1602764 (Refugee)

1602764 (Refugee) [2019] AATA 212 (8 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1602764
COUNTRY OF REFERENCE:                  China
MEMBER:Denise Connolly
DATE:8 February 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 08 February 2019 at 10:15am

CATCHWORDS
REFUGEE – protection visa – China – religion – Roman Catholic – unregistered church – imputed political opinion – petition regarding circumstances of father’s death – violation of family planning laws – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 12 February 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, born [date], Longtian Town, Fuqing City, Fujian Province, a citizen of China, applied for the visa on 2 March 2015. He arrived in Australia as the holder of a [Visitor] visa [in] January 2015.
The delegate refused to grant the visa on the basis that she was not satisfied the applicant is a person in respect of whom Australia has protection obligations.
There is a s.438 certificate on the Department’s file certifying that folios 58 and 82 should not be disclosed because it would be contrary to the public interest as the folios contain “information relating to an internal working document and business affairs”. Folio 58 contains information about the information used to establish the applicant’s identity, which is not in dispute. Folio 82 is a template entitled Disclosure decision checklist which records there are no s.437, or s.438(1)(a) or (b) documents on the file. There is nothing adverse in the information contained in those documents. Having considered the certificate and the material the Tribunal finds the reasons given do not properly identify a basis for public interest immunity. There is no suggestion that the documents or their content would harm the nation or public interest by disclosure of the material. The Tribunal finds the certificate is not valid. As the Tribunal found the certificate is invalid and the documents referred to do not contain any adverse information it was unnecessary to advise the applicant of its existence.
CLAIMS AND EVIDENCE
Evidence provided to the Department
When making the visa application the applicant provided the following information. He was born in Longtian Town, Fuqing City, Fujian Province, China. He is a citizen of China. He does not have the right to reside, temporarily or permanently, in any other country. His religion is Roman Catholic. He married in April 2002. He and his wife have 2 children, a daughter born [date] and a son born [date]. His wife, children, parents and brother reside in Longtian Town. He provided a copy of his Chinese passport issued [in] 2014 obtained through normal procedures. Prior to travelling to Australia he worked as [an occupation].
In response to questions regarding his reasons for claiming protection, the applicant provided a written statement, prepared in English, in which he states in summary as follows. He is a member of the Roman Underground Catholic Church in China. He applied for the visa because of the persecution of his religion. In May 1996 he was introduced to his wife and became aware that she was a devout Catholic. In order to marry her he learned about Catholicism and decided to join the church. He was baptised, confirmed and married in the church [in] 1997. [In] August 1998 he and his wife attended the mass. They were advised the town officials were coming. The priest left safely and the attendees started to leave. He and his wife left by bicycle. His wife fell off the bicycle and miscarried. She was 3 months’ pregnant. Fearing he would falter in his religious faith, his wife reminded him to put everything in the hands of God. God then graced the applicant and his wife with a daughter and a son. Soon after the son’s birth, to escape punishment because of violation of Family Planning laws, they went to [Town 1], Dianbai County, Guangdong Province where he worked for a [company]. The local cadres from his hometown received a tipoff that they had violated Family Planning laws and asked his parents to pressure them to return home for sterilisation surgery. The cadres visited the family home smashing things. In [2001] they detained his mother for 2 months. In November 2001 his wife was sterilised against her will. His wife stayed at home with his parents and he returned to Guangdong Province. His parents accepted Roman Catholicism through his wife’s evangelisation and inspiration.
In May 2006 his wife and son went to Guangdong to live with him. His wife tried to live a life according to Christ’s teachings. In August 2012 a typhoon destroyed a local resident’s fishing boat and not long after the local resident’s wife was diagnosed with lung cancer. He and his wife raised funds for him and taught them about God’s salvation. He and his wife set up a small gathering point in their home. [In] 2013 during a gathering, while they were studying the Bible police officers entered and confiscated the study catechism, bibles, rosary beads and saints pictures. They were taken to the police station. They were separated for interrogation. He did not argue with the police because he feared that his wife would be put in jail. He was beaten savagely. They made him sign documents and he was detained until 3 days later when a work colleague paid the fine. After his release he was fired. They then returned to their home town where he worked in a [specified place].
From 2013 several Catholic families in his village were pooling money to fund a gathering place. Construction permission was obtained under the name of one of the church members. His father contributed money and labour. [In] February 2014 officials leading more than 20 demolition workers arrived. The church members were asked to demolish the building. [In] April 2014 a group started to smash up the building. Three senior church members including the applicant’s father confronted the group. His father was injured and taken to hospital. His father was in a coma and after 5 days in intensive care he passed away [in] April 2014. After the funeral the applicant approach the authorities about his father’s case. However the police had not done anything. He approached the authority several times to lodge complaints.
[In] July 2014 the applicant attended a rosary prayer gathering at a church member’s home. The police attended at 10pm and said they were holding an illegal Catholic underground church gathering. All [attendees] were taken to the Longtian Public Security sub-Bureau. All religious articles were confiscated. He was interrogated and locked up. Two police officers questioned him and slapped him on the face. The members were distributed among several cells for detention. They were not allowed to talk and denied water. The next day he was taken to the [police] officer who warned him not to attend underground Catholic activities anymore. He was told that there was information that his father was one of the important members who participated in the construction of the underground church gathering place. He was warned not to lodge any further petitions regarding his father’s death. After that incident he feared further religious persecution. With his friends’ help he was able to get a visa to Australia. He departed Australia from Shanghai airport [in] January 2015. He is currently attending [a named church] in [Suburb 1]. He fears that if he returns to China he will be subjected to religious persecution by the Chinese government. He will never attend the official church controlled by the Catholic Patriotic Association because the organisation is incompatible with the basic doctrine of the universal Catholic Church.
The applicant provided a letter dated [February] 2016 from [Mr A] stating he has known the applicant for one year and that the applicant is an active participant and contributor to the [local Catholic] community. He finds the applicant is dependable, friendly and always willing to help. He is of the view he is a Roman Catholic.
The applicant provided a letter from [Father B], chaplain pastor, [of the local Catholic community] dated 7 February 2016 in which he states the applicant regularly attends [mass] every Sunday at [named church] and has since January 2015. He acknowledges that the timing of the applicant’s first attendance at [named church] was given to [Father B] by the applicant.
The applicant provided identity documents for his family members and his marriage certificate. He also provided a copy of his residence ID card confirming his address in China which is different to the last address he provided in the visa application.
The applicant attended an interview with a Departmental officer on 10 February 2016. The Tribunal has listened to the recording of the interview. Information given by the applicant to the delegate is summarised in the delegate’s decision record, which was provided to the Tribunal by the applicant.
The delegate records that during the interview the applicant claimed that there is no freedom of religion in China and his father’s death was associated with his religious practice. He claimed he was arrested in Fujian due to his religious belief. Police warned him not to pursue with the authorities his complaint about his father’s death. He claimed that the police warned him that “it will be hell” for him if he returns to China. He claimed that because he is Roman Catholic he will be tortured. The delegate put to the applicant that there are millions of practising Roman Catholics in China and asked why he would be singled out. He indicated it was because he attended the underground Church in China and the government banned this church.
The delegate asked the applicant about his fears of returning to China. The applicant claimed he has been arrested twice and in 1999 he and his pregnant wife had to escape on a bike. The applicant initially told the delegate that he was first arrested in [2011] because they were trying to pass on teachings and the authorities thought they were a cult. When the delegate questioned whether he was arrested in [2011], the applicant acknowledged he got the date wrong and corrected his evidence. He claimed the first arrest was in [2013]. He claimed he was arrested a second time [in] 2014. He was praying for a church leader who had been imprisoned. The police took the [church members] to the police station. The applicant was interrogated through the night. The police beat him. The applicant stated that before 1998 he was not arrested but there was conflict. His father was arrested and thrown to the ground. He then passed away. The applicant stated he fears returning to China because the officer warned him not to pursue his complaint with government.
The delegate asked the applicant whether he could attend the registered Catholic church in China. The applicant stated he could not because the official church cannot co-exist with the Roman Catholic Church. He stated the official church does not believe in the same things. The official church believes in the party. Its leader is recognised by government. The delegate raised with the applicant the Pope’s open letter in which it is indicated the Pope regards both factions in China to be part of a single Catholic church. The applicant stated that the Pope recognises the church but not the bishops. The delegate raised with the applicant that the country information indicates that there is no difference with respect to doctrinal matters and that it is difficult to distinguish the practices and rituals.
Having considered the applicant’s claims and evidence, the delegate was not satisfied the applicant is a witness of truth. She formed the view he either embellished or fabricated his claims. She was not satisfied he is a committed adherent of the Catholic faith. She noted the applicant had not provided any documentary evidence or conclusive information to substantiate that he would be harmed if he returned to China. She noted that he was able to leave China legally with no detrimental repercussions and formed the view this indicates he is not a person of adverse interest to the authorities. She formed the view that the applicant manufactured his claims to achieve a migration outcome. She did not accept that the applicant had any fear of returning to China. She did not accept his claims were credible. Accordingly she was not satisfied that there is a real chance of persecution. She was not satisfied the applicant is a refugee as defined in the Act. Nor was she satisfied there are 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 chance that the applicant will suffer significant harm.
Evidence provided to the Tribunal
The applicant provided to the Tribunal letters from [Mr C] and [Mr D] stating the applicant attends the Catholic church in Australia and that he is part of the [local Catholic community]. [Mr D] also claims to know the applicant from Guangdong Province and that he and his wife were devout Catholics.
The applicant attended a hearing on 30 January 2019. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant confirmed that he used his true identity when travelling to Australia and making the visa application. He confirmed that his passport is genuine and it was obtained through the proper authorities.
The Tribunal asked the applicant about his circumstances in China before he came to Australia. He indicated that he lived at an address in [Village 1], Longtian County, Fuqing City, Fujian Province. He confirmed that this was the address he lived at before he came to Australia and it is his wife’s current address. The Tribunal noted that this address is different to that provided in his visa application. The applicant indicated that the address provided in the visa application is his father’s. He indicated he, his wife and children had been living with his father but it was too crowded so 10 years ago he started renting at the current address at [Village 1]. He confirmed that the address provided in the visa application is that of his parents.
The Tribunal asked the applicant about his occupation in China before he came to Australia. He indicated that he was working for a [company]. He worked there up until he travelled to Australia.
The Tribunal asked the applicant about his visa for Australia. He understood he was granted a business visa. He had indicated in the visa application that he was [an occupation]. He acknowledged that he did not hold that position in the company; the agent had just used that title to enable him to get a visa.
The Tribunal asked the applicant about his relationship with his wife. He indicated he met her in May 1996 through a friend. She lived in a nearby county. He did not know her before he met her. They legally married [in] April 2004. Their daughter was born on [date] and their son was born on [date]. The Tribunal asked the applicant why he and his wife had not legally married before the children were born. He indicated that because of the law he could not marry before a certain age or he would be fined. He confirmed that he was born in [year]. The Tribunal noted that this meant that he married when he was [age] years old. It questioned why he could not marry before [age] as it was not aware of any country information indicating that a person could not marry without being fined before the [that age]. The applicant then indicated that while he did not get a marriage certificate until 2004 he had married in the church before then. He said it was different in his hometown. In rural areas people have children first and they get married later when the children are about [age]. The Tribunal questioned whether this was in fact the case as it was not aware of such a practice. The applicant indicated this was the practice in his hometown.
The applicant confirmed that he wrote the written submission provided with his visa application. The Tribunal noted that in the applicant’s written submission he had referred to the basic doctrine of the universal Catholic Church. The Tribunal asked the applicant to describe that doctrine. The applicant did not understand the Tribunal’s question. The Tribunal noted that it was reading from the applicant’s own written submission and asked the applicant again to describe the basic doctrine of the universal Catholic Church. At this point the representative raised with the Tribunal his concern that the interpreter had misinterpreted important words. The interpreter acknowledged that she was having difficulty interpreting the language regarding the Catholic Church. She advised that she did not think she would be able to further assist the Tribunal. The Tribunal decided to adjourn the hearing in order to arrange for a suitable interpreter.
The hearing was reconvened on 4 February 2019 with the assistance of an interpreter who identifies as having the appropriate skills to interpret for the Tribunal in matters where Catholicism is relevant. There were no concerns raised by the representative or the applicant during the hearing regarding the interpretation.
The Tribunal raised with the applicant that he had indicated at the earlier hearing that he married in 2004 and that he delayed his marriage because of his age but that he then amended his evidence and indicated that in his hometown people had children first and then married. The Tribunal noted the country information indicates that the legal age for marriage in China is 22. It asked the applicant why he did not marry legally earlier. The applicant clarified the evidence he gave to the Tribunal at the first hearing. He acknowledged that he got the year wrong and stated that he married in 2002. However according to his understanding he was already married in 1997 in the church. He indicated that he and his wife could not marry in 1998 because she was not yet 22. She was born in [year]. The Tribunal asked why they did not marry in [year] when she turned 22. He indicated his daughter was born in [year] and they had another child in [year]. The children were born too close together for the applicant and his wife to marry in [year]. In his eyes he and his wife were already married in the Catholic Church. The Tribunal asked why they married legally if he believed he was genuinely married in the Catholic Church in 1997. The applicant said that in [2001] his mother was arrested and detained because he had violated family planning policy. The Tribunal asked why the authorities detained his mother, rather than the applicant. He indicated it was because he was not at home. The authorities went to the family home and destroyed it and then detained his mother. He had left the family home and was in another province to avoid the authorities. The applicant indicated that he and his wife returned to Longtian Town and his wife was sterilised. The Tribunal asked the applicant about the date of the sterilisation. He could only remember that his wife was sterilised in November 2001. He could not remember the date because it happened a long time ago.

The Tribunal noted that when asked where the applicant lived prior to travelling to Australia, the applicant gave a different address to that recorded in the visa application. The Tribunal asked the applicant to explain this inconsistency. The applicant indicated that, when he left China for Australia, his mother became sick so his wife returned to his parents’ family home to care for her. Before he left China he was living in the [Village 1]. He recorded his birth place in the visa application, an address in [Village 2], Longtian Town.
The Tribunal asked the applicant about his schooling in China. He indicated that he finished high school in about [year] when he was [age or age] years old. The Tribunal asked about the written statement which was provided with the visa application, written in English. The applicant indicated that he had written the original statement in Chinese, by himself. He did not have a copy of the original statement. The Tribunal noted that the statement was well written and appear to have been written by somebody who was reasonably well educated. The applicant denied receiving any help in the preparation of a written statement.
The Tribunal asked the applicant about his children’s current circumstances. The applicant indicated his daughter, aged [age] finished high school in [year]. Initially he told the Tribunal that she was still living in China, then he admitted that that was not true and that she now resides in Australia as the holder of a student visa. His son, aged [age], is also residing in Australia as the holder of a student visa. The applicant did not know what material had been provided with their student visa applications. He could not remember the name of the agent who assisted in his children’s student visa applications. He and his wife paid the costs of the student visa applications and the study. His wife has income from her [employment] and he has sent about [amount]RMB to China. The applicant does not think he is his son’s guardian; a guardian for his son has been organised by the agent. He indicated that his wife paid for the process in China.
The Tribunal asked the applicant about his first exposure to Catholicism. He indicated that he found out about Catholicism after he met his wife in May 1996. She had been practising Roman Catholicism since childhood. Her parents were practising Roman Catholics.
The Tribunal asked the applicant about his Catholic practice in China. He indicated that he belonged to the underground Catholic Church. Every day they read the rosary and Bible. He stated there is no religious freedom in China. The Tribunal asked the applicant if that was his only evidence to give in relation to his Catholic practice in China. The applicant indicated that he also worshipped the ‘coporati’ (the body of Christ), and the cross. The Tribunal asked the applicant about his Bishops while practising in China. Initially he indicated that there was no Bishop in Fujian. After some thought, he indicated that Shoucheng Huang is in the archdiocese of Mingdong in Fuzhou. He mentioned Shudao Wang but said he passed away in 2010.
The Tribunal asked the applicant where he received the Eucharist while in China. He indicated it was first in the house of an underground church member in [District 1]. Before he came to Australia he was receiving it in Longtian Town. The Tribunal asked the applicant how many people attended his underground church in Longtian Town. He indicated that because they did not have a fixed place it would vary. After some thought he indicated that normally there were a few dozen.
The Tribunal asked the applicant’s when his parents commenced their Catholic practice. He indicated they started practising in 2006 because he and his wife were living with them and they were under their influence. His mother was the first to convert.
The Tribunal asked the applicant what was recorded as the cause of death on his father’s death certificate. The applicant retold the events leading up to his father’s death as stated in the written submission he provided with the visa application. However he did not state the cause of death. The Tribunal explained that it wanted him to answer the question he was asked and asked again what was recorded as the cause of death on his father’s death certificate. The applicant stated that his father was injured when the back of his head hit rock. He gave the Tribunal the dates that his father was injured and the date of death. The Tribunal noted that he had not answered the question about the recorded cause of death on his father’s death certificate. The applicant repeated that his father was injured when the back of his head hit rock.
The Tribunal asked who was present at his father’s death. The applicant indicated that he, his wife and his [brother] were present. He repeated that he died 4 days after he had been admitted to hospital. He was otherwise in good health. When asked how he was transported to the hospital, the applicant indicated that the village sent him to the hospital and he went to hospital later. The Tribunal asked again how his father was transported to the hospital. He indicated that the spectators sent him to the hospital. The Tribunal explained that he had not answered the question and asked again how his father was transported to the hospital. The Tribunal suggested for example it may have been by taxi or ambulance. The applicant then indicated it was by taxi.
The Tribunal noted that it appeared the applicant was retelling the evidence as it had been recorded in his written statement and not answering the Tribunal’s specific question. It noted that this may raise concerns for the Tribunal about whether he had merely learned his written statement and whether his claims are genuine. The applicant denied having learned his written statement and asserted that all of his evidence is true.
The Tribunal noted from the delegate’s decision record that the applicant had not pursued with the authorities, since coming to Australia, his complaint regarding his father’s death. The Tribunal asked the applicant why he would not pursue this matter from the safety of Australia, given he has had the support of the church community here. The applicant indicated that since he has been in Australia he has not pursued this matter because the Catholic belief is to love one’s persecutor. He indicated however that he could not stay in China and not pursue the matter. He prayed for the Lord’s guidance as to whether or not he should stay in China.
The Tribunal asked the applicant whether he was concerned about any harm his wife and children might suffer when departed China. He claimed he was worried, very worried, and he prayed constantly. The Tribunal asked the applicant whether his wife and children continued to practise Roman Catholicism in China. He confirmed that his wife has continued to practise Catholicism. It asked about her circumstances. He stated that she is employed and able to earn an income to cover her costs of living. Anything extra goes to his mother. He stated that his children were also able to practise Catholicism in China and that they were able to obtain valid passports and depart China without any difficulty with the authorities. He acknowledged that despite practising underground Roman Catholicism in China his wife and children were not harmed by the authorities. He claimed however that this was because the Lord has different plans for different people.
The Tribunal noted that in the applicant’s written submission provided with his visa application he indicated that the Catholic Patriotic Association in China was incompatible with the basic doctrine of the universal Catholic Church. The Tribunal asked the applicant about the similarities between the Catholic Patriotic Association and Roman Catholicism. The applicant said they both believe in Jesus Christ. However the Roman Catholics believe the message came from the Apostles. The Tribunal asked what else they share. The applicant said they all say they are Catholic but they have different shepherds. He repeated that the Catholic Patriotic Association also believes in Jesus Christ. The Tribunal noted that, despite being given opportunities to identify what the Catholic Patriotic Association and the Roman Catholic Church having common the applicant had not noted that they share rituals and a fundamental aspect of Catholicism, the sacraments. The Tribunal indicated that it may form the view that it would be reasonable to expect that the applicant would have known that the Catholic Patriotic Association celebrates the same sacraments. The applicant said he did not know because he is not a member of that church. The Tribunal noted however that the applicant in his written submission provided with his visa application had stated that the Catholic Patriotic Association is incompatible with the basic doctrine of the Roman Catholic Church, suggesting that does know about the Catholic Patriotic Association.
The Tribunal asked the applicant about his current religious practice. He said that he goes to [a named church] on a regular basis. [Father B] is still at the church. He indicated the latest letter dated January 2019 was from [Father B]. The Tribunal noted that in fact that letter was not from [Father B] but from [Mr C], the President of the [local Catholic community]. The only letter from [Father B] was dated [February] 2016. The Tribunal asked if [Father B] knows the applicant. The applicant stated that there are hundreds of people in his church and [Father B] does not have the energy to know them all. However he thought that [Father B] would recognise him even though he would not know his name.
The Tribunal asked the applicant about the sacrament of reconciliation. The applicant was able to describe that it involves penance and stated reconciliation is one of the sacraments set up by the Lord. He stated a person who has committed a sin after baptism seeks to be reconciled with the Lord.
The Tribunal asked the applicant if he is known to the authorities in China. He indicated he is still a Chinese citizen. The Tribunal asked if he is of adverse interest to the authorities. He indicated that the local government knows him. He indicated that he was detained once, [in] 2014. The Tribunal noted that in his written statement he claimed to have been detained twice. The applicant then indicated that he did not say he had been detained once. He indicated that he had been arrested another time. He indicated that he is still known by the authorities in China because, when he was arrested the second time, the [police] put conditions to him. He believes that, because of his religious belief, he was arrested and when he was released he was warned not to attend the underground church.
The Tribunal asked the applicant where he was when he was arrested the second time. The applicant described a prayer meeting held in [specified location] for [church officials]. He did not mention [the church official] previously when asked about bishops because he was a bishop in Shanghai. The Tribunal asked the applicant about the interrogation he has claimed to have endured after the arrest [in] 2014. He indicated that he was interrogated for about one hour. The Tribunal asked about the questions he was asked during that interrogation. He indicated they asked him not to attend the underground church. The Tribunal asked about any other questions he was asked during the interrogation. The applicant indicated that they beat him. The Tribunal raised with the applicant its concern that his scant evidence on this issue might suggest that he had not been interrogated for an hour as he has claimed.
The Tribunal asked why the authorities would still be interested in the applicant if he returns to China. The applicant indicated that if he is here they are not interested in him. However if he goes back it would be hard to say. It is the issue of his religious belief. The Tribunal noted his evidence that his wife and children have been able to practise Roman Catholicism since he departed China. It noted his wife has been able to secure employment and earn a living and his children have been able to obtain valid passports and depart China. The Tribunal explained that this might suggest that the authorities are not concerned about their Roman Catholic practice. The applicant indicated that the Lord will arrange things for him and, when he is here, with the love of the Lord, he is able to forgive those who hurt his father. He said however in China things may be different. The Tribunal indicated it may not accept that the applicant would pursue his complaint with the authorities regarding his father’s death given the time that has passed and his lack of action on the issue.
The Tribunal asked the applicant why he fears returning to China. He claimed that he does fear returning to China because of his religion. While his wife and children have been okay practising the religion, the Lord has a different plan for each person.
The Tribunal discussed with the applicant country information indicating that in October 2018 2 Catholic bishops from China were allowed to attend a Vatican meeting. It referred to the recent written agreement between the churches.[1] The Tribunal indicated that this country information suggests that the relationship between the Vatican and Beijing is improving. The applicant was aware that the Chinese priests had signed a temporary pact with the Vatican. The Tribunal also referred to the country information set out in the delegate’s decision record. The applicant acknowledged that while the doctrines of the Catholic Patriotic Association and the Roman Catholic Church may be the same, the priests are not the same. The Roman Catholic Church is inherited from the Apostles whereas the Chinese Catholic Church was formed in 1957 to rid Catholics of their leadership. He acknowledged however that the relationship between the Chinese Catholic Church and the Vatican is improving.
[1] accessed 25 January 2019
The Tribunal noted the delegate records that the applicant was unaware of large Catholic buildings in [Fujian], and had formed the view that if the applicant had been Catholic in China he would have known about those buildings. The applicant indicated to the Tribunal that he did not know about those buildings because they are part of the Chinese Catholic Church and members of the underground church would not attend those buildings.
The Tribunal noted the country information indicates there are 12 million Catholics and 7 million underground Catholics practising in China, and about 1 million underground Catholic Church practitioners in Fujian. It asked why the authorities would single him out and why he would be harmed if his return to China. The applicant indicated that he had not said that he would be singled out. He believes the authorities harm underground Catholics because they have a different practice, and, although there has been agreement between Vatican and the Chinese Catholic Church, the church is still controlled by the government.
The Tribunal asked if the applicant had any other evidence to give with respect to his Catholic claims. He indicated that he just wants religious freedom.
The Tribunal asked the applicant if he had any other evidence to give regarding treatment by the authorities with respect to his father and the circumstances of his father’s death. The applicant indicated that in Australia he can love the persecutor. However he might have to do something about it if he returns to China. The Tribunal asked when he last had contact with the authorities regarding his father’s death. He indicated it was the second day after he was arrested [in] 2014. He acknowledged he has not had contact with the authorities with respect to this issue for 4½ years.
The Tribunal noted that the applicant has made claims in relation to breaches of family planning laws and forced sterilisation. It asked if he had any other evidence to give regarding those claims. He indicated he had nothing else to tell the Tribunal.
The Tribunal asked the applicant if he had any other evidence to give in relation to any of his claims. The applicant thanked the Lord for the opportunity to seek review. He had no other evidence to give.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169-70.

The Tribunal, in reaching its decision, has taken into account all of the evidence before it, as summarised above. It has also taken into account independent country sources about China, some relevant aspects of which are referred to in the findings below.
The Department of Foreign Affairs and Trade Country Report on China in December 2017 (DFAT Report) indicates that tolerance varies according to region, and that Catholic churches may gain trust of local authorities. The DFAT Report states:
Broadly speaking, religious practice in China is possible within state-sanctioned boundaries, as long as such practices do not challenge the interests or authority of the Chinese government. Restrictions on religious organisations vary widely according to local conditions, making it difficult to generalise. Those who practise their faith in unregistered institutions are more vulnerable to adverse official attention than those in registered institutions. Public expressions of faith are more vulnerable to adverse treatment than private worship (including in small groups). Religious practice that the government perceives as being connected to broader ethnic, political or security policies is at high risk of adverse official attention…. In the past, local authorities required priests to submit sermons and prayers in advance for approval and to regularly provide names and addresses of congregation members. DFAT understands this is no longer required in areas where the Catholic Church has built trust with local officials over time.
Catholics in China can experience officially-sanctioned harassment and discrimination where authorities regard their activities to be politically sensitive. Catholics in China face a low risk of societal discrimination.
In relation to Fujian Province specifically, tolerance of religious groups has been higher, as discussed in the Department of Foreign Affairs and Trade’s December 2016 report on Fujian. Sources indicate freedom of religion and treatment of unregistered house churches and associated individuals varies across China and within provinces according to the attitudes of local authorities.
The Tribunal notes freedom of religion does not exist in China in the way that it does in Australia. The DFAT Report states as follows:
In April 2017, President Xi Jinping called on CCP officials working in religious administration to reassert the Party’s ‘guiding’ role in religious affairs. Xi’s speech emphasised the need to ‘sinicise’ religion, to ensure religious rights did not impinge on CCP authority, and to enforce the prohibition on Party members to belong to any religion. In September 2017, the (government) State Council approved revisions to the 2005 Regulations on Religious Affairs, which devolve substantial powers and responsibility to local authorities to prevent illegal religious behaviour, including undue influence from foreign organisations. The new regulations, which come into force in February 2018, also impose large fines for organising illegal religious events or fundraising. They restrict religious education in schools, detailing procedures for approval and monitoring of religious training institutions. The regulations emphasise the need to prevent ‘extremism’, indicating they may target Uighur Muslims and Tibetan Buddhists; the devolution of enforcement to local government and Party authorities, however, means that unregistered Christian churches are also likely to be affected.
There are some reports of harassment, arrest, physical abuse, torture, detention and deaths in detention of members of unregistered churches. However a May 2018 article published by The Diplomat provides analysis of current negotiations between Beijing and the Holy See over the appointment of Catholic bishops[2]. The article indicates that ordination negotiations coincide with a reshuffle in China’s bureaucracy and policy changes aimed at consolidating religious issues and mitigating foreign religious influences that could potentially undermine the CCP’s rule. Accordingly the deal being discussed between China and the Vatican would allow Beijing to propose candidates for bishops in China and the Vatican to select candidates from the list presented by the Chinese. This, on paper, would appear to effectively give the Holy See veto power, but any bishop that is put forward by Beijing will almost certainly be thoroughly vetted to ensure that no matter who is selected their allegiance will be first and foremost to the CCP.
[2] The Diplomat, China could get a lot more than we think from a deal with the Vatican, 4 May 2018.
Nationality
The Tribunal finds that the applicant is a citizen of China, based on his Chinese passport and his oral evidence and will assess his claims on this basis. The Tribunal finds that he is outside his country of nationality. There is no evidence before the Tribunal to suggest that he has a right to enter and reside in any country other than his country of nationality.
Does the applicant have a well-founded fear of persecution?
The applicant has made several claims to fear persecution in China for the following reasons. He claims that he commenced practising as a Roman Catholic in May 1996. He claims he regularly practised his religion in an underground Catholic Church. He claims that he and his wife set up a church gathering in Guangdong. He claims that he has been arrested twice, beaten and interrogated because of his Catholic practice. He claims that his father was involved in funding and building a gathering place for the underground Catholic church and that in February 2014 church members were ordered to demolish the building. He claims that in April 2014 his father, a senior church member, was confronted by a group of demolition workers and his father was injured and taken to hospital. He claims his father was in a coma and after 4 days in intensive care his father passed away. He claims after the funeral he approached the authorities and lodge complaints because the police had done nothing about his father’s death. He claims that he and his wife violated family planning laws and as a consequence his wife was forcibly sterilised and his mother was detained for 2 months.
The applicant claims that since departing China he has been attending [a named church in Suburb 1] on a regular basis. He claims that while he has done nothing to petition the authorities in China regarding the circumstances of his father’s death, he may have to pursue the matter if he returns to China. He claims that as a Roman Catholic in China he will be tortured.
For the following reasons the Tribunal has serious concerns about the applicant’s credibility and the reliability of his evidence.
The applicant claims that in 2013 his father contributed money and labour to the building of a gathering place for underground Catholics. He claims that his father, along with other senior church members, was confronted by a group who were demolishing the building, and that his father was injured and taken to hospital. He claims his father hit his head and was in a coma in intensive care and passed away [in] April 2014. This was all information recorded in his written submission. However when the Tribunal asked the applicant about the cause of death recorded on his father’s death certificate he could not answer the question. Also when the Tribunal asked the applicant about the means by which his father was transported to the hospital, he could not answer the question until the Tribunal made suggestions as to whether it might have been by taxi or ambulance. The Tribunal has observed that the applicant was able to answer questions where the answers were included in his written statement provided to the Department with his visa application. However it has observed that if it asked questions where the answers were not included in that written statement his responses faltered. This raised a concern for the Tribunal as to whether this event genuinely occurred.
The Tribunal also notes the applicant’s written evidence that he approached the authorities several times to lodge complaints about the lack of progress on the part of police in relation to his father’s case. He has claimed that he was warned by the [police] officer not to lodge any further petitions regarding his father’s death. However when asked by the Tribunal whether he pursued this matter with the authorities once he arrived in Australia he acknowledged that he has made no further submissions regarding the matter. When asked why he would not pursue this matter from the safety of Australia the applicant indicated that since he has been in Australia he has not pursue the matter because the Catholic belief is to love one’s persecutor. He indicated however that he could not return to China and not pursue the matter. The Tribunal finds this explanation highly unpersuasive. It is not satisfied that the Catholic belief to love one’s persecutor would genuinely prevent him from pursuing justice in relation to the death of his father, if it was true that his father died in the circumstances described. The Tribunal has formed the view that the applicant has not pursued the matter with the Chinese authorities since arriving in Australia because the incident did not occur. It is not satisfied that the applicant’s father was a senior church member who had been involved in the building of a gathering place for underground church members. It does not accept that the applicant was warned by the [police] officer to not pursue his complaints regarding the circumstances in which his father died. It has formed the view that the applicant has fabricated this claim. It is not satisfied the applicant is known to the authorities because his father was a senior church member who was involved in funding and building a gathering place for underground Catholics.
On the basis of the letters of support from [Father B], [Mr C], [Mr A] and [Mr D] the Tribunal accepts that the applicant has been attending [a named church] in [Suburb 1]. It accepts he was able to describe the sacrament of reconciliation and acknowledges he is familiar with some aspects of Catholicism. He claims to have done this since he arrived in Australia in January 2015 however [Father B] clearly states that he relied on the applicant’s information as to when he commenced attending the church. The applicant acknowledged to the Tribunal that [Father B] probably does not know his name, despite the fact that the applicant claims to have attended the church now for 4 years. The Tribunal accepts that [the specified church] is attended by a large number of Chinese speaking churchgoers and that [Father B] is unlikely to be able to remember all of their names. It accepts that [Mr C] and [Mr D] believe the applicant is a genuine Catholic. However for the following reasons the Tribunal is not satisfied that the applicant was a practising Roman Catholic prior to coming to Australia and it is not satisfied the applicant is a genuine adherent of the Catholic faith.
In the applicant’s written statement provided with his visa application he claimed that he commenced his Catholic practice in May 1996 when he met his wife who is a devout Catholic. He claimed that she evangelised and persuaded his parents to become Catholics. He claimed that in [2013] while studying the Bible, 4 police officers rushed into the gathering, confiscated the study catechism, bibles, rosary beads and saints’ pictures. He claimed that he was taken to the police station interrogated and beaten. He also claimed that in [2014] while attending a rosary prayer gathering a group of police burst in and took [the] attendees to the Public Security sub--Bureau where he was interrogated overnight for about one hour. However when the Tribunal asked the applicant about the questions asked during the interrogation his only response was that they asked him not to attend the underground church. The Tribunal gave the applicant another opportunity to describe the questions asked during the interrogation and he merely indicated that they had beaten him. The Tribunal finds the applicant’s oral evidence regarding his claims to have been interrogated to be unpersuasive. It is of the view that if the applicant had been interrogated as described he would have remembered the questions asked. It notes that his written submission does not include the questions asked during that interrogation. The Tribunal has formed the view that the applicant was not able to recall the questions asked during the interrogation because the incident did not occur. It has formed the view that the applicant has manufactured this evidence.
The Tribunal also notes that when asked about his Catholic practice in China, the applicant merely indicated that he belonged to the underground Catholic Church and that they read the rosary and Bible. The Tribunal had to prompt the applicant for further evidence about his Catholic practice in China and he indicated that he also worshipped the body of Christ on the cross. His evidence about bishops during this period was vague and unpersuasive. The Tribunal accepts that the applicant was able to name two bishops however it notes that he initially indicated that there was no bishop in Fujian. It has formed the view his oral evidence on the bishops was vague and unpersuasive. The Tribunal takes into account [Mr D]’s assertions that the applicant and his wife were devout Catholics in China however it is not satisfied his evidence overcomes the Tribunal’s concerns about the applicant’s lack of evidence to support claims that he was a practising Roman Catholic for over 18 years before coming to Australia in 2015. Overall the Tribunal is of the view the applicant’s oral evidence describing his Catholic practice in China is vague, limited and not indicative of a person who practised as an underground Catholic in China for over 18 years.
The Tribunal gave the applicant opportunity to comment on the delegate’s concern that the applicant was not aware of 2 large Catholic buildings in Fujian [province]. It has taken into account his evidence that he was not aware of those buildings because they are part of the Catholic Patriotic Association. It has also considered his responses when asked about the similarities between the Catholic Patriotic Association and the Roman Catholic Church. While he could state generally that the Catholic Patriotic Association also believes in Jesus Christ he was unable to identify the aspects of Catholicism that are shared by both of those churches, in particular the rituals and sacraments. However the Tribunal notes in the applicant’s written submission he has indicated that he is aware of aspects of their Catholic Patriotic Association given he stated that the organisation remains incompatible to the basic doctrine of the universal Catholic Church. His written submission suggests he is familiar with the Catholic Patriotic Association because he concluded that it remained incompatible with the Roman Catholic Church. The Tribunal is of the view that if the applicant was genuinely practising Roman Catholicism in China for nearly 18 years and had consciously decided not to attend the registered Catholic Church he would have known more about their similarities. The Tribunal is also of the view the applicant was unable in his oral evidence to expand on the similarities and aspects shared by the 2 churches because, prior to coming to Australia, he was not practising Catholicism. Accordingly it is not satisfied he set up a gathering in Guangdong as claimed, or that he was warned by the [police] to stop practising in the underground Catholic church.
The Tribunal discussed with the applicant the country information about Roman Catholics in China. It noted that DFAT estimates that there are approximately 12 million Catholics in China, approximately 7 million who belong to “underground” Catholic Church not affiliated with the Catholic Patriotic Association.[3] It noted that recently two Chinese bishops attended a Vatican meeting and it appears the relationship between the Vatican and the Chinese Catholic Church has improved. The applicant acknowledged that the relationship between the two churches has improved but stated that the Chinese church is still controlled by the government. However aside from some assertions that the government controls the priests in the Chinese Catholic Church the Tribunal is not persuaded that the applicant has a strong Catholic belief and commitment to the underground Catholic Church in China.
[3] DFAT Thematic Report, Unregistered religious organizations and other groups in the People’s Republic of China, 3 March 2015.
Overall the Tribunal has formed the view that the applicant commenced attending a Catholic Church in Australia. The Tribunal has also formed the view that the applicant has been attending the Catholic Church in Australia for the purpose of strengthening his claim to be a refugee. However it is satisfied that this is not his only purpose for attending the church. It notes from his written references from fellow Catholic Chinese community members that he has formed friendships in the church community and it is of the view this may have also influenced his decision to attend [the specified church] in Australia. For this reason, the Tribunal is satisfied that the applicant has attended the Catholic Church in Australia both to strengthen his claims and for social support while away from his home country. Accordingly the Tribunal has not disregarded his attendance at the church. However because of concerns with his credibility and reasons discussed below, overall, the Tribunal is not satisfied the applicant is a genuine adherent of the Catholic faith.
The applicant has told the Tribunal he fears returning to China because of his religion. He claims he will be tortured because he is Roman Catholic. However the Tribunal notes his evidence that, despite his claim that his wife has evangelised in China and that his wife and children continued to practice as Roman Catholics since his departure in January 2015, they have not come to the adverse attention of the authorities. It notes his evidence that his wife has been able to secure employment and earn sufficient income to cover her living expenses. It notes his evidence that his children have been able to obtain valid passports and depart China without any difficulty. When asked why he would be treated differently to his wife and children, the applicant’s only explanation was that ‘the Lord has a different plan for each person’. The Tribunal finds this explanation highly unpersuasive. The Tribunal has found that it does not accept the applicant was a practising Roman Catholic before he left China. Accordingly it has serious doubt that his wife and children were practising Roman Catholics before and after he departed China. Nor is the Tribunal satisfied the applicant will attend an underground Catholic Church if he returns to China because it is not persuaded the applicant is a genuine adherent of the Catholic faith. It is of the view that his purposes for attending the church in Australia, to support his protection visa application and for friendship in the church community while he is away from his home country, will not be relevant in China. The Tribunal also notes that when asked at the hearing what would happen if he returned to China the applicant said it would be ‘hard to say’. The Tribunal is of the view this demonstrates the vague nature of his claimed fear. The Tribunal is not satisfied this response is reflective of a person who genuinely fears harm. The Tribunal is of the view the applicant has manufactured the claim to fear torture because of religion. It is not satisfied the applicant genuinely fears harm in China because of religion.
The applicant has stated that he and his wife had two children before they legally married in 2002. He has stated that in order to escape punishment because of family planning law violations he and his wife fled to Guangdong Province. He stated that his parents were asked by the authorities to pressure the applicant and his wife to return home for sterilisation surgery. He has stated that in [2001] his mother was detained for 2 months and in November 2001 his wife was forcibly sterilised. Given the country information on the family-planning laws and forced sterilisation in China, and the consistency of the applicant’s evidence on this issue, the Tribunal is prepared to accept that this may have occurred. However it notes that the applicant has no other claims to make regarding concerns he has had with the authorities in the past in relation to the violation of family planning laws. The Tribunal is not satisfied the applicant genuinely fears returning to China because of any past violation of family planning laws.

On the evidence before it, the Tribunal is not satisfied that the applicant believes he will be persecuted if he returns to China. It is not satisfied he has a well-founded fear of persecution for reason of his religion, or imputed political opinion based on his religion, and/or his relationship with his father, and/or petitioning the authorities regarding the circumstances of his father’s death, and/or for violating the family planning laws or for any other reason. It is not satisfied that there is a real chance that he would be persecuted for any one or all of the reasons claimed. It is not satisfied there is a real chance of persecution were he to return to China. Therefore, he does not meet the definition of refugee. Accordingly, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act
Does the applicant meet the complementary protection criteria?
The Tribunal must also consider whether the applicant meets the criteria for complementary protection.
A person meets the complementary protection criteria if there are 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.
‘Significant harm’ for these purposes is exhaustively defined in the Act. 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.
Section 36(2)(aa) of the Act refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
For reasons given above in relation to ‘real chance’, the Tribunal is not satisfied there is a real risk any of the kinds of significant harm set out in s.5(1). The Tribunal accepts that the applicant’s wife may have been forcibly sterilised in about November 2001. However there is no evidence to suggest that there is a real risk that the applicant may suffer significant harm in the future in relation to any past violation of the family planning laws. As discussed earlier, the Tribunal is not satisfied that the applicant has suffered significant harm in the past in relation to religion or imputed political opinion because of his relationship with his father, and/or petitioning the authorities regarding the circumstances of his father’s death. The Tribunal accepts that the authorities have restricted religious practice and Roman Catholicism in China in the past. However in the applicant’s case the Tribunal is not satisfied he will practice Roman Catholicism if removed from Australia to China. The Tribunal is not satisfied there is a real risk that he would suffer significant harm if removed from Australia to China.
The Tribunal is not satisfied therefore that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China there is a real risk of significant harm.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a). Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).]
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Denise Connolly
Member

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

[2019] AATA 212

8 February 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction

Standing