there may be some incidents of discrimination, such as verbal abuse, being asked to change appearance or being encouraged to change behaviour, and social pressure to marry and have children. The Tribunal accepts that societal discrimination of this kind may be difficult for the applicant to manage, and uncomfortable. However, the Tribunal considers that the pain or suffering, whether physical or psychological, that the applicant may experience as a result of societal discrimination will not rise to the level of serious harm as referred to in ss.5J(4)(b) and 91R(1)(b) or significant harm and as defined in the Act. The Tribunal does not accept the applicant has a real chance of serious harm or a real risk of significant harm on this basis.

19. The Tribunal has considered the claim in the applicant’s Protection visa application that he faces discrimination in employment as a homosexual and that there are not anti-discrimination provisions for LGBTI people at work under Chinese Labour Law. In this context, the Tribunal has accepted above that the applicant experienced discrimination in the workforce in China in the past when he did not conform to societal expectation and when it was known he was gay. In this consideration, the Tribunal accepts the DFAT assessment, put to the applicant, that while attitudinal changes have occurred in China, workplace discrimination based on sexual orientation and gender identity is common and is not prohibited by any law or national regulation.

1. On the information before it, the Tribunal accepts the applicant’s submission that most LGBTI individuals choose to conceal their sexual identity at work, and that according to a very recent research, "China Sexual Minorities Professional Environment Survey", over half of respondents say they have experienced harassment in the office, and workplace tolerance toward gay men at state-owned enterprises appears particularly low. The Tribunal notes the applicant indicated that he would seek to avoid discussing his personal circumstances with his work colleagues. However, as above, the Tribunal makes this assessment on the basis that the applicant will live openly as a homosexual in China and not conceal or supress his homosexuality. On this basis the Tribunal accepts the applicant’s sexuality may come to the attention of his employer.

2. On the basis of the applicant’s accepted past experiences and the country information before it, the Tribunal accepts the applicant may experience discrimination at work. The Tribunal has carefully considered whether any discrimination in employment he might suffer for reason of his sexuality, such as abuse and harassment would amount to serious or significant harm.  In this respect, the Tribunal notes that the applicant indicated to the Tribunal that he does not have concerns about employment on return to China, that as well as there being changes in Chinese attitudes, he has a greater level of confidence and skill than previously and he indicated belief in himself that he would find employment, that he is confident he “could do anything he likes career wise.”  

3. Taking account of all the country information before it, the Tribunal accepts that the applicant may experience discrimination in employment arising from his homosexuality. However, on the information before it, the Tribunal does not consider discrimination, such as failure to obtain promotion, comes within the meaning of serious harm for the purposes of s.91R(1)(b) and (2), specifically, significant economic hardship that threatens the person’s capacity to subsist; or denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist. The Tribunal does not accept the applicant has a real chance of serious harm for this reason.

4. Having considered the country information before and the applicant’s accepted circumstances, the Tribunal does not accept the discrimination the applicant faces in the workplace rises to the level of significant harm. The Tribunal does not accept there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk he will suffer significant harm on this basis.

5. Further, the Tribunal does not accept that the discrimination in employment and societal discrimination cumulatively experienced, amount to serious harm or significant harm as defined. The Tribunal does not accept the applicant has a real chance of serious harm or a real risk of significant harm on this basis.

   Pressure from family on his return to China

6. The Tribunal has considered the applicant’s claim at hearing that his greatest fear on return to China is the psychological pressure he will experience from his parents and relatives who will persist in seeking to persuade him to deny his sexuality and to marry. The Tribunal considered the applicant’s written claim that the pressure was detrimental to his mental health, and that he felt anxious and depressed and had [developed symptoms of health problems].

7. As put to the applicant, in respect to societal discrimination and familial pressure, in December 2016, DFAT reported that LGBTI individuals experience societal discrimination and pressure to conform to family expectations. There is no anti-discrimination legislation and common forms of discrimination are verbal abuse, being asked to change appearance or being encouraged to change behaviour, and social pressure to marry and have children.[13] As discussed with the applicant, homosexuals in China remain under heavy social pressure to stay in the closet, the failure to meet traditional expectations of marriage and family, core structures in Chinese society, being repeatedly reported as foremost concerns.[14]

   [13] ‘DFAT Thematic Report: Fujian Province, People’s Republic of China’, Department of Foreign Affairs and Trade, 16 December 2016, CIS38A80123116, p.11, para 3.24

   [14] “Being gay in China: Your stories”, British Broadcasting Corporation (BBC), 26 January 2010, CX239106; “Public tolerance needed for Chinese gays to tackle AIDS”, China Human Rights,

8. The Tribunal notes the applicant indicated that he would seek to avoid discussing his personal circumstances with his large extended family who see it as their responsibility to try to persuade him to marry. However, as above, the Tribunal makes this assessment on the basis that the applicant will live openly as a homosexual in China and not behave discreetly or conceal of supress his homosexuality. On this basis the Tribunal accepts the applicant’s sexuality will come to the attention of his parents and extended family.

9. The applicant stated that he maintains his close relationship with his mother by curtailing any conversation that takes them to his sexuality and talk of a future married life. The applicant told the Tribunal that nowadays his mother doesn’t talk about his sexuality or marriage, but asks other family members to remind him. The applicant told the Tribunal that he still gets messages from cousins asking when he is getting married, even after not speaking with them for many years. The applicant stated that he is very close to some of his cousins on his mother’s side and he thinks they all know that he is gay and that they are more open that his parents, but they continue to ask him about marriage all the same. His cousins on his father’s side, a very big group of people, also put a lot of pressure on him. He believes they know he is gay but they are much older than he is and support his parents.

10. The applicant told the Tribunal that he does not often have verbal/skype contact with his parents; they message each other which the applicant believes is preferable because speaking or seeing each other is too emotional.  They talk about neutral things, the time difference, weather, in the past mentioned study, and imply marriage by saying he needs someone to care for him. The Tribunal accepts that the applicant’s family continue to place verbal pressure on him to marry and that they do not accept his homosexuality.

11. The Tribunal has considered the applicant’s personal circumstances and the country information cited above and discussed with the applicant. The Tribunal acknowledges the depth of the difficulties and sadness in the applicant’s relationship with his parents and family arising from his homosexuality. The Tribunal acknowledges the applicant’s observation that, while society is increasingly tolerant, his family pressures remain. He stated that if he has to leave Australia, he probably will not tell his parents; that if they find out where he is there, which he expects they would, he hopes they will accept him. On the evidence of the applicant, however, the Tribunal accepts the applicant’s view that more likely they will not have changed much and will continue trying to arrange or trick him into dates for with potential marriage partners. He expects he would still visit his parents but he would try not to be involved in occasions where he may be put in a difficult position.

12. The Tribunal appreciated the applicant’s openness in his assessment that while he would be sad about pressure coming back into his life, he has been preparing himself psychologically and feels psychologically ready to return. The applicant stated that he does not claim he will suffer physical harm or violence or extreme levels of psychological harm.

13. Taking into account the applicant’s circumstances and the country information before it, the Tribunal accepts that the applicant faces strong verbal and emotional pressure from his parents and family on return to China. The Tribunal acknowledges this will be psychologically distressing. However, the Tribunal does not consider this treatment amounts to serious harm for the purposes of s.91R(1)(b) and (2) of the Act. The Tribunal does not accept the applicant has a real chance of serious harm for this reason. Further, the Tribunal does not accept the treatment the applicant faces at the hands of his parents and family rises to the level of significant harm as defined at s.36(2) of the Act. The Tribunal does not accept the applicant has real risk of significant harm.

14. The Tribunal has considered that in some circumstances, comparatively lesser forms of harm could have a more detrimental impact on the victim than on others as a result of personal attributes or circumstances. The Tribunal noted that in his written statement in 2014, the applicant stated he became anxious and depressed and [developed symptoms of health problems]. At hearing, the applicant indicated that he has [a medical condition], and he attributes this to the anxiety he experienced as a homosexual person in China. The applicant indicated that he is otherwise in sound mental and physical health. He stated he gets nervous when he thinks of return but tries to stay optimistic. The Tribunal has considered the applicant’s physical and psychological health and does not accept the applicant’s physical or psychological health is such as to elevate the verbal and emotional pressure he may experience from his family or any other discriminatory conduct accepted above, to the level of serious harm for the purposes of s.91R(1)(b) and (2) of the Act, or significant harm as defined at s.36(2) of the Act. The Tribunal does not accept the applicant has a real chance of serious harm or a real risk of significant harm on return to China on this basis.

    Returning as an asylum seeker

15. The Tribunal accepts the applicant’s evidence at hearing that his passport expired in [month] 2017 and he has applied to the Chinese Consulate to renew it. The Tribunal accepts the applicant’s statement that when he completed forms to renew his passport he indicated that he had applied for a Protection visa in Australia. The applicant indicated to Consulate officials that he was not seeking political asylum and he told the Tribunal that he did not anticipate any difficulty in renewal or his passport or entry to China in the future.

16. The Tribunal has considered whether the applicant has a real chance of serious harm or real risk of significant harm on return to China because the Chinese authorities will be aware he has made he has applied for a Protection visa. As discussed with the applicant, the applicant’s Protection visa application is confidential and no information about his visa application is provided to the Chinese authorities. The Tribunal also notes that the applicant departed China legally and on the evidence before it there is nothing in the applicant’s conduct in Australia to bring him to the adverse attention of the Chinese authorities. 

17. On the evidence before it, the Tribunal considers that the Chinese authorities will be aware that the applicant has applied to remain in Australia as he has advised them of this. However, the Tribunal does not accept the authorities will be aware of the basis of his application. As discussed with the applicant at hearing, the Tribunal’s research revealed no reports about the treatment of returning asylum seekers. On the material before it and on the basis of the applicant’s own assessment, the Tribunal finds that the applicant does not face a real chance of serious harm now or in the foreseeable future as a person who has disclosed in connection with application for a passport that he applied for a Protection visa in Australia. For the same reasons, the Tribunal does not accept there is a real risk the applicant he will suffer significant harm on return to China on this basis. 

    Other considerations: the applicant’s relationship in Australia

18. As above, the applicant has been in a relationship in Australia for a number of years, and the Tribunal acknowledges the emotional hardship the applicant would face on separation from his boyfriend. The Tribunal also acknowledges that after living in Australia since 2010, the applicant has developed strong ties to Australia. However, the Tribunal finds that these matters have no Convention nexus and do not involved systematic and discriminatory conduct. On this basis, the Tribunal finds the applicant’s fear of persecution is not well-founded. Having regard to the definition of significant harm in s.36(2) of the Act, the Tribunal finds that the hardship the applicant will experience as a result of separation from his boyfriend does not constitute significant harm as defined.

19. Having regard to all the circumstances and findings above, both individually and cumulatively, the Tribunal finds that the applicant does not have a real chance of serious harm now or in the foreseeable future for the reasons he has claimed, or for any other reason. The Tribunal finds that the applicant does not have a well-founded fear of persecution for a Convention reason.

20. Having regard to all the circumstances and findings above, both individually and cumulatively, the Tribunal finds that there are not substantial grounds for believing that there is a real risk that the applicant will suffer significant harm upon being removed from Australia to China.

    CONCLUSION

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

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

23. 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

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

    Amanda Paxton
    Member

    
    
    

7 December 2009, CX237450;