1606089 (Refugee)

[2019] AATA 3498

1606089 (Refugee) [2019] AATA 3498 (14 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1606089

COUNTRY OF REFERENCE:                  China

MEMBER:Denise Connolly

DATE:14 March 2019

PLACE OF DECISION:  Sydney

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

CATCHWORDS
REFUGEE – protection visa – China – religion – Christian activity in China and Australia – remained in Australia unlawfully – genuineness – credibility – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65

Migration Regulations 1994 (Cth), Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 18 April 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, citizens of China, applied for the visas on 17 June 2015.  The delegate refused to grant the visas on the basis that she was not satisfied the applicants are persons in respect of whom Australia has protection obligations.  

3. There is a s.438 certificate on the Department’s file certifying that folios 171 and 188 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 171 concerns the information used to establish the applicant’s identity, which is not in dispute. Folio 188 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.

   Evidence provided to the Department

4. The applicants have provided to the Tribunal a copy of the delegate’s decision record. The Tribunal has considered it and other information on the Department’s file.  The applicants, who claim to be citizens of China, applied for the visas on 17 June 2015. The first named applicant (the applicant), was born on [date], [Town], Fuqing City, Fujian Province. The second named applicant was born on [date] in Australia. The applicant arrived in Australia as the holder of a student visa [in] May 2008. Her student visa ceased [in] March 2011.  She indicated in her visa application that she was in a de facto relationship with Mr [A] which commenced [in] May 2008.  She claims to be a Catholic.  She claims to have left China because her parents were caught and arrested by the Chinese authorities, and she was ridiculed, verbally and physically abused by her neighbours and fellow students. She did not report this to police because she feared they would send her to jail.  She believes she will face the same treatment as her parents.  She claims she could not move in China because of the Hukou system. Her parents had tried to move to other villages but it was not successful. There is no freedom of religion in China. She will be harmed, mistreated and lose her freedom of religion if she returns to China. She claims she and her husband cannot afford the cost of relocation because of the Hukou system. She also claims they will not be able to find employment.

5. In a written statement the applicant made the following claims. Her parents were arrested ‘due to family planning’. As Catholics they did not promote contraception. Her mother was forcibly sterilised. Her father was persecuted because he was a preacher. When she was young her parents were arrested for distributing pamphlets to spread the good news. She was discriminated against, ridiculed and abused because of her family’s religion. Her passport application was obstructed but after help and prayers from the brothers and sisters of the church her passport was issued. She then left China for Australia, a country with religious freedom. Her parents moved a few times but ‘it was still useless’. She now attends the Catholic Church in [Suburb 1] and the second named applicant has been christened there. She is sorry that her husband stayed in Australia unlawfully and was hoping the situation in China with religious freedom would change.

6. The applicant’s then de facto husband Mr [A] was also a visa applicant, included in Part B of the visa application. In his Part C application Mr [A] stated he arrived in Australia as the holder of a student visa [in] August 2007. He was detained on 22 July 2010 until 6 August 2010. He was not making his own claims for protection.  He provided a written statement with the visa application in which he stated that he was arrested by compliance officers on 22 July 2010 and released after he made his own protection visa application. That application was refused on 20 August 2010 and the Refugee Review Tribunal affirmed the decision on 14 December 2010. He did not seek judicial review because he could not afford the fees.  He then remained in Australia unlawfully because he was afraid of returning to China and did not want to leave the applicant by herself in Australia. He claimed he and the applicant go to church together. 

7. The applicant’s representative wrote to the Department requesting the s.48 bar on Mr [A] be lifted and that he be included in the visa application. The representative asserted that the applicants are remorseful that they have remained in Australia unlawfully. He claimed that after the birth of the second named applicant the applicant and her husband prayed to God for guidance. They then decided to ‘surface and to apply for protection’ due to the applicant’s religious persecution in China. He stated the applicant is now Catholic and practising at [Suburb 1]. She was recently baptised and provided a certificate dated [date].

8. The applicant provided photos of her taken at [Church] and at [Cathedral].

9. The delegate has recorded in the decision record information given by the applicant in her interview on 8 April 2016. The Tribunal has listened to the recording and, while it is not a transcript, considers the information recorded reflects that given by the applicant at that interview. The applicant told the delegate her parents went to the ‘love church’, the Catholic church. She said her parents called it the ‘love church’.  It was held at the homes of brothers and sisters or at the church.  The applicant claimed her parents were arrested twice in 2006 once for handing out pamphlets about Jesus Christ. She did not know who produced the pamphlets. She attended with people her age on Friday nights, to pray and study the bible. She could not remember how long she attended the church. The delegate asked the applicant about her practice and the applicant was able to describe some basic beliefs.

10. The applicant claimed her parents were harmed a number of times by the Chinese authorities. When asked for more particulars, the applicant indicated her father was ‘occasionally arrested by the authorities for some reason’. She could not clarify how many times her parents were arrested. She claimed her father was persecuted from time to time because he was a preacher in the church. She claimed the last time they were targeted was in 2006 when they were arrested twice.  She could not confirm if they were arrested by police but the men were in uniform. She claimed the uniformed men smashed the iron outer door and knocked the inner door until they broke the door down. She claimed they rushed in and tied her parents’ hands and told her parents ‘you went to an illegal gathering and now I am going to arrest you’.  She claimed her parents were imprisoned for a few months on each occasion.  She did not know where or when her parents were imprisoned.

11. The delegate accepted that the applicant’s parents are Catholic but she did not accept that they were arrested and imprisoned as she found the applicant’s account of her parents’ arrest was generalised and lacked specific detail regarding location and dates.

12. The delegate has also recorded that the applicant claimed she was discriminated against by fellow students and neighbours. When at school students threw things at her and said ‘you believe in Jesus Christ…you believe in the devil. You are the devil and you have come to harm us’. Neighbours would point at her family and say they were the devil. She fears her children will be abused as she was.

13. The delegate accepted that the applicant may practise Catholicism in China but, having taken into account country information set out in the decision record, she did not accept the applicant would be of interest to the authorities. She accepted the applicant may have been verbally abused at school but she did not accept this was serious or significant harm. Having considered country information on the hukou system she did not accept the applicant would not be able to relocate in China. She was not satisfied the applicant would have been able to depart China if she was of adverse interest to the authorities because of her religious beliefs.

    Evidence to the Tribunal

14. The applicant provided to the Tribunal various documents prior to the hearing including the following:

    a.a copy of Certificate of Release for her younger [sibling] stating that he was arrested and detained on 4 July 2018 for participating in group fighting (affray).

    b.Letters of support from church members, President of the Western Sydney Catholic Chinese Community and Father [B] of St [Church], both stating that the applicant and her family are members of the church community and have been attending the church since October 2008. Father [B] clarified that the ‘time of first coming to [Church] was given to me by [the applicant]’.

    c.The applicant’s baptism certificate dated [date] and her children’s Baptism and Birth certificates.

    d.The applicant’s marriage certificate recording the applicant married on [date] at [Church].

    e.Photos of the applicants in church settings and of the wedding.

15. The applicant provided a written statement in which she states her mother told her [on social media] that her younger [sibling] had been arrested for gathering people to fight during a protest about the demolition of a church. She claimed that the church had been built with government approval. He was detained and released after one month however the authorities will continue to investigate for one year. During that time her father happened to be away working in Guizhou. She claims her [sibling] lost his personal freedom because of his Catholic faith. She does not want to return to China because she will lose her religious freedom.

16. The applicant attended a hearing on 5 March 2019 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the English and Mandarin languages. The Tribunal also took evidence from the applicant’s husband, Mr [A]. The applicant’s representative also attended the hearing.

17. The applicant told the Tribunal that her parents now live in [Village], [Town], Fuqing City. She claimed they have lived there for about one or 2 years. They had previously lived in a different village but they had to move. One [Sibling 1] lives in [Location] where he works on a building site and returns home to see his parents from time to time. [Sibling 2] has always lived with her parents. He works in a flower shop. [Sibling 3] lives in [Town] with her husband. Her father works on a [workplace]. She does not know what he does on the [workplace]. Her mother has not worked for a long time. Her sister was a Catholic until she married then she became a Christian. This was clarified later that her sister became a Protestant Christian as opposed to other members of the family who are Roman Catholics.  The Tribunal asked the applicant about the difference between Catholics and Protestant Christians. She appeared to have some difficulty explaining the difference and suggested an analogy might be a mother giving birth to two different children.

18. The Tribunal noted that the applicant has claimed that it was not possible to relocate in China. However she indicated to the Tribunal that her parents had moved. She indicated that her parents only moved to a different village. They continue to live in the same [Town]. She claimed that both of her parents still practice their religion in the new village.

19. The Tribunal noted that the applicant indicated that her mother got her passport through connections. It asked about those connections. The applicant indicated that her mother obtained her passport with the help of brothers and sisters in the church. They found someone who had a relative in the passport office. She was not sure about the details because her parents applied for and obtained the passport. She confirmed however that her passport is valid and was obtained through the proper authorities. The Tribunal asked if her parents really were of adverse interest to the authorities and detained given that they were able to obtain her passport in April 2007. The applicant confirmed that she had no idea how they got her passport.  The Tribunal asked the applicant why she came to Australia. She indicated she studied language for several months. Her passport, student visa and study fees were paid for by her parents but they had borrowed the money.

20. The Tribunal asked the applicant to describe her parents’ religious practice in China. She indicated that they have been practising Catholics since she can remember. Her parents have attended Mass and family meetings. Initially she indicated it was every month and then she clarified that they did this weekly. They attended the family gatherings on Fridays and Mass on Sunday. The Tribunal asked if she also attended those gatherings and Mass. She indicated that the young people prayed and read the Bible. The Tribunal asked if she prayed and read the Bible. She told the Tribunal, to be honest, that she spent most of her time playing with her [siblings] as she was young and not interested. The Tribunal asked if her [siblings] were interested in religion. She indicated that the Tribunal would have to ask them.  The Tribunal asked who had conducted the Mass in China. She claimed that it was conducted by a priest. She could not remember his name.  The Tribunal asked the applicant how many times her parents had been approached by the authorities because of their religious practice. She indicated that as far as she knew, in 2006 her parents were arrested twice. The first arrest occurred during the spring festival when the police rushed in and accused her parents of holding an illegal gathering. The other time was at the end of 2006 because they had been passing out pamphlets.

21. The Tribunal noted that in the applicant’s claims to the Department she indicated that her parents had been harmed at other times and that her father was persecuted because he was a preacher in the church. It asked why she had not mentioned her father’s preaching in her evidence to the Tribunal about her parents’ religious practice. She indicated she thought the Tribunal was asking about their religious activities. The Tribunal asked why she had not mentioned her father’s activity of preaching. She indicated that her father was a preacher and was passing out pamphlets while he was preaching. She indicated that she called her mother prior to the hearing and asked when it was that they were arrested for handing out pamphlets. Her mother indicated it was at the end of 2006. She indicated she had to check with her mother because she has a bad memory.

22. The Tribunal asked the applicant what had happened to her parents after they were arrested. She indicated that they were detained for over 2 months at the end of 2006. They were detained in a detention centre in Fuqing. She has no idea which one. The first time they were arrested they were detained for 3 months.  The Tribunal raised its concern that the applicant’s parents appear to have been able to apply for and obtain the applicant’s valid passport from the authorities very soon after she claims that they had been detained. The Tribunal also noted that the applicant’s evidence indicates her parents were last arrested and detained in 2006 and appear to have not had concerns with the authorities in 2007 and 2008 before she left Australia. The Tribunal asked whether the applicant’s family no further problems with the authorities. She indicated that her parents did not tell her about any other problems. She said that they did not stop practising their religion.

23. The Tribunal asked the applicant why they obtained her passport. She indicated that her parents wanted her to escape persecution. The Tribunal noted that the applicant arrived in Australia in 2008 but she did not apply for protection until 2015. It explained that it may consider this long delay significant and it may cast doubt on her claim to have left China because her parents wanted her to escape persecution. The applicant claimed that initially when she came to Australia she did not know anything about protection. The Tribunal asked her when she found out about protection visas. She indicated it was in about 2010 or 2011 when she was talking to people at the church about protection. She claimed that when she first arrived in Australia she could not find a church holding the Mass in Chinese. Someone suggested she attend the church at [Suburb 1] so she started going to that church in about October 2008, 5 months after her arrival in Australia. The Tribunal asked when the applicant’s husband commenced attending the church at [Suburb 1]. She could not remember. She thought it might have been when she was pregnant in about 2012 or 2013.

24. The Tribunal noted from the visa application that the applicant moved to the same [Suburb 2] address where her husband lived when she arrived in Australia in May 2008. In the visa application she stated the de facto relationship commenced in May 2008.  It asked if the applicant knew her husband before she came to Australia. She indicated at the time she was taken to the accommodation he was already living there. The Tribunal asked the applicant when the de facto relationship commenced. She could not remember. She indicated she thought she was already a practising Catholic when they started the relationship. She was the holder of a student visa at the time and maybe he also held a visa at the time. The Tribunal asked if she thought about whether they should marry. She indicated that she was aware she was committing a sin. The Tribunal asked the applicant when her husband commenced going to the church of [Suburb]. She thought it was when she was pregnant in 2012 or 2013. She claimed that previously he was a Christian.

25. The Tribunal asked the applicant if she had any further evidence to give as to why it should not be concerned that she had been in Australia for over 7 years at the time of her protection visa application. It explained that this may cast out on her claims to have feared persecution in China. The applicant indicated she did not apply for protection because she was on student visa. She then claimed that she did not know how to lodge an application for protection because nobody told her. The Tribunal noted that the applicant’s representative provided to the Department with the visa application a written statement stating that the applicant’s husband had applied for protection in 2010. It explained that this might cast out on her evidence that she knew nothing about protection at that time.

1. The Tribunal noted that the applicant’s representative had provided information to the Department with the visa application confirming that her husband applied for protection in August 2010. It asked if she had any comment to make as to why this might be of concern given her evidence about the application delay, that she did not know about protection visas. The applicant indicated she came to know about protection visas in the church. She had heard that somebody had applied for protection and it was refused and they were arrested. She held a student visa and considered it to be a protective visa allowing her to remain in Australia. The Tribunal noted from information she had provided to it, in the delegate’s decision record, that her student visa ceased in 2011 and that therefore she was in Australia unlawfully for 4 years before applying for protection. The applicant indicated that she knew of people whose protection visa applications had been refused. She prayed and later met someone who asked her why she had not lodged a protection visa application. The person told her that if her claims were true she would be granted protection. Also her child was getting older so she decided to apply for protection.

2. The Tribunal noted that the applicant has claimed that she cannot relocate in China. It referred to country information which indicates that it is possible to relocate in China. The applicant indicated that she could only move around her own town, from village to village.

3. The Tribunal asked the applicant about her Catholic practice. She indicated that she goes to [Church] because she is a Catholic. She indicated that she commenced going after she arrived in Australia and it gradually confirmed her religious belief as things fell into place. She believes it was an act of God. The Tribunal asked the applicant if she would ever lie to her priest. She was emphatic that she would not lie to her priest because that would be like lying to God. The Tribunal noted that the applicant had provided a letter from Father [B] which claims that the applicant had informed Father [B] that she and her family had been attending [Church] since October 2008. The Tribunal noted that this was different to her oral evidence in relation to her husband’s attendance at that church. The applicant claimed that Father [B] was referring only to her attendance. The Tribunal noted that Father [B] had stated that the applicant and her family are members of the Western Sydney Catholic Chinese Community and they have been regularly attending the Chinese Catholic Mass, and that the date of first attending [Church] was given to Father [B] by the applicant. The Tribunal explained that it appears that Father [B] has been informed by the applicant that she and her family, that is also her husband, have been attending [Church] since October 2008. It noted that the document from [Mr C] also indicates that the applicant and her family are members of the Catholic Chinese Community and have been attending the church since October 2008. The applicant indicated that the documents were meant to indicate that she has been attending since October 2008.

4. The Tribunal asked the applicant if she considered the sacrament of baptism important. She confirmed that it is her personal belief that it is important. It asked in those circumstances why she was not baptised until April 2015, about 2 months before she lodged her protection visa application. She indicated that she gradually came to understand how important God was to her. She understood that if she wanted to be part of the faith and baptised she would need to go to classes for one year. She said the pathway to baptism is very long. The Tribunal noted it appeared to take her a very long time to be prepared for baptism given her claim that she had commenced attending [Church] in October 2008. It explained that this might cast out on her claim to have been a genuine Catholic since that time.

5. The Tribunal the applicant did not marry until January 2019. It noted that it had considered publicly available information which confirmed that it was not necessary to hold a current visa to marry in Australia[1]. The information indicates that the applicants merely needed to present their passports to lodge a notice of intention to marry. The applicant indicated that she did not know that she and her partner could marry in Australia without visas. She claimed she believes the sacrament of marriage is very important in the Catholic religion. The Tribunal asked why, in those circumstances, she did not marry until January 2019. She indicated that she lodged an application form with the priest and asked if she and her partner could marry if her partner was a non member of the church. The priest confirmed that they could marry however this took several weeks to get his response. The Tribunal noted that the applicant has indicated she was in a de facto relationship since May 2008. It questioned why it would take nearly 9 years for the parties to marry if she genuinely believed in the sacrament of marriage. She indicated she could not remember when the relationship started. She believed it was sometime after she completed her language course which was several months after she arrived in Australia. She confirmed that they were living together in 2010 when her partner lodged his protection visa application.

   [1] Notice of Intended Marriage available on NSW Registry of Births, Deaths and Marriages website, citing Marriage Act 1961.

6. The Tribunal noted that in the statement provided to the Department with the visa application, her husband stated that the applicant was thinking of applying for protection after their [child] was born in 2013 because of her own experience. The Tribunal asked what stopped her pursuing that protection visa application in 2013. She indicated that friends had applied for protection and were refused. She was worried that she would not meet the requirements for the grant of the visa.

7. The Tribunal explained that it may form the view that the applicant has attended the Catholic Church in Australia solely for the purpose of strengthening her protection claims. It asked if she had any comment to make as to why it should not disregard that conduct for the purposes of considering whether she meets the definition of refugee. The applicant indicated she wished to tell the Tribunal a personal story. She indicated that last time she was sick, she had haemorrhoids and she fainted. She thought she had hypotension. She went to see a Chinese doctor who could tell she did not have a healthy complexion. He took a blood sample and found that she had only 40% of the blood of the usual person and she was close to death. She believes without the intervention of God she would not have met that doctor. The Tribunal asked the applicant if she had any other comment to make as to why it should not disregard the conduct she had engaged in in Australia. She stated that she did not attend the church for the purpose of the application and that she has a firm belief in Catholicism.

8. The Tribunal noted that the country information indicates there have been changes for Catholics in China. It asked if she is aware of any of those changes. She indicated that she understood there was a registered church in China but her parents are Roman Catholics. She has no idea about any changes for the Roman Catholics in China. She indicated that her mother said that the patriotic church is the only one accepted in China. She indicated that arrests of Catholics are not reported in Australia and the USA. She believes that the authorities put the information in a fancy package to cover up what is happening.

9. The Tribunal described to the applicant the country information which indicates that Catholic bishops from China attended a meeting with the Vatican in October 2018[2]. It also referred to the country information which indicates that there are 12 million Catholics and 7 million underground Catholics practising in China and about 1 million underground Catholics practising in Fujian. It noted that the country information indicates that the government officials are more likely to scrutinise churches with foreign affiliations, or those that develop large or influential local networks[3]. It asked about the number of people who attended her church in China. Initially she said ‘a lot’. The Tribunal asked if she could be more specific. She indicated that she was not able to tell the Tribunal. The Tribunal noted that there are underground churches in China that range in size from 30 to over a thousand. It asked if her church met either of those categories. She indicated she did not count and would not be able to say how many attended her family gathering on Fridays.

   [2] accessed 25 January 2019

   [3] [3] DFAT Thematic Report, Unregistered religious organizations and other groups in the People’s Republic of China, 3 March 2015.

10. The Tribunal noted that the local authorities may tolerate her family’s religious practice in China given that she had not given evidence that it was a large house church[4]. The applicant indicated that just because it did not attract attention does not mean that she will not be persecuted if she returns to China.

    [4] DFAT Country Information Report People’s Republic of China, 21 December 2017

11. The Tribunal noted that the applicant had described verbal abuse by her classmates as being the harm she suffered before she came to Australia. It noted that the delegate formed the view this was not serious or significant harm and explained that it might agree with the delegate. The applicant indicated it caused her psychological problems. The Tribunal asked that she must expand on this. She indicated that she is sometimes nervous and she cannot stay in places that are noisy or crowded.

12. The Tribunal noted that the applicant had provided a document claiming that her [sibling] had been arrested and detained. It explained that, while it had not made its findings about the document, there was country information which indicates that the use of fraudulent documentation is widespread in China[5] it explained that, considered overall, it may not accept that the Certificate of Release is a genuine document. It also noted that the alleged arrest and detention was due to the person participating in group fighting (affray) and does not refer to any unlawful religious activity. The applicant indicated that her [sibling] was arrested when the police were trying to demolish the church.

    [5] DFAT Thematic Report on Fujian Province, People’s Republic of China, 16 December 2016

13. The Tribunal noted that the applicant had claimed that the church was built with government approval. The Tribunal questioned whether the authorities would approve the building of an underground Catholic church. The applicant indicated her mother said the church building was paid for by the church members. She claimed the documents did not say it was a church building; they said it was a house.

14. The Tribunal noted that the applicant’s representative had provided to the Department the written submission about her husband’s protection visa application in August 2010. It asked her about the basis for that application. The applicant indicated that her husband had told her but she forgot. She then indicated that he was persecuted in China because he was a Christian. She was not sure what sort of Christian as she did not ask him. The Tribunal asked why she would not have asked her husband about his religious practice, particularly given that they are now seeking protection in Australia because of their religious practice. She indicated there are so many denominations she did not ask him; she just thought it was Christian. The Tribunal explained to the applicant that this may be of concern as it may consider it to be reasonable for her to have asked about his religious practice in the past. She indicated that she and husband do not talk about religion. She then indicated that they only talked about religious claims once. She could not remember when they talked about it. She indicated an analogy is if her son has a cold or fever, she cannot tell her husband constantly that her son is sick.

15. The Tribunal asked the applicant if there was anything else she feared in China. She indicated that she watches the news and recently there has been an incident in another town where people were buried alive. The Tribunal asked what she fears will happen to her if she returns to China. She indicated that she has a firm belief in Catholicism and she tries to preach the gospel. The Tribunal asked if she has actually preached in Australia. She claimed to preach to her friends. She does not want to return to China because her neighbours called her the devil. She does not experience that here where she has religious freedom to go to church and Bible studies and tell people she is a Christian.

16. The Tribunal then took evidence from the applicant’s husband. He indicated that he started his Catholic practice in about 2012. He previously went to a different Christian church in Australia. He indicated that Catholicism and Christianity are basically the same. He changed to Catholicism because of his wife.

    CRITERIA FOR A PROTECTION VISA

17. 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.

18. 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.

19. 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).

20. 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.  

21. 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

22. 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

23. 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.

24. The Tribunal, in reaching its decision, has taken into account all of the evidence before it. It has also taken into account independent country sources about China, relevant aspects of which are referred to in the findings below.

25. The DFAT 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. 

26. In relation to Fujian Province specifically, tolerance of religious groups has been higher, as discussed in the DFAT’s December 2016 report on Fujian[6].  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.  

    [6] DFAT Thematic Report, Fujian Province, People’s Republic of China, 16 December 2016

1. The Tribunal accepts that 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.

2. 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[7]. 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. 

   [7] The Diplomat, China could get a lot more than we think from a deal with the Vatican, 4 May 2018.

   Nationality

3. The Tribunal finds that the applicant is a citizen of China, based on her Chinese passport and oral evidence and will assess the claims on this basis. The Tribunal finds that she is outside her country of nationality. There is no evidence before the Tribunal to suggest that she has a right to enter and reside in any country other than her country of nationality. The Tribunal accepts the second named applicant is also a citizen of China with no right to enter and reside in any other country.

   Do the applicants have a well-founded fear of persecution?

4. In the written application the applicant has claimed that her parents came to the attention of the authorities ‘due to family planning’ and her mother was forcibly sterilized. She has not however claimed that she will be harmed because of this family history. The Tribunal is not satisfied that the applicant will suffer any harm in the future because of this family history.

5. The applicant has also claimed that her parents came to the attention of the authorities because of their Catholic religion. She claims her father was persecuted because he was a preacher in the church. She claims her parents were arrested and detained twice in 2006; once at their home because they ‘went to an illegal gathering’ or held an illegal gathering, when they were detained for 3 months, and later because they were passing out pamphlets when they were detained for over 2 months. She claims her parents have had to move from village to village because of their difficulties with the authorities. She claims however that she would not be able to afford to relocate in China. She claims that she was abused by neighbours and fellow students while at school. She claims she will not be able to find employment. She claims she has been attending [Church] in Australia since October 2008 and that her husband has been attending since 2012 or 2013; she cannot remember. She claims her husband has practised Christianity prior to attending St [Church] but she does not know which denomination. She claims her brother has been arrested and detained for a month for protesting about the demolition of a church. She claims that investigation is still underway. She claims that if she returns to China she will want to preach the gospel and she will not be able to practise her religion freely.

6. For the following reasons the Tribunal has serious concerns about the applicant’s credibility and the reliability of her evidence.

7. The Tribunal has considered the applicant’s evidence about her Catholic practice before she came to Australia. It notes she admitted that when the family attended gatherings and Mass she spent most of her time playing with her [siblings] as she was not interested. She could not give the Tribunal any estimate of the size of the congregation, except to say ‘a lot’. The Tribunal is of the view her oral evidence on her Catholic practice in China suggests she was not a genuine practising Catholic in China, and her inability to give to the Tribunal an estimate of the size of the congregation casts doubt on her involvement in China in any underground Catholic gatherings or Mass.

8. The Tribunal has considered the applicant’s claims that her father was harmed because he was a preacher in the church. However it notes that when it asked the applicant at the hearing about her parents’ religious activities she did not mention in her oral evidence that her father was a preacher until the Tribunal raised her omission. The Tribunal considers her explanation, that her father was a preacher and was passing out pamphlets while he was preaching, demonstrates her willingness to change her evidence when its shortcomings are drawn to her attention.

9. The Tribunal has considered the evidence regarding her parents’ arrests and detention but finds her evidence lacks persuasive detail. She was unable to provide to the delegate the dates and locations and unable to provide the locations to the Tribunal even though she was 16 at the time she alleges they were detained. The Tribunal is of the view that, if her parents were arrested and detained for months as she has claimed, she would have been able to provide more details. It also notes she has variously claimed that the first arrest was for going to an illegal gathering and holding an illegal gathering. This inconsistency casts doubt on her claims that her parents were arrested and detained in 2006.

10. Significantly the applicant has been in Australia since May 2008 and did not apply for protection until June 2015, over 8 years after first arriving. When the Tribunal raised with the applicant its concerns about this significant delay she claimed she did not know about protection visas until 2010 or 2011. The Tribunal is of the view this evidence is undermined by the fact that her husband applied for protection himself in 2010. The Tribunal is also of the view that if she was genuinely attending [Church] since October 2008, where there is a significant Chinese community, she would have been exposed to information about protection visas long before her own application. When it was obvious that the applicant would have known about protection visas at least since her husband’s protection visa application in 2010, she claimed that she held a student visa and considered it to be a protective visa allowing her to remain in Australia. When the Tribunal noted from the delegate’s decision record (provided by the applicant) that her student visa ceased in 2011 and that therefore she was in Australia unlawfully for 4 years before applying for protection, she claimed she knew of people whose protection visa applications had been refused. She admitted she was worried she would not meet the requirements for the grant of the visa.  The Tribunal is of the view this indicates she was not genuinely fearful of returning to China; she was merely avoiding contact with the Australian authorities because she wished to remain here.

11. The Tribunal has considered the evidence about the applicant’s Catholic practice in Australia. While she claims to have attended [Church] since October 2008, the Tribunal notes she was not baptised until April 2015, shortly before she lodged the protection visa application. The Tribunal is of the view her explanation for this long delay in her own baptism, that she had to go to classes for one year, indicates she was not genuinely involved and committed to Catholicism before April 2014. The Tribunal also notes that while she claims the sacrament of marriage is very important in the Catholic religion, she did not marry until January 2019. She confirmed she was in a de facto relationship at least since 2010 when her husband lodged his protection visa application. When asked at the hearing to explain this delay the Tribunal notes she stated she lodged an application form with the priest and asked if she and her partner could marry if her partner was a non member of the church. She indicated the priest confirmed that they could marry however it took several weeks to get his response. This indicates she made this inquiry some time in 2018.  The Tribunal is of the view this casts serious doubt on her claim to be a committed Catholic, given her own evidence about the importance of the sacrament of marriage in the Catholic faith. It also indicates she considered her husband to be a ‘non member’ of the church which casts doubt on her evidence that he has been attending the church on a regular basis since her pregnancy in 2012/2013. The Tribunal is of the view the applicant has not been committed to Catholicism in Australia. The Tribunal has serious concerns that she has partaken in the sacraments of baptism and Catholic marriage solely for the purpose of strengthening her claims to be a Roman Catholic. The Tribunal has taken into account the written evidence of Mr [C] and Father [B]. However its notes both their letters state the applicant and her family have been attending [Church] since October 2008. The Tribunal has taken into account her explanation that the letters should refer to her only. However it notes Father [B] letter clearly states he has relied on the applicant for the information in his letter. The Tribunal has serious concerns that the applicant has merely told Father [B] that she and her family have been attending St [Church] since October 2008 and, given his church community is so large and busy, he accepted that she has been honest and frank with him. It has taken into account the letters of support from other parishioners and the photographic evidence. While it accepts that this evidence confirms the applicant has been attending [Church], given its concerns about the delays in her baptism and marriage, it questions her purpose for doing this and her commitment to the Catholic faith. Considered overall the Tribunal is of the view the applicant has been attending [Church], and was baptised and married in the Catholic faith, solely for the purpose of strengthening her claims. It is not satisfied the applicant is herself a genuine adherent of the Catholic faith.

12. The Tribunal notes that the written and photographic evidence indicates that her children have also been attending activities at [Church].  It notes the second named applicant, born [date] was baptised on [date] and her second child born on [date] was baptised on [date]. It is of the view that the children, now aged [age] and [age], are too young to form their own intention to engage in activities at the Catholic church in Australia and their participation is determined by their parents. The Tribunal is of the view the applicant has engaged the second named applicant in the conduct, and had her children baptised in the Catholic faith, solely for the purpose of strengthening the claims that she is a Catholic.  It does not accept she baptised her children because she genuinely intends to raise them as Catholics.  

13. The applicant has claimed that she fears returning to China because she will not be able to preach the gospel and practise her religion freely.  As the Tribunal is not satisfied the applicant is a genuine adherent of the Catholic faith it does not accept she will preach the gospel if she returns to China. While the Tribunal accepts the authorities in China impose some restrictions on religious practice, it is not satisfied the applicant will practise any religion if she returns to China. It is not satisfied the applicant genuinely fears harm in China because of religion. 

14. The Tribunal has considered the claim that her [sibling] was arrested and detained for protesting against the demolition of the church.  The Tribunal notes the applicant has claimed that the church was built with approval from the government. When the Tribunal raised its concern as to whether the government would approve the building of an underground Catholic church she claimed the documents did not say it was a church building; they said it was a house. The Tribunal does not accept the applicant would know what the documents about the building application said. It has formed the view that the applicant fabricated this response on the spot to overcome the concern raised by the Tribunal. The Tribunal also notes the Certificate of Release, said to be for her [sibling], refers to an alleged crime of participating in group fighting. It does not mention that he was arrested and detained in relation to a protest against the demolition of a church. Taking into account other instances where the Tribunal has found the applicant has fabricated responses to overcome problems with her evidence, the Tribunal has serious concerns as to whether the applicant is a witness of truth. The Tribunal is not satisfied it can rely on the applicant’s evidence on this issue. It does not accept her [sibling] was arrested and detained for protesting against the demolition of the church.

15. The Tribunal has considered the applicant’s evidence that she was verbally and physically abused by neighbours and fellow students and as a consequence she psychological problems. On the evidence before it, the Tribunal is not satisfied either of the applicants will suffer harm of this nature in China. There is no medical evidence substantiating the applicant’s claim to suffer psychological problems.

16. The Tribunal has considered the applicant’s claims that her husband has been attending the Roman Catholic church in Australia however it notes her own her evidence that she made enquiries about whether she and her partner could marry if her partner was a non member of the church.  The Tribunal is not satisfied the applicant’s husband is a genuine adherent of the Catholic faith. Nor is it satisfied he will engage in any religious conduct if he returns to China as it finds the applicant’s evidence about his religious practice in the past lacking in detail and highly unpersuasive.

17. As the Tribunal does not accept the applicant’s claims about harm her family has suffered because of their religion, and it does not accept the applicant will participate in any religious activity if she returns to China, it is not satisfied there is any need for the applicant to relocate if she returns to China. It has considered her general claim that they will not find employment but it has not seen any evidence to suggest she and/or her husband will have any obstacle to securing employment if they return to China.

18. On the evidence before it, the Tribunal is not satisfied that the applicant believes she will be persecuted if she returns to China because of her religion or for any other reason. It is not satisfied she has a well-founded fear of persecution for reason of religion, and/or imputed political opinion based on her or her family’s religion or her [sibling]’s protest, and/or for her parents’ violation of the family planning laws or for any other reason. It is not satisfied that there is a real chance that she would be persecuted and the real chance of persecution relates to all areas of China.  Therefore, she 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

19. The second named applicant is now aged [years]. The Tribunal is not satisfied the second named applicant has a well-founded fear of persecution for reason of his religion, or any other reason, that there is a real chance that he would be persecuted and the real chance of persecution relates to all areas of China.  Therefore, he does not meet the definition of refugee. Accordingly, the Tribunal is not satisfied the second named applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.

    Do the applicants meet the complementary protection criterion?

20. As the Tribunal has found that the applicants do not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether they may nevertheless meet the criterion for the grant of a Protection visa under the complementary protection criterion.

21. As indicated above, the Tribunal is not satisfied the applicant is a genuine adherent of the Catholic faith. It does not accept she will come to the attention of the authorities because of any religious practice or that of any family member. While she claims to fear her children will suffer verbal and physical abuse she suffered, perpetrated by neighbours and fellow students, on the evidence before it, the Tribunal is not satisfied there is any reliable evidence to suggest she or the second named applicant or any member of her family will suffer harm of this nature in the future. It is not satisfied any psychological condition she may have will result in her suffering significant harm.  It is not satisfied there is any evidence to suggest the applicant and her husband will not be able to secure employment in China if employment is available.  On the evidence before it, 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 China, there is a real risk that she will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act. 

22. The second named applicant is aged only [years] and did not make his own claims.  In view of the above findings and on the evidence before it, the Tribunal is not satisfied that there is a real risk that he will suffer significant harm as a necessary and foreseeable consequence of the applicant being removed from Australia to China.  On the evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the second named applicant being removed from Australia to China, there is a real risk that the second named applicant will suffer significant harm. Therefore, the Tribunal is not satisfied that the second named applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act. 

23. 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), and cannot be granted the visa.

    DECISION

24. The Tribunal affirms the decision not to grant the applicants protection visas.

    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.

    …