1602705 (Refugee)

[2017] AATA 2151

1602705 (Refugee) [2017] AATA 2151 (18 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1602705

COUNTRY OF REFERENCE:                  China

MEMBER:Peter Vlahos

DATE:18 July 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 18 July 2017 at 10:03am

CATCHWORDS

Refugee – Protection Visa – China – Religion – Muslim – Particular social group - Uyghur minority – Imputed political opinion - State persecution – Jus Sanguinis – Lack of state protection – Risk as a failed asylum seeker – Not a credible or reliable witness

LEGISLATION

Migration Act 1958, ss 5(1), 36, 65, 499
Migration Regulations 1994, r 1.12, Schedule 2

CASES

Guo v Minister for Immigration and Multicultural Affairs (1996) 64 FCR 151
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Kopalapillai v MIMA (1998) 86 FCR 547

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2.    The applicants, who claim to be citizens of China, applied for the visas [in] June 2014 and the delegate refused to grant the visas [in] February 2016.

3.    The applicants appeared before the Tribunal on 21 March 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sister, [Mrs A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Uyghur and English languages.

4.    The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

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.

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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

1. 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’).

2. ‘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.

3. 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

1. 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.

Member of the same family unit

1. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include the principal applicant’s son.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether Australia has protection obligations in respect of the applicants and for the reasons contained in this decision the Tribunal has concluded that the decision under review should be affirmed.

Country of Nationality and Identity

1. Based on copy of the passport of the primary applicant, which was provided to the Department of Immigration and Border Protection (the ‘Department’) and to the Administrative Appeals Tribunal  (the ‘Tribunal’) 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 Peoples’ Republic of China (‘China’) and assessed her claims against that country in relation to ss.36(2)(a) and 36(2)(aa) of the Migration Act (Cth, as amended). On the basis of the above-mentioned evidence, the Tribunal further accepts the applicant’s identity as claimed.

2. Applicant two was born in Australia and does not have a passport. A certified copy of his birth certificate was provided as evidence of his identity (see, Department’s file, folio 96). In the absence of information to the contrary, the Tribunal accepts applicant two’s identity as claimed. The Tribunal also accepts that the birth certificate serves as evidence of the familial relationship between the applicants, and the Tribunal accepts that applicant two is a member of the same family unit as the primary applicant.

3. 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.

Background

1. The primary applicant is a [age] year old married female from [County 1], Urumqi, Xinjiang Province, China. Her ethnicity is Uyghur and her religion is Muslim. She understands Uyghur and Chinese, as well as [language], having temporarily resided in [Country 1] on a [visa] prior to coming to Australia. She travelled between [Country 1] and China on several occasions. Her husband (her child’s father, applicant two) resides in Urumqi, Xinjiang province, China. The applicant first arrived in Australia [in] December 2013 on a [visa]. She departed Australia [in] December 2013. The applicant subsequently returned to Australia [in] May 2014 on a [visa] and has not departed Australia since that date. The applicant was pregnant with applicant two at the time of her arrival in Australia. Applicant two was subsequently born in Australia on [date] and is taken to have entered Australia on that date. He has not departed Australia since that date. The applicant submitted her application for Protection visa to the Department [in] June 2014.[1] [In] February 2016 the applicants were notified by the Department that their Protection visa had been refused.

The primary applicant’s claims for Protection

[1] Both applicants hold currently a Bridging (A) visa which attaches to their Protection visa application.

1. The primary applicant’s claims before the Tribunal can be summarised as follows:

   §  The applicant fears serious harm if forced to return to China because she is of Uighur ethnicity, Muslim religion, and she has been interrogated in the past by the Chinese authorities. They suspect her because she has studied abroad and believe she may have participated in ant-government activities.

   §  She completed her [degree] in 2009 at [University 1] in Urumqi, China. In March 2010 she went to [undertake further studies] in [University 2], [Country 1].

   § Uyghur language, culture and religious practice are restricted in China. She has personally experienced not being allowed to fast during Ramadan, and not being allowed to wear a headscarf after the death of a relative in [2007].

   §  In July 2009, she had finished all her exams and was waiting for her degree to be granted.

   §  [In] July 2009 she went to school for a few hours to pick up documents. The school was attacked by [a large number of] Chinese people, who targeted anyone who was Uyghur. She and others stayed inside the school for [a number of] days. She lost [a number of] of her classmates.

   §  In August 2009 she graduated with excellent results but was refused employment at every hospital in Urumqi because of her ethnicity.

   §  She applied for and was accepted [details of admission] at [University 2].

   §  She had difficulty obtaining a passport because she is Uyghur. Her father had to pay [large amount].

   §  In March 2010 she went to [Country 1] to begin her studies.

   §  In 2011 she returned to Urumqi to get married. She had met her husband in high school. He travelled to [Country 1], then [Country 2], for his studies after high school. The plan was they would remain in Urumqi for two months then return to school.

   §  One evening in September she was watching television with her husband and [a number of] policemen came and took her husband saying they need to ask him questions. He came back after [a number of] days. He had been tortured by police and had injuries all over his body. He said the police had interrogated him about what he was doing in [Country 1] and [Country 2] and whether he had attended any anti-government activities.

   §  He told them he had just been studying. As they couldn’t get anything from her husband, they released him but they took his passport. Until today he is under the control of the Chinese police. He could not go back to school in [Country 2] to finish his course and is living in Urumqi [work details].

   §  The applicant managed to return to [Country 1] and continue her studies.

   §  [In] December 2013 she came to Australia to visit her sister. She stayed in Australia for 10 days then went back to Urumqi. The next day at around lunch time [a number of] policemen came and took her from her home. They took her to the police station and questioned her because she had gone to Australia. They asked what she did in the 10 days in Australia, who she met, who she talked to and who was the leader of the Uyghur community.

   §  After a few hours they let her go but these things happened regularly when she was in Urumqi. She stayed one and half months then returned to [Country 1] because school holidays were finished.

   §  After she returned to [Country 1] she realised she was pregnant. She asked for sick leave and returned to Urumqi where she had family support.

   §  The day after she arrived home from [Country 1], [a number of] policemen came to the house [late] at night. They asked her to get out of bed and said she had to go with them. Her husband became angry and told them she was pregnant. They told him to be quiet and said it was not their problem.

   §  She was taken to a cold room without heating. They questioned her until the next morning.

   §  They did not listen when she said she was unwell. They wanted to know what she was doing travelling in and out of 3 countries. She told them everything but they asked the same questions over and over again.

   §  She was released after she experienced bleeding. Her husband was waiting outside and the applicant fainted when she saw him and woke up in hospital.

   §  The police came to the hospital [a number of] times. She stayed in hospital [a number of] days.

   §  After she was released from hospital she remained in fear. She considered moving to another part of China but nowhere is safe for a Uyghur person. Her ID card identifies her as Uyghur.

   §  She thought there was only one way to save her and her baby’s life and that was to come to Australia.

   §  She left [in] May 2014 and even at the airport she faced discrimination. She had to remove her clothes and shoes, was questioned and her belongings and passport were checked.

   §  After she arrived in Australia she called her husband and he told her the police had come after she had left and asked why she had gone to Australia.

   §  If she is forced to return she believes the authorities will detain her as they have done in the past. She fears she will disappear as has happened to many other Uyghurs after the July 2009 events.

The applicant confirmed for the Tribunal that these claims were correct and that she did not wish to vary, change or to add any new claims.

1. The applicant provided the following documents at the scheduled hearing:

   §Letter from [a medical clinic] dated 14 March 2017 signed by [a Doctor] attesting that the applicant was suffering depression and was being treated for this.

   §Letter dated 16 March 2017 from [name], [senior official] of [an Uyghur association] supporting the applicant’s refugee claim.

Primary Applicant’s background

1. The Tribunal was told that the applicant had lived for most of her life in [County 1], Urumqi, Xinjiang province (which she identified as Chinese Turkestan). She had completed all of her primary and secondary schooling in [County 1] County and also attended University in Urumqi, where she studied for a [degree]. Her studies at University were for duration of [a number] years and a further [number] years in [Country 1]. The applicant presented as an articulate and well educated woman. However, the Tribunal was told, that the applicant had not completed her studies in [Country 1] which required her to complete [additional] studies to qualify for her degree. The last time she was in [Country 1] was in January 2014.

2. As for the applicant’s remaining family members, the Tribunal was told that in Urumqi, live the applicant’s parents ([details of parents]) and one of her sisters and her husband. Her parents are [work details of parents]; while her sister works as [work details of sister]. Her husband is [work details of husband].

The events of July 2009 and their effects on the Applicant

1. According to the applicant, the events of July 2009 still resonate in her memory. The Tribunal was told that the applicant went on that fateful day to school to receive some [personal documents]. As she was within the building she noticed approximately (the applicant’s estimation) ‘[a number of] Chinese’ with ‘sticks’ and ‘knives’ in their hands running riot. This situation was full of dangers as (according to the applicant’s recollections) these Chinese rioters would single out any Uighur they could find and beat them. As the rioting progressed during the day, the applicant found herself barricaded within her school with others for ‘[a number of] days without food…’ and with no contact to the outside world.

2. After ‘[a number of] days’ according to the applicant things quietened down and the gates to her school were unlocked by the school’s administrators and she decided to return to her parents’ home. The chaos around was great because according to the applicant a journey on foot which took [duration] minutes, on the day after the riots, it took [approximately four times as long] for her to get to her parents’ home. After reaching her parents’ home, the applicant and her family remained indoors for a number of days because the situation around them was not at all clear nor was it safe for Uighurs.

3. The applicant also told the Tribunal that during the period of July 2009 events, there was no assistance or protection afforded to her family and to the Uighur population by the local authorities. In effect, people were left to their own abilities and know-how in order to secure themselves and their families from any type of attack.

Did the Applicant experience any discrimination from the authorities and in what forms.

1. Talking about her own life experiences, the applicant told of having faced discrimination from a very young age – while she was attending school. Indeed, the Tribunal was told, the applicant and her immediate circle of people (who were Uighurs and of the Muslim faith) were forbidden to wear upon their person ‘anything’ which identified their ‘Uighur culture’ and their belief in ‘Islam.’ The applicant went on to say, that Uighurs had no rights to attend ‘any religious events’ or to participate in anything that was ‘religious.’ Moreover, and as an example, (according to the applicant) Uighurs were prevented by the local Party authorities to ‘fast’ during the month of Ramadan. They were not allowed to ‘wear headscarfs’ when some ‘had died’ as a distinctive sign of ‘mourning.’ Even the applicant’s teach was ‘punished’ and not allowed to go to work ‘for a month’ (according to the applicant) because she had been too easy with applicant concerning the ‘rules’ to be observed concerning religion and had allowed the applicant transgress.

What discrimination did you experience while at University?

1. The applicant told the Tribunal that there was discrimination even at her University when she was a student there and that discrimination was very noticeable during the month of Ramadan. During this period the University authorities on instruction by the local Party officials would increase staff numbers in order to surveillance Uighur students – preventing them from fasting and observing the religious rites of their faith, Islam. This was the situation she faced while at University each year when the religious dates of significance to Muslims arrived. The applicant did not provide any other specific instances of discrimination.

2. Nevertheless, the applicant did tell the Tribunal that she had great hopes upon completing her [degree] of finding a good job and working as a [Occupation 1] in [the public sector]. However, this discrimination against Uighurs was very difficult to sideline. This was the situation that awaited the applicant before she completed her studies at University and the riots and unrest of July 2009 made it almost impossible for her to get suitable employment thereafter. As the Tribunal was told, “…before the July incident it was difficult to get employment…after July 2009 …life got difficult (emphasis placed on the word difficult by the applicant). She concluded her remarks by saying “…even if we get good results they [the Chinese state authorities] would turn us down…” when an employment application was made.

Education opportunity in [Country 1]

1. As a result of her difficulties in getting employment after graduating from [University 1] in Urumqi, the applicant made an application and was accepted to do further studies at [University 1]. Her decision to study overseas was taken in September 2009. The applicant was asked by the Tribunal did she experience any difficulties in going to [Country 1] from Urumqi. The applicant’s response was that she did experience difficulties in getting her passport issued by the Chinese authorities in Xinjiang. The Tribunal was told that

   “…the Chinese would get [their] passports in a few days ….but I tried so many offices and finally through a friend [I] found someone to get it (the passport)…after paying RMB [large amount]…”

2. The applicant also told the Tribunal that though she had delays and difficulties in getting her passport from the Chinese authorities in first instance to allow her to travel to [Country 1]; she did not face any difficulties on travelling to [Country 1] on two occasions thereafter. The Tribunal asked the applicant if she could provide an explanation why she was able as a Uighur to travel to [Country 1] without any questioning by the Chinese authorities. Her response was that “[I] do not know how to explain [this]…and then went on to say “…study purposes ….they were not of a concern…”

Applicant’s claim concerning her husband and the local authorities in Urumqi

1. The applicant confirmed for the Tribunal that she and her husband were married [in] 2011 and that they were former classmates at school. The applicant also told the Tribunal that her husband had gone to [Country 2] to study [course]. The Tribunal asked the applicant – what did her husband do while in [Country 2] studying to raise issues for him with the local authorities in Urumqi upon his return from [Country 2]. The applicant told the Tribunal that as ‘…far as [I] know…he [her husband] did not do anything…’ except attend to his studies. It was the applicant’s opinion that the authorities in Xinjiang were ‘…always concerned about people going and coming back from [Country 2].’ Then, the Tribunal enquired why did the applicant claim that her husband upon his return from China was detained and ‘tortured’ by the local authorities. The applicant’s explanation concerning her husband’s torture was from the outset ‘…yes, they did torture him…’ and she proceeded to tell the Tribunal that ‘…while my husband was in [Country 2] one of the authorities’ (in China) representatives in the US approached him in order to [undertake work for the government]. However, her husband refused and this caused his detention and torture. Indeed, his refusal according to the applicant made the local authorities in Urumqi refuse her husband’s attempts to return to [Country 2] in order to complete his studies. Her husband is currently [work details of husband].

Applicant’s trip to Australia in 2013 as [visa class] and the aftermath

1. The applicant confirmed the fact that she travelled to Australia in 2013 on a [visa]. The applicant has living in Australia her sister who is an Australian resident. The Tribunal asked the applicant did she experience any difficulties in receiving her visa to travel. Her response was that she did experience difficulties (but the applicant did not elaborate) from the local authorities but the visa was granted. The Tribunal asked the applicant, if she did experience ‘difficulties…’ as she claimed in getting her visa granted why did she not seek to claim protection in 2013 when in Australia. At first, the applicant told the Tribunal that she did not ‘do that’ then, because at that time both ‘…her husband and parents were overseas.’ Then, she told the Tribunal that she had ‘…never been questioned by the government and [I] thought it was ok to go back.’ Then, she continued to tell the Tribunal, that ‘…after …when I went back and faced interrogation [I] realised the hardship of going to Australia and safety of my baby…not safe in Urumqi.’

2. The Tribunal asked the applicant – why the interest of the authorities in her? The applicant’s response was that ‘… [I] believe because I stayed in [Country 1] and then in Australia (the authorities’ thinking) [they] get a particular mind set.’ Then the applicant continued by saying that she had ‘…seen other societies and seen freedom … [and] anyone with a clever mind and [who had] seen everything outside could influence other people…’ when they return to Urumqi. Then these returnees, the Tribunal was told, could ‘…possibly cause trouble…because of their experiences ….’

3. Again, the Tribunal asked the applicant in 2013 when she travelled overseas, she did so, without incident, why this was the case, when (according to the applicant) Uighurs were always an on-going concern for the Chinese authorities (especially those travelling to the West). The applicant’s response was to tell the Tribunal that ‘…I do not know what happened … [I] was a lucky person…’  

Applicant’s relationship with her husband

1. The Tribunal noted that the applicant had been in Australia for almost three years and in that time the Tribunal asked the applicant had she maintained an ongoing contact with her family and husband. Her response was ‘… no…’ The Tribunal then asked the applicant when the last time she had contact with her husband. The applicant’s response was to tell the Tribunal that ‘…her marriage was on the edge of breaking up and that I could not understand anything…’ Then the Tribunal was told that in October 2016 the applicant travelled to [Country 3] to see her husband. The applicant went on to say that

   ‘…I came to Australia when I was [nimber] months pregnant…now my son is [age] years old….

   It is the hardest thing (for the son) not to see his father….

   I cannot explain my situation to my husband over the telephone… [B]ecause everything is under the control of the government…

2. When pressed by the Tribunal to provide a reason for her travel to [Country 3] to see her husband, the applicant ended her explanation with “I could not explain the reason for the separation…” However, this meeting between the two lasted for twenty days according to the applicant.

3. The Tribunal questioned the applicant on how both parties travelled to [Country 3] and what travel documents were used. Her response was that she travelled to [Country 3] using her Chinese passport. Her husband the Tribunal was told travelled to [Country 3] with an organised tour group. The Tribunal enquired of the applicant whether her husband used his Chinese passport to travel to [Country 3]. Her response was that ‘… [He] did not have to have a passport in order to travel in tourist group…’ The Tribunal was also told that it was the responsibility of the Travel group to arrange her husband’s travel.

Issues with the husband

1. The Tribunal made reference to the applicant’s claim that she had matrimonial issues with her husband. The applicant again confirmed for the Tribunal that there were issues with her husband which also involved the future and welfare of the child of the marriage. Indeed, the applicant told the Tribunal that she was determined ‘…for the sake of the child…’ to arrive a set of ‘…resolutions’ following her meeting with her husband in [Country 3]. Her main concern is that both she and her husband have a child ‘…that is growing up without a father and there are hardships’ involved. This situation was not ‘…by choice…’ However, the applicant concluded her remarks by saying to the Tribunal that she had to have patience. No further explanation was provided concerning her matrimonial issues with her husband.

2. The Tribunal asked the applicant if her parents knew about the problem between her and her husband. Her response was ‘…I believe they are thinking what is best for us…and hopefully my husband will explain to them what is happening…’ Again, the Tribunal asked – had the applicant explained her situation to her parents directly? The applicant told the Tribunal ‘…I just sent message to them through my husband…’

3. The applicant was asked what is preventing you from returning to China and resolving your issues with your husband. The applicant’s response was that ‘…at the moment in China, the crackdown on the Uighurs is major…all policies’ are directed to ‘crackdown on the Uighurs in China.’ Then, the applicant told the Tribunal that ‘…first, I am a Uighur…second I am Muslim and I am in Australia and if I go back …I will be in danger…’

Country Information

1. The Tribunal discussed with the applicant at length the available country information concerning the situation in the city of Urumqi and the general situation in the applicant’s home province of Xinjiang. The Tribunal noted that according to this information, the Chinese government had 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. Moreover, these reports also state that Hans and Uighurs go about their daily lives in relative freedom albeit mostly living and working in separate areas of the city. The applicant’s response to this information was ‘…what the Chinese government’ ‘wished’ ‘others’ to know. Most of what happens in Urumqi and in Xinjiang is very carefully monitored and reported. Then, the Tribunal was told that Xinjiang (referred to by the applicant as ‘Turkmenistan’) had been ‘…occupied by the Chinese since 1949’ and had been subject to ‘complete’ ‘crackdowns’ especially imposed on ‘religion’ and ‘cultural freedom.’ In reality, the Chinese consider their people in the province ‘…super people…’ Even before the authorities used this expression ‘super people’ they (the Chinese authorities) ‘…were doing everything to control the Uighurs…’ The applicant also told the Tribunal that the Chinese have developed the concept of ‘Muslim terror’ to show the world that the Uighurs are ‘…not real Muslims…’ and that the Uighurs are ‘…just using religion as pretence to cause troubles…’ within the province. The Chinese are developing ‘new policies’ with the ‘aim’ to ‘get rid of the Uighur people’. As an example of these anti-Uighur policies (according to the applicant) ‘…young Uighur girls aged between 15-25 years are encouraged to go to the major cities of China in order to forcefully assimilate them…’ Also, these girls ‘…fall victim to drugs…’ and the authorities do not concern themselves with this.

2. These happenings were the cause of the applicant deciding to leave China for Australia the second time, the Tribunal was told. More so, the applicant’s action was spurred on because of a willingness to have her (then) unborn child live in a better country where he could live free of these problems and also follow his religion as he chose to do so without any interference from the authorities. Indeed, that was the freedom that the applicant wished for herself. Given that freedom here (in Australia) is without limitations, the applicant will gain the incentive to also contribute to Australia.

Have there been any threats to the applicant’s family in Urumqi?

1. The applicant told the Tribunal that her parents have been under constant harassment since she left Urumqi. The Tribunal asked the applicant – how did she know that the authorities were harassing her parents? Her response was that her husband told her when they met in [Country 3] in 2016. Although her parents have not suffered any detention, it was very difficult for the applicant to discuss issues with them over the telephone. As for her sister, the applicant told the Tribunal that she is [details of work] and is currently in hospital recovering from ‘[health] issues…’The Tribunal asked the applicant when her sister’s health deteriorated. Her response was ‘...two months ago and had been there before…’ Then, the Tribunal asked her how did she find this out and again her response was ‘…my husband told me in [Country 3]…’

Applicant’s Sister’s evidence to the Tribunal

1. The applicant’s sister identified herself to the Tribunal as [Mrs A]. She arrived in Australia in August 2009. She is married and has [a number of] children and is an Australian citizen. Her husband is a [occupation] and she is currently [details of occupation] but previously, and for a period of [a number of] years she worked for a [company].

2. According to the applicant’s sister, the separation between the applicant and her husband has extracted a severe toll on her and on her child which is growing up without his father being present in his life. The Tribunal asked the applicant’s sister to explain the actual circumstances which led the applicant (her sister) to leave her husband and family and to come to Australia. Her response was “…difficult…not being able to explain …personal issues…” and “…living apart for a long period of time…” Then the Tribunal was told ‘…of course she (the applicant) wants to raise her son with his father…’ The Tribunal asked the applicant’s sister does the applicant (her sister) contact the father of the child. Her response was “…not frequently…”

3. Then, the applicant’s sister told the Tribunal the following:

   “…if she [the applicant] could have a peaceful life…All she wants is to be safe …So many things have happened during her pregnancy …Life is not easy…but here (meaning ‘Australia’) her life is not in danger…”

Her sister could not really manage and this could affect her child, the Tribunal was told. Also, the applicant’s sister told the Tribunal that the applicant’s child frequently talks to his father on the telephone but this is not a regular occurrence. Indeed, the child, the Tribunal was told considers and calls the applicant’s sister’s husband ‘father’ and questions who (the child) is talking on the phone when he is talking with his actual father. Witnessing such events was heartbreaking to the applicant’s sister.

1. The Tribunal asked the applicant’s sister what would happen to her sister if she was to return to Urumqi. Her response was that it was difficult to say but dangerous for her and especially because she had remained outside China for such a long period of time. The situation in China is not better. It has never been better and getting more difficult than any can understand. The Chinese authorities are very strict with all Uighurs and closely monitor their every move and her sister will be subjected to this – if not more.

Submissions at the Tribunal by the applicant’s representative

1. The Tribunal received the following submission from the applicant’s registered migration agent, [name]. In summary, the applicant’s representative told the Tribunal that:

   §  The applicant did not accept the Department’s conclusions that the applicant did not suffer persecution while in China.

   §  The applicant should be treated as a credible witness by the Tribunal when considering her claims and her responses to the Tribunal’s questions.

   §  In “Chinese-occupied Turkmenistan” there is a continuous crackdown by the authorities of the Uighur minority which is not reported.

   §  The Uighur people are constantly under state surveillance.

   §  The country information the Tribunal had accessed did not describe the actual truth of the daily situation which has to be dealt with by the persecuted Uighur people.

   §  “Chinese management” of the province’s economy is another way of persecution of the Uighur people and making sure they succumb to the authority of the Han Chinese and the rule imposed by the CCP in Beijing.

   §  The applicant was a victim of all of the above.

The applicant’s representative’s submission to the Tribunal was supported by the following copies of reports:

§  “They Can’t Send Me Back: Uygur Asylum Seekers in Europe” A Report by the Uyghur Human Rights Project, Washington, September 2011.

§  “CHINA : Alternative Report – Submission to the United Nation Committee against Torture (CAT)  In consideration of 56^th Session, 9 November 2015-9 December 2015, submitted by the World Uyghur Congress and the Uyghur Human Rights Project.

§  2014 Report on Human Rights Violations in East Turkestan, World Uyghur Congress.

§  2016 Report on Human Rights Violations & the Uyghur Community in East Turkestan (Events of 2015), April 2016, by World Uyghur Congress.

§  Research Turkey: “China Targets Uyghurs with Severe Human Rights Abuses.

§  “Uyghur rights in China” Open Democracy, Henryk Szadziewski.

§  “China’s scary lesson to the world: Censoring the internet works” Washington Post.

§  “Xinjiang suffers information blockade four years after demonstrations” article dated January 20, 2016.

§  “Uyghur Youth Severely Assaulted by Police in Xinjiang”, 27 March 2014 source:

The applicant’s representative provided a detailed exegesis to the Tribunal on the history of Chinese oppression which has occurred in that Chinese “occupied” province. The representative provided no further comments on his client’s claims nor provided any supplementary comments concerning his client’s responses to the Tribunal’s questioning.

Post-Hearing Submissions

1. The Tribunal allowed the applicant time to provide any further information to assist the Tribunal in its decision concerning the applicant’s application for review. The applicant provided the following documents:

   §  Photos of the applicant and others attending a public protest [details of protest] [in].

   §  Press Article, ‘Protesters slam China on human rights…’ Australian Associated Press dated [in] 2017.

Country Information – Uighurs in Xinjiang Province

1. In response to the applicant’s concerns about her possible return to China, and the issues she claimed awaited her concerning her ethnicity as Uighur and her religious faith as Muslim, the Tribunal discussed the following available country information:[2]

   [2] Department of Foreign Affairs and Trade, Country Report – China, DFAT, 3 March 2015

   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.

   3.2 At 92 per cent of the total Chinese population, the Han dominate the political, economic and social landscape in China. China’s largest ethnic minorities include the Zhuang (who number approximately 16 million), followed by the Hui, Manchu and Uighurs who each number over 10 million. Tibetans and Mongols each number approximately 6 million. According to China’s Constitution, the government upholds and develops a relationship of “equality, unity and mutual assistance” among all of China’s nationalities.[3]

   Ethnic Uighurs

   3.5 Uighurs are a Turkic people 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.[4]

   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.[5]

   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.[6]

   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.[7]

The Tribunal’s conclusions about the applicant’s claim

[3] Ibid at p. 8

[4] Ibid at p.8

[5] Ibid at p.9

[6] Ibid at p.9

[7] Ibid at p.10

Credibility

1. The Tribunal is aware of the importance of adopting a reasonable approach in finding of credibility. In Guo v Minister for Immigration and Multicultural Affairs (1996) 64 FCR 151, the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 194:

   ….care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted….

2. The Tribunal also accepts that “…if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt…” (see, The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at paragraph [196]). However, the Handbook states at (paragraph [204]):

   …The benefit of doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts…

3. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced with asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

4. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might be possibly true (see MIMA v Rajalingam (1999) 93 FCR 220).

5. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that that the particular assertion by an applicant has not been made out (see, Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).

FINDINGS

1. The Tribunal does not accept that the applicant is a credible witness for the following reasons:

   (a) The claim of discrimination because of the applicant’s ethnicity and religion in her education

2. From the outset the Tribunal accepts that the applicant is a Uighur, a believer in the faith, known as Islam and 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 her 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 which she was treated differently from other attendees at University, the fact remains that she was able to complete her education and was able subsequently to travel overseas for further studies in [Country 1].

   (b) Discrimination of the applicant in finding employment in her chosen [field]

3. So far as the applicant’s employment prospects are concerned, the Tribunal noted that the applicant claimed that because of the incidents of July 2009, it was impossible for her to gain suitable employment in home province of Xingjian. The Tribunal considers the applicant’s claim an embellishment of the truth than a form of discrimination. Moreover, the applicant is fluent in Mandarin, and as noted by the Austrian Centre for Country of Origin and Asylum Research and Documentation (ACCORD), China: Situation of Uyghurs: COI Compilation, April 2016, quotes at page 90 from per on the issue of unemployment in Xinjiang written by the convicted Uighur scholar IIham Tohti, in which he said:

   “Xinjiang’s ethnic minority university students are keener to study foreign languages than students at top-tier universities such as Peking University and Tsinghua University, because these students feel that their only hope lies in finding work in international trade, tourism, or overseas. Even the privileged classes are not immune to employment difficulties: one child of a high-ranking Xinjiang Uighur government official graduated from a prestigious mainland university and spent a year searching fruitlessly for work. It was only after securing a personal letter of introduction from Wang Lequan [then Communist Party Secretary of Xinjiang] that the young graduate was finally able to secure a job.”   

   The Tribunal accepts that the applicant had graduated with excellent results but was refused employment at every hospital in Urumqi because of her ethnicity but the Tribunal does not accept that she this leads to the conclusion that there is a real chance that she will experience discrimination that is so serious, or so detrimental in its effect, as to amount to persecution for the purposes of the Refugees Convention. Indeed, even if she is unable to obtain employment [in her field], there is nothing to say in the information referred to by the Tribunal that she could not obtain other employment making use of her education and her language skills.

   (c)  Discrimination by the Chinese authorities of the applicant’s husband and his detention with China

4. The applicant in her evidence before the Tribunal identified certain incidents involving her husband who is currently in China with the local authorities. According to the applicant, her husband who, while he was studying in [Country 2] was asked by the Chinese authorities [undertake work for the government] but he refused. The Tribunal was also told that upon his return to China, he was ‘tortured’, his passport seized by the Chinese authorities (in 2011) and indefinitely detained within Xinjiang and not permitted to travel. The Tribunal considers the applicant’s claim an embellishment of the truth than a claim that has substance in the evidence before the Tribunal. Therefore, the Tribunal does not find as credible the applicant’s claim that the authorities had seized her husband’s passport because according to the applicant’s evidence her husband met with her in [Country 3] (in 2016) nor does the Tribunal find as credible the applicant’s claim that the applicant’s husband had his movements restricted to within Xinjiang province because between [October] to [November] 2016, he met with the applicant in [Country 3].

   (d) Applicant’s claims concerning her political involvement while in Australia

5. The applicant in her post-hearing submissions tendered photographs of herself and others attending recent protests ([in] 2017) protesting [8][details of protest]. Also, the applicant provided a letter of support from the [senior official] of [an Uyghur association] noting that the applicant made a ‘[contribution]’ to that organisation’s fundraising efforts and was described as an ‘active member of our community in [Australia]’.[9]  The applicant also submitted a statutory declaration[10] dated [in] April 2016. The applicant makes it clear in her statutory declaration that she is not a political activist and the Tribunal does not accept on this basis the applicant’s evidence that, if she returns to China now or in the reasonably foreseeable future, there is a real chance that she will engage in political activities opposed to the Chinese Government nor that she will wish to do so because of her fear of being persecuted. Also, the Tribunal finds nothing in the evidence before it to suggest, nor was it submitted, that the applicant’s activities while in Australia had come to the adverse attention of the Chinese authorities and could  cause her problems if she was to return to China now or in the reasonably foreseeable future.

   (e) The applicant’s claim as a ‘failed Uighur asylum-seeker’

   [8] AAT File 1602705, folio 166

   [9] AAT File 1602705, folio 165

   [10] AAT File 1602705, folio 103

6. It is also noted by the Tribunal that the applicant’s representative in his submission made reference to the applicant’s fears of being persecuted for reasons of her ethnicity (Uighur), religion (Muslim), political opinion/imputed political opinion (anti-Chinese Government)and membership of the applicant of a particular social group ‘failed Uighur asylum-seekers’. The current DFAT country information does not deal with this issue. Indeed, in 2006, DFAT advised that failed Uighur applicant’s for asylum would be likely to be subject to official scrutiny, that they might be harassed, they might face difficulties in pursuing education or public sector employment opportunities, they might be interviewed and they might be put in administrative detention.[11] More recently, the US State Department has said in its Country Reports on Human Rights Practices for 2016 in relation to China[12]:

   “The government pressured foreign countries to repatriate or deny visas to Uighurs who had left the country, and repatriated Uighurs faced the risk of imprisonment upon return. There were accusations that government pressure led to India’s cancellation of exiled Uighur leader Dolkun Isa’s visa to attend a conference there, according to Reuters. Some Uighurs who were forcibly repatriated disappeared after arrival. The international community was still unable independently to confirm the welfare of the 109 Uighurs forcibly repatriated from Thailand in July 2015. Uighurs residing in Canada indicated that Xinjiang authorities detained and interrogated them during visits to the region, pressuring them to spy on other Uighurs living abroad for Chinese authorities.”

The Tribunal does not accept the claim that the applicant would be adversely dealt with by the Chinese authorities as a failed Uighur asylum seeker. It has been noted by the Tribunal that the applicant in her evidence stated that she was not “a political activist”[13] therefore the Tribunal does not accept as credible the applicant’s claim that she faces a real chance of persecution or would come under the adverse attention of the Chinese authorities in the reasonably foreseeable future if she was to return to Xinjiang province, China as a failed Uighur asylum seeker.

(f)  The applicant’s fears that her son would face discrimination, harm and be denied the benefits of Chinese citizenship if he had to return to China

[11] DFAT, ‘CIS Request No.8597: China: Treatment of Uighurs on return to China, 29 June 2006, CX156339

[12] US Department of State, Country Reports on Human Rights Practices for 2016 in relation to China, Section 6,    National/Racial/Ethnic Minorities.

[13] AAT file 1602705, folio 103.

1. The applicant also claimed that if she was to return with her young son to China, he would be exposed to ‘day to day discrimination’ and the ‘denial of household registration’ and the Chinese state of benefits attached to citizens of China.

2. According to information available to the Tribunal, Chinese nationality law operates mainly on the basis of jus sanguinis (“the right of blood’).[14] The law states that a person born abroad is a Chinese national through jus sanguinis if the person is born outside China with at least one parent who has Chinese nationality, and the parent (or parents) with Chinese nationality has not yet settled in a foreign country (Article 5). The term “settled” is understood to mean that the Chinese national parent has permanent residency in another country. Article 5 also states that a person born outside China to parent(s) with Chinese nationality, does not have Chinese nationality if a foreign nationality is acquired at birth and one of the Chinese national parents (or both) have gained that country’s permanent residency.

   [14] >

   Moreover, the National Household Registration System[15] also known as hukou serves as the de facto citizenship for Chinese nationals residing in China.[16] Despite Article 33 of the Constitution declaring all nationals to be citizens of China, there are still a number of Chinese nationals without hukou, rendering them nationals without citizenship. In particular, under the Nationality Law, any person born to a Chinese national parent is a Chinese national at birth pursuant to Article 4.[17] However due to strict enforcement of the One-Child Policy (until recently) in China, some children, whose births were in violation of the local birth-planning policies, did not have their births registered despite Article 7 of the Household Registration Ordinance requiring the birth of a child to be registered within one month from the date of birth. The Tribunal notes that applicant provided to the Department a copy of a [Birth Certificate] which records that her son was born in [Australia] and records both the applicant and her husband as the child’s parents. Therefore the Tribunal finds that the applicant’s son though born in Australia is a son of Chinese nationals and therefore is a Chinese national born abroad having acquired his Chinese nationality jus sanguinis. The Tribunal also finds that the child’s parents are the applicant and her husband and that the child is a member of the same family unit as his mother. Finally as discussed above, the Tribunal does not accept the claim made by the applicant that her son would face discrimination and denied his household registration if he was to return to China in the reasonably foreseeable future with his mother, the applicant. Indeed, on the evidence provided to the Tribunal at the hearing and subsequently, there is nothing to suggest that the applicant’s son would not be given his rights and privileges as would be expected to attach to any Chinese national born overseas with both parents having their Chinese nationality uninterrupted.  

   [15]

   [16] "中华人民共和国户口登记条例". National People's Congress website. 2000-12-10. Retrieved 2015-06-13.

   [17] "像影子一样活：超生"黑户"的18岁人生". Southern Weekly. 2011-06-17. Retrieved 2015-06-13.

1. Having regard to the problems with the applicant’s evidence which the Tribunal has identified above, the Tribunal does not accept that the applicant is a credible and reliable witness. The Tribunal gives greater weight to the problems which it has identified with the applicant’s evidence than it does to the copies of documents and photos she produced in corroboration of her evidence in relation to political activism and letters of support which identified her as Uighur political activist. The Tribunal does not accept that the applicant has been singled out by the local authorities in China for her political activities, beliefs or ethnicity while in China or overseas. The Tribunal does accept that the applicant’s husband had been detained, questioned or under house arrest within Xinjiang. Also, the Tribunal does not accept that the applicant fled China for Australia because of any fear due to her ethnicity as Uighur or because of her Muslim faith. The Tribunal does not accept that there is a real chance that the applicant will be persecuted for reasons of her ethnicity or her religious belief if she returns to China now or in the reasonably foreseeable future.

2. In the material provided to the Tribunal prior to the hearing the applicant referred to attacks and serious deprivation of fundamental freedoms, movement and  lack of social advancement on Uighurs in Xinjiang because of their distinct ethnicity and religious beliefs. The Tribunal accepts the advice of the Department of Foreign Affairs and Trade that, 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. Moreover, these reports also state that Hans and Uighurs go about their daily lives “in relative freedom” albeit “mostly living and working in separate areas of the city”. The Tribunal finds that the applicant does not face a real chance of serious harm in Xinjiang province, China from the police, intelligence or judiciary, other authorities or anyone else for reasons of her ethnicity or her religious beliefs, or any other reasons considered both individually and cumulatively.

3. Having considered all the accepted claims and the Tribunal’s adverse credibility findings both individually and cumulatively, the Tribunal is not satisfied on the material before it that the applicant faces a real chance of serious harm for any Convention reason, now and into the reasonably foreseeable future, if she was to return to Urumqi city or to Xinjiang province more generally.

4. Accordingly the applicant does not have a well-founded fear of persecution and does not satisfy s.36(2)(a).

5. The ‘real risk’ test for the Act’s complementary protection provisions is the same as the real chance test. The Tribunal notes that it made real chance of serious harm findings based on the applicant’s ethnicity and religion and considerable adverse findings on credibility about the applicant’s claims regarding past harm and harassment incidents by the local Chinese authorities. Accordingly, the Tribunal finds there are no substantial reasons based on the applicant’s claims, considered individually as well as cumulatively, the applicant, as a necessary and foreseeable consequence of being removed from Australia to her country of China, will face a real risk of significant harm of any kind based on her ethnicity and religion and incidents of past harm, cumulatively considered. The Tribunal does not accept the discriminatory treatment throughout her education and in her efforts to find employment of which the applicant complained, even when viewed cumulatively, amounted to significant harm as defined in s.36(2A). Although the Tribunal accepts that there is a low level of discrimination against the Uighurs in public and private employment, the Tribunal does not accept on the evidence before it that there is a real risk that the applicant will face discrimination in employment for reasons of her ethnicity and religion as a ‘Muslim’ that amounts to ‘significant harm’ as defined.

6. In the material provided to the Tribunal prior to the hearing the applicant referred to attacks on Uighurs in Xinjiang and accusations that the Chinese authorities do not condemn these attacks. The Tribunal accepts the advice of the Department of Foreign Affairs and Trade that, the Chinese government had 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. Moreover, these reports also state that Hans and Uighurs go about their daily lives in relative freedom albeit mostly living and working in separate areas of the city. The Tribunal finds that the applicant does not face a real risk of significant harm in Xinjiang province, China from the police, intelligence or judiciary, other authorities or anyone else for reasons of her ethnicity or her religious beliefs, or any other reasons.

7. In considering the totality of the above matters in assessing the applicant’s claims, for complementary protection, the Tribunal makes this summary finding: Based on all available information and evidence, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Xinjiang province, China, there is a real risk of significant harm, including the applicant will suffer harm if she is arbitrarily deprived of her life; the death penalty will be carried out on he; she will be subjected to torture; she will be subjected to cruel or inhuman treatment or punishment; or she will be subjected to degrading treatment or punishment as required by s.36(2)(aa).

8. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

DECISION

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

Peter Vlahos
Member