1608332 (Refugee)

1608332 (Refugee) [2019] AATA 666 (28 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1608332
COUNTRY OF REFERENCE:                  China
MEMBER:Luke Hardy
DATE:28 February 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii)that the other applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 28 February 2019 at 3:32pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Salvation Army – not a state sanctioned church – ability to practise as Salvation Army member curtailed – religious persecution of Christians in China – fear of persecution well founded – not reasonable to relocate in home country – decision under review remitted for reconsideration
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth) Schedule 2
CASES
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs
Appellant S396/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71
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 13 May 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, Ms [A] and Mr [B], are wife and husband and both citizens of China. They arrived in Australia [in] August 2013 on Ms [A]’s [temporary] visa, Mr [B] being her dependent. They left behind a daughter in China. They lodged their protection visa applications on 9 June 2015 around four months before the expiry of the [temporary] visa. The delegate refused to grant the visas on 13 May 2016 and the applicants sought review by this Tribunal.
Ms [A] appeared before the Tribunal on 26 February 2019 to give oral evidence and present arguments in support of her claims.
Mr [B] evidently elected not to attend the hearing, in spite of being included as a “Part C” applicant. Relevantly, I note that whereas Ms [A] identified as a Christian in her own Part C form, Mr [B] entered “N/A” in response to the question regarding his religion (if any). He also answered “N/A” to all questions prompting him to provide his own substantive claims. In essence, he appeared to present as a de facto “Part D” applicant, having no claims of his own and being entirely dependent on the outcome of his wife Ms [A]’s application for the success of his own. Nevertheless, he was formally included in the present application as a “Part C” applicant and it was in that capacity that he was invited to appear before me on 26 February 2019. Ms [A] told me that her husband had elected not to attend as he thought it would be too stressful for him to do so. Then she said that the hearing invitation had only named her, but she was not correct in saying this, as both she and Mr [B] were addressed in the hearing invitation (ref. AAT file 1608332 at f.35). I asked Ms [A] if her husband was working on the day of the hearing and she said he was, as a [Occupation 1] on a [site]. I asked if her husband would have lost income if he had come to the heating and she said he would have done. I asked if that might be stressful and she said it might be. On the evidence before me, I am satisfied that Mr [B] chose not to accept the Tribunal’s hearing invitation and that he was not prevented from attending due to any circumstances beyond his control.
Due to Mr [B]’s failure to attend the Tribunal hearing, I do not have sufficient evidence on which to be satisfied that he meets s.36(2)(a) or s.36(2)(aa) of the Act. The only way his application could succeed would be if he meets s.36(2)(b)(i) or s.36(2)(c)(i).
Mr [A] presented three witnesses and I heard evidence from all of them. She also brought a friend, for social support, who I permitted to attend throughout the early part of the hearing.
The hearing was facilitated by an interpreter in the Mandarin-English medium.
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, he or she is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she is outside the country of his or her 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 he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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 issues
The main in this case is whether, on accepted facts, the applicants are entitled to protection in Australia as refugees or, if not, on complementary protection grounds.
For the following reasons, I have concluded that the matter should be remitted for reconsideration.
Claims
Ms [A] lodged her protection visa application on 9 June 2015. She was assisted by a person who was not identified as a registered migration agent. She claimed that she and her husband left China so that they could find the freedom to “become” Christians and “continue” their “commitment with Christ”. She claimed that coming to Australia had provided her and her husband with a pathway “to meet Christ”. She evidently asserted that she had her husband were attending mass every Sunday and that they would soon “be baptised”. She claimed she and her husband would not be able to practice their religion in China. She claimed that she and her husband could not relocate because the state’s treatment of Christians is the same throughout China. She said that they could not avail themselves of state protection because the authorities do not understand their religion.
Ms [A] attended an interview with the Minister’s delegate on 26 April 2016. Following the interview, she and her husband each re-submitted “Part C” protection visa application forms and a short handwritten note. Ms [A]’s new form contained basically the same claims as before with the omission of the claim “soon we will be baptised”. The form was completed, Ms [A] claims, in her own hand. At the time I first read this, my first impression was that Ms [A] might have been saying that the anticipated baptisms had eventually occurred.
Mr [B]’s revised form, however, seemed to undermine Ms [A]’s earlier suggestions that both applicants were Christian. As noted above, he answered “N/A” to the question about his religion (if any), and “N/A” to all questions prompting him to discuss his own substantive claims. His claim about religion contradicted the information provided by the person assisting him in the original protection visa application, where he had been referred to as “Christian”. Previously he had not responded to questions prompting him to describe his substantive claims.
Essentially, according to evidence including what she reportedly said in her protection visa interview, Ms [A] claimed to have been introduced by her mother to an unregistered Christian “family” church in her home town in Jilin province. She claimed that she attended church gatherings on and off subject to the demands and distractions of school. She did not claim to have suffered relevant harm in relation to her church activity , which mostly involved small family-sized gatherings for prayer and Bible discussion in private homes. She claimed that she recommenced attending regularly, twice a week, after she married (evidently in 2010). However, she did claim that in December 2012, police came upon a gathering she was attending and told her to leave it as she was “young”. She did not suggest that the gathering itself was closed or that others in attendance were harmed. She said she took a long time to find a church in [Australia] due to lack of language and orientation and the need to attend her classes here. She claimed, apparently vaguely, that she located one church and then another in [Suburb 1]. The delegate found that, according to her evidence and independent information, the second church to which she was referring was [Church 1] in [Suburb 1].
Ms [A] told the delegate that she did not always attend mass in person due to pressures on her time but tried to make up for this by “attending” available online services.
Ms [A] made other claims about having not been permitted to board a flight for Australia on the visa issued to her in March 2013. She applied for and was granted a new Chinese passport in [month] 2013 and it was on this passport, with the same visa that she was indeed able to depart China for Australia in August 2013. She was also able to use this new passport for a short visit to [Country 1] in July 2013. She originally claimed that when she tried to travel to Australia in March 2013, she was told there was something wrong with her visa. She claimed that she feared this reason had merely been provided to her as a pretext and that her difficulty travelling might have had something to do with a religious profile attributed to her by authorities. Seeming to contradict such a perception is the evidence ease with which she was able to utilise the same visa after obtaining a new passport. I infer from the information provided that her previous passport might not have had at least six months validity, which is reportedly a normal minimum requirement for foreign passport holders with Australian visas. On the evidence provided, I give no weight in this matter to the issue of the aborted trip to Australia in March 2013.
At the Tribunal hearing, Ms [A] was critical of assumptions and conclusions drawn by the delegate, suggesting that the latter had arbitrarily quizzed her and then arbitrarily given little or no weight to her correct and detailed answers to some questions, such as her ability to cite all of the Ten Commandments, while drawing negative conclusions to her answers to others, such as where she had displayed an interest in reading out the culture of the Israelites instead of saying, as the delegate expected a genuine Christian should say, that the events on the Gospels were more interesting. In fact, Ms [A] said, when asked about the Bible at her protection visa interview with the delegate, she started by naming and describing genesis and Exodus, went on to talk about the books discussing Jewish culture and would have gone on to discuss the New Testament had the delegate’s questions not taken the discussion to different subjects. On review of the material before me, I find that this is a reasonable analysis of how the protection visa interview proceeded and a reasonable objection to the manner in which the delegate attributed significant weight to perceived omissions at the same time as attributing little or no weight to detailed and correct information provided by Ms [A].
Shortly prior to the Tribunal hearing, Ms [A] submitted five supporting statements from members of the Salvation Army in [Suburb 1]. All attested to having first met her when or since she first approached the Salvation Army church in late [year]. All attested to Ms [A] striking them as being a committed Christian involved in welfare and volunteer work. Some attested to her leading prayer sessions during Sunday services. Some bore witness to her joining in evangelical activities. Some also attested to her having become a fully-fledged member of the Salvation Army in [year] after [mentorship] and training. Two of these witnesses appeared at the Tribunal hearing, spoke to their experience as Christians and in the Salvation Army, and gave evidence similar to what they had said in writing. One of these two, Ms [C], informed me that she had been Ms [A]’s mentor during her long induction into full membership of the organisation. The other, [Mr D] answered in some detail specific questions as to why he perceived Ms [A] to be genuinely Christian. The third witness, Ms [E], seemed relatively new to the Salvation Army, but said she considered Ms [A] to be devoted to the study of the Bible.
Ms [A] appeared at the Tribunal in a Salvation Army uniform, as did [Mr D], Ms [E] and the fourth person present, Ms [F], who was invited by Ms [A] to attend for social support. Ms [A] also brought what was evidently her own Bible.
I asked Ms [A] a few questions about her Biblical knowledge. Her evidence in reply was detailed and unforced; her conviction in what she was discussing seemed genuine. Asked to talk freely about a part of the Bible in which she took special comfort, Ms [A] cited and recited the eight Beatitudes as written down by Matthew (5:3-11).
I asked Ms [A] why she had moved from one church to another in Australia. I asked this because, according to her evidence to the Department, she had seemed at home with the church she had found in [Suburb 1]. In reply, Ms [A] said that she eventually found the ethos in that church dour and depressing. She said that the kind of church community she had been used to prior to coming to Australia had been more of a “family”, whereas, although parishioners at the church she went to in [Suburb 1] would say “Hi” on seeing her, they tended to have little or nothing more to do with her after that, apparently preferring just to listen to the priest and then go back to their own homes. She said that she soon missed the conversation and communality that characterised the “family” church she used to attend in China. She said that the only church that is right for her is one that treats its members as “family … under the Lord.” She said she had found this ethos and communality amongst the Salvation Army.
Ms [A] told me her mother remains a Christian even though her activities have been curbed of late due to new laws and increased police vigilance. She said she did not discuss religion with her mother over the telephone or other media although, on one occasion, her mother used code to tell her that police had recently come snooping, saying, “Two dogs came to our home.” Ms [A] told me her father, “a non-believer”, does business in [a certain area]. She told me her daughter, who is [age] and lives with her (Ms [A]’s) parents [and goes to] school in China. She said her daughter has not yet been baptised as no-one is currently able to take her to church. I asked if a pastor could not visit her parents’ home discreetly to baptise her daughter and she said no-one has come yet because “regulations are strict at the moment”. She added that her daughter is still young (younger, I note, that she was when her own mother had her baptised) and added that she will be baptised “when the time comes.”
Ms [A] said she and her husband were not baptised in Australia. Meanwhile, [Mr D] explained to me that the Salvation Army does not baptise but “enrols”. I questioned why Ms [A] had initially claimed that she and her husband were “soon” to be baptised in Australia and Ms [A] said in reply that that claim did not originate from her but was interpolated by the agent who assisted with her first (and formal) protection visa application. She correctly indicated that she had not repeated that claim in her handwritten submissions in the second form she submitted in May 2016. She said that she had been baptised around the age of [specified] and that her husband had also been baptised as a child. I put to her that she had taken trouble to correct details about pastors’ names in her evidence to the delegate but had not corrected the information about awaiting baptism. In reply, she said she did not know it was there in her protection visa application form.
Ms [A] referred me to her [temporary] visa application and said that she provided an ID, passport and hukou book to an agent, who then took care of her enrolment and fashioned a [temporary] visa application for her. She said she was not aware of any of the other material that was in her [temporary] visa application.
Ms [A] brought a photograph album to the hearing. The photographs depict Ms [A] engaged in a variety of Salvation Army gatherings and other church fellowship activities. Some of the photographs are identified as images of Ms [A] handing out pamphlets door-to-door in the neighbourhood. It is impossible to give these particular images much weight on their own, but I have considered the evidence in all of the photographs cumulatively.
Independent country information
DFAT reports that people in China attending “churches which are not officially sanctioned may be subject to detention”.[1] This treatment would appear quite obviously to amount to persecution.
[1] Ibid.
I have had regard to the following relevant, independent country information:
Unofficial estimates say that there are close to 100 million Christians in China, more than are members of its Communist Party, due to hold its 19th five-yearly National Congress in mid-October [2017].
But in several provinces, children were banned from attending Christian camps over the summer holidays while notices were issued in other provinces banning all school children, and their teachers, from going to church.
The restrictions were announced in some provinces where a relatively high percentage of Christians live – in the neighbouring eastern provinces of Fujian, Zhejiang, Jiangsu and Henan, and also the autonomous northern region of Inner Mongolia.
Children were banned from summer camps in Zhejiang, Jiangsu, Henan and Inner Mongolia, while in Fuzhou, the provincial capital of Fujian, churches from the state-sanctioned Three-Self Patriotic Movement (TSPM)* were told to report any activity held in registered religious venues, or obtain permission to hold events in un-registered venues.
“It is forbidden to force or tempt juveniles to believe in any religion,” churches in Fuzhou were told. “And it is also forbidden to conduct religious activities in non-registered religious venues without approval.” [2]
[2] “China bans children – and their teachers – from churches,” WorldWatchMonitor, 8 September 2017, See also: “Christian Children in China Forbidden From Attending Church,” CBN News, 17 July 2016, “Chinese priests ordered to put up signs banning children from churches,” Catholic News Service, 9 February 2018, “Minors Prohibited from Church Activities: Battle for the Next Generation – Religious Freedom No Longer Enjoyed by Minors in China?” American Center for Law and Justice, 2018, “In China, government-aligned bishops release ‘Sinicization’ plan,” Catholic News Agency, 25 July 2018, “China BANS Christian children from attending church and threaten parents with legal action,” The Express, 30 July 2016,

I take the meaning of all this to be that in China persons under 18 cannot even attend authorised churches. It would be an offence punishable by detention for Ms [A] to try to raise her daughter as a Christian, even in a state-authorised church.
Information located by the Tribunal indicates that the Salvation Army is not able currently to operate as a registered church in China. An article in a Salvation Army publication, “Others”, reported in September 2017 that the Salvation Army was given “permission to partner with local congregations in religious activities” at the invitation of Provincial Christian Councils in the cities of Kunming in Yunnan province, and Chengdu in Sichuan province. While this is viewed as an advance above not being able to operate at all in China, it evidently falls short nevertheless of permission to operate freely as a registered church in China.
The article in “Others” in September 2017 indicates that Salvation Army offices Kunming and Chengdu have also been given legal approval by Chinese authorities to conduct a range of charitable activities including social services and educational programs. The “permission to partner with local congregations in religious activities” appears to be an invitation to worship with the state-sanctioned Three Selfs Patriotic Church. According to the article:
The Salvation Army’s work in mainland China has been given a boost with news that the regional offices in China have received official government recognition and registration. received official government recognition and registration.
The offices in the capital cities of Kunming (Yunnan Province) and Chengdu (Sichuan Province) have received official recognition and been given legal approval to conduct activities that include disaster relief, disaster recovery, community development, social services, educational programs and, at the invitation of Provincial Christian Councils, permission to partner with local congregations in religious activities.
This achievement is the direct result of 30 years of patient, transparent and consistent relationship with government departments and Christian councils as well as partnerships with a multitude of non-governmental organisations (NGOs). […]
The Salvation Army’s ministry opened in mainland China in 1916 and quickly expanded across the northern and eastern provinces until 1949, when it withdrew from the mainland. Ministry and social services were retained in Hong Kong.
In 1985, at the invitation of the Yunnan Provincial Government, The Salvation Army provided disaster relief and recovery in mainland China. This opened the door to further collaborations and partnerships, which resulted in a wide geographical distribution of service and a greater recognition of the organisation’s presence. These programs included health education, HIV/Aids awareness, education sponsorship, income-generation projects to alleviate poverty, infrastructure and capital projects, consultation and training.
In 2015, the Central Government of China reviewed its registration expectations and procedures, which resulted in the establishment of a new law in January this year. Significant meetings in 2016 with the government and Christian councils during the visit of General André Cox and Commissioner Silvia Cox explored ways in which The Salvation Army could comply with these new regulations while expanding its partnerships and scope of work to better serve all the people of China. These discussions were very productive and opened new approaches that have now borne fruit.
“God has richly blessed our efforts and desire to serve the mainland and its peoples”, says Lieut-Colonel Swan. “We now have further opportunities and responsibilities to build on these foundations so the next 30 years will produce results for future generations.”[3]
[3] “The Salvation Army in mainland China receives official recognition and registration,” Others: Salvation Army Australia magazine, 21 September 2017, DHA CIS file at CXC90406620388
I note that the Salvation Army issued a 2014-2016 Biennial Report which noted that the Salvation Army “cannot provide Sunday service” in China due to “the religious policy in mainland China”:
Due to the religious policy in mainland China, The Salvation Army cannot provide Sunday service to these brothers and sisters. However, we are still thankful for the opportunity to work together to serve those in need.[4]
[4] “2014-2016 Biennial Report,” The Salvation Army, p.20, September 2017, DHA CIS file at CISEDB50AD8168
Findings in relation to s.36(2)(a)
Ms [A]’s claims relate to the s.5J(1)(a) factor of “religion”.
The only corroborated evidence of Ms [A]’s engagement with Christian churches anywhere relates to her involvement with the Salvation Army. On the evidence before me, I accept that the witnesses have all been truthful and sincere. Nevertheless, due to Ms [A] having engaged in the conduct of affiliating with the Salvation Army since she arrived in Australia, I am required to have regard to s.5J(6) of the Act (see Attachment below). Overall, I found her evidence about her claimed religious beliefs and her involvement with the Salvation Army to be candid, unforced, nuanced and detailed. I have given some weight to this impression, particularly in my consideration of those claims advanced by her that are unsupported.
On review of the evidence, albeit with some reservations relating to the quality of her testimony to the delegate, I accept that Ms [A] is a genuine Christian and has affiliated with Christian churches in Australia, including the Salvation Army, in good faith. She is not caught by s.5J(6) of the Act. I accept that evangelism is genuinely an integral aspect of Ms [A]’s religion.
I am satisfied that Ms [A] has also provided a persuasive argument for choosing specifically to join the Salvation Army, having tried life in other churches in Australia. In view of her detailed explanation for preferring the Salvation Army to arguably more established Christian churches, I accept that Ms [A] grew up, subject to the time she could give, in a “family” church in China.
I accept that Ms [A] was being truthful when she told me the anecdote about her mother’s encounter with local police, and I give some weight to that evidence.
On a superficial reading, the independent evidence seems to suggest that it is safe to identify as a member of the Salvation Army in China; however, the detail argues that it is only safe insofar as the organisation operates as a charity and provider of social services within strict and very limiting guidelines.
I am satisfied on the evidence before me that the Chinese state is cracking down on unregistered churches in China. Whereas the Salvation Army in China welcomes the state’s offer to worship alongside members of the authorised Protestant church there, its members’ activities are nevertheless evidently curtailed: they cannot evangelise and they cannot conduct their own religious services. Ms [A] would not be permitted to attend a Salvation Army Sunday service in China, were one even to exist, and she would not be able to proselytise as she does here, lest she face a real chance of being persecuted, and I give these matters some weight in assessing the impact of China’s religion regulations upon her.
I am satisfied on the evidence before me that Ms [A] sees proselytising as part of her Christian mission. I understand from independent evidence that the Salvation Army recommends that its members in China suppress desire to proselytise in favour of the small gains they have made with the authorities there. To expect Ms [A] to follow such a directive in order to avoid persecution strikes me as an unreasonable expectation on her to alter her behaviour.[5]
[5] Appellant S395/2002 v. Minister for Immigration and Multicultural Affairs; Appellant S396/2002 v. Minister for Immigration and Multicultural Affairs, [2003] HCA 71, Australia: High Court, 9 December 2003,
Although her daughter is not an applicant in this matter, I find that in the event of return to China, Ms [A] will try to raise the child as a Christian, having her baptised in due course as once she was herself, and that she will only desist from doing these things due to fear of being persecuted. The Tribunal must regard such self-repression, in the circumstances, as unreasonable.[6]
[6] Appellant S395/2002 v. Minister for Immigration and Multicultural Affairs; Appellant S396/2002 v. Minister for Immigration and Multicultural Affairs, [2003] HCA 71, Australia: High Court, 9 December 2003, >
I am satisfied that working within state-sanctioned parameters on behalf of the Salvation Army but worshipping only with a state-sanctioned church would be an unreasonable imposition on Ms [A] and that were she to seek alternative ways to worship, were any available to her, she would face a real chance of persecution.
I am not satisfied that Ms [A] can avoid persecution by relocating within China, given the evident ubiquity of enforcement of the new religion regulations there.
On the evidence before me, I am satisfied that Ms [A] faces a real chance of persecution in China for reasons of “religion”. Her claimed fear of persecution is well founded. She is a refugee.
For the reasons given above, I am satisfied that Ms [A] is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s.36(2)(a) of the Act.
This being the case, there is no need to consider Ms [A]’s claims against s.36(2)(aa).
I am not satisfied that the other applicant, Mr [B], is in his own right a person in respect of whom Australia has protection obligations for the purposes of s.36(2)(a) or (aa). However, on the evidence of his continuing to be Ms [A]’s husband, and of his being a member of the same family unit as Ms [A] for the purposes of s.36(2)(b)(i) of the Act, the fate of his application depends on the outcome of Ms [A]’s application. Mr [B] will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.
Findings in relation to s.36(3)
I am satisfied that there are no possible steps that Ms [A] could take to avail herself of the protection of a third country. Accordingly, she is not caught by s.36(3).
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii) that the other applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Luke Hardy
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 666

28 February 2019

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Immigration

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Statutory Construction