1611509 (Refugee)

[2019] AATA 6797

1611509 (Refugee) [2019] AATA 6797 (12 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1611509

COUNTRY OF REFERENCE:                   China

MEMBER:Penelope Hunter

DATE:12 September 2019

PLACE OF DECISION:  Sydney

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

Statement made on 12 September 2019 at 10:24am

CATCHWORDS
REFUGEE – protection visa – China – religion – Christianity – family church raided in China – credibility – inconsistent evidence – delay in attending church in Australia – delay in applying for protection – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 36, 65, 428

Migration Regulations 1994 (Cth), Schedule 2

CASES

MIEA v GUO (1997) 191 CLR 559

Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 14 July 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants who claim to be citizens of China, applied for the visas on 14 September 2015.

   CLAIMS AND INFORMATION BEFORE THE TRIBUNAL

3. The first named applicant (the applicant) is [age]-year-old Han Chinese, from Fuqing in Fujian Province, China. According to her application of protection visa, her parents continue to reside in China and her brother resides in [Country 1]. She had completed a course in [subject] from [Institution 1] in 2007. She arrived in Australia [in] December 2007 on a [temporary visa] and has not departed since. Her most recent [visa] ceased on 15 March 2010 and she remained in Australia without a valid visa until she was granted a Bridging visa associated with her application for protection visa on 17 September 2015.

4. The second named applicant is a [age]-year-old national of China, from Fuqing in Fujian Province, China. He is the partner of the first named applicant since 28 September 2014 and is a dependent on her protection visa application. His parents reside in China and his sister resides in [Country 2]. He arrived in Australia on a [temporary] visa [in] May 2007 and his latest substantive visa ceased on 15 March 2010. He has been residing Australia without a valid visa until he was granted a Bridging visa associated with the application under review. He does not raise any separate claims for protection.

5. In a statement provided with her visa application the applicant set out her claims for protection as follows (in summary):

   i.Her mother is a Christian and under her influence, her family often attends gatherings. In 2002, her mother organised a Christian Bible Study Class. They met once a week and as more people joined the class, her father prayed and sang hymns with people in the class.

   ii.In the beginning of 2006, her neighbours had concerns about their gatherings and came to intervene. Some neighbours went to report to the Residential Committee. As a result, the committee members and the police came to monitor their house very often. Her father had to organise the gatherings with great caution.

   iii.Sometime in July 2006, as they were having their gathering at home, a couple of police came and arrested her father and other Christians forcibly without a search warrant or any documentation. Her mother had to borrow money to pay the police before her father was released. The police also warned them not to have illegal gathering at home, or else they would be sent to detention centre if they were arrested again.

   iv.They reduced the number of gatherings from once a week to once a fortnight. Later on, her mother found out that their home was constantly harassed by the police and the applicant was being discriminated by school teacher and classmate, therefore she decided to send her to Australia to study as it as the ‘only way’.

   v.Her parents asked her not to go back as she knew what would happen if she goes back and she is seeking protection to protect her from persecution from the Chinese authorities.

6. The applicants were invited to a Protection visa interview on 11 July 2016; however, neither applicant attended the interview.

   Tribunal application

7. The applicant applied to the Tribunal for a review of the decision of the delegate on 27 July 2016.

   Preliminary hearing

8. On 5 June 2019, an authorised officer of the Tribunal conducted a preliminary hearing with the applicants, as permitted by the use of the evidence power set out in s. 428 of the Act. The applicants both attended the hearing, the second named applicant did not wish to give evidence. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. Prior to the hearing, the applicants provided some photographs in relation to their church activities in Australia[1] and a letter from Rev [A], dated 13 January 2019[2], stating that the applicants have been baptised and are active members of [Church 1] and they brought their two children to attend Sunday School.

   [1] Folio 21 of the Tribunal file.

   [2] Folio 22 of the Tribunal file.

9. At the preliminary hearing, the applicants provided additional photographs in relation their church activities[3], a list of signature in support of their application to stay in Australia from members of [Church 1][4], Church rosters and agendas in Chinese, from 2017 to 2019[5]. The applicant provided the further information (in summary);

   [3] Folios 38 to 45 of the Tribunal file.

   [4] Folios 62 to 63 of the Tribunal file.

   [5] Folios 46 to 61 of the Tribunal file.

   i.Her friend [named] had assisted her with her visa application. She confirmed that she had understood the information in her application and had asked many questions about the content of her application.

   ii.The applicant said that her hometown was [Village 1], [Town 1], Fujian Province. She said that she had been born there and had subsequently moved away in 2002 and moved back around 2006. She moved due to persecution suffered by her family. They moved to [District 1] in Fuzhou city. The applicant completed her high school in [District 1] in Fuzhou city, while her family was living away from the family home. The applicant said that their temporary home in [District 1] in Fuzhou city was relatively safe, but that her parents preached the Gospel and held Christian gatherings and would likely have been monitored. She said that everywhere in China the family would be monitored and that if they did not attend a patriotic church, they would not be safe.  Around June 2006 they moved back to her hometown.

   iii.Her parents do not continue to live in [Village 1], they still own the house. Sometimes they go back but they do not live there. Her brother is in [Country 1], he went there to study but now he has work rights. Because of the persecution the applicant’s mother decided to send her and her brother overseas to study.

   iv.The applicant claimed that in her family home there were often many Christian people attending. In 2002, a group of unknown persons suddenly rushed into her home while Christians were gathered at the house. At this time the applicant was  [age], and very frightened and hid behind the door. She says she heard many people arguing in living room, and believed that the strangers were arguing and pushing her parents and damaging books that parents were reading. The arguments went on for some time before the strangers departed the house. The applicant was very frightened and did not know was happening.

   v.In 2006, the applicant’s family were at home having a meal, when another large group of unknown persons entered the house. The applicant thought that they had been reported. They said that the applicant’s family was disturbing the neighbours by holding illegal Christian gatherings. These persons said that as Christians, the applicant’s family were members of a cult who were misleading people and brainwashing them. They didn’t produce any ID and took her mother away. They took her to the detention centre, the next day when they went there intending to post a bail for her mother. Her mother looked terrible and frightened; she was praying. Her [Relative 1] worked in the government and the applicant went to her [Relative 1] and begged her to help them. They had to pay money to secure her mother’s release several days later.

   vi.After this incident the applicant struggled at school because the event was widely known. The applicant was discriminated in school because they were Christian. No one would be friends with her, she would cry in her room, her parents found out something was wrong with her because she was always keeping it to herself and lost her appetite. They questioned her and they later found out she was bullied. One day her neighbor came back from Australia and told them to go to Australia. It was a multi-cultural country that protected religious freedom and human rights.

   vii.The applicant was unable to identify a specific denomination of Christianity that her family followed, but indicated that the family adhered to an underground church.

   viii.The applicant had no problem departing China because she had a legal visa. Her parents had obtained her passport when she was young and she had no problems at the airport.

   ix.In 2012 she started to attend her church, after a friend took her for the first time. She would attend every week, except when her children are sick.  The church activities that she participated in were worshipping god, reading the bible and singing hymns. She would listen to the pastor’s sermon and sometimes watch DVDs to learn bible stories.

   x.The applicant said that in 2014 she became aware she could apply for protection and that as soon as she realised, she applied.

   xi.She met the second named applicant in 2014 and they were married in 2014. It was not a registered marriage. They have two children who were both born in Australia.

   xii.If she returned to China, anybody could harm her because of her faith. She believes if she returns then she will continue to suffer similar harassment to that faced by her family in the past. Christians continue to be harassed in China, for example in [District 2] of Fujian city, a church attended by her [Relative 2] was demolished.

10. The applicants attended a hearing before the Tribunal on 25 July 2019. Once again, only the applicant wished to give evidence. The hearing was conducted with the assistance of an interpreter in the English and Mandarin languages. The following is a summary of the relevant information discussed with the applicant at the hearing:

    i.The Tribunal asked the applicant about the period between 2002 and 2006 when told the Tribunal’s authorised officer that she was living in [District 1] in Fuzhou city. She said that this was about two hours by bus from her home in [Village 1], [Town 1]. When asked about the reasons for her family’s move in 2002, the applicant said that her whole family believed in Christ and the government did not recognize that and many people bullied her and she asked her parents to study elsewhere. When she changed schools she thought that she could have a good life but when they learned that she attended church activities again she suffered discrimination. When they organised a group she would be left out and sometimes they would destroy her belongings on purpose. The applicant said that she attended [Town 1] High School, then when she relocated she attended [School 1] from 2002. She finished the latter part of her high school at this school and when she came to Australia her parents requested a certificate of completion.

    ii.The Tribunal asked the applicant whether it was her discrimination at school or the event that she told the Tribunal’s authorised officer about in 2002, when a group of unknown persons suddenly rushed into home while Christians were gathered at the house, that had made her family relocate. The applicant responded that because of the event of 2002 her family was forced to move elsewhere to survive.

    iii.The applicant was asked to explain to the Tribunal why she had not described and event occurring in 2002, or that her family had been required to relocate in her statement of claims contained in her application to the Department.  The applicant responded that she had mentioned that someone had come to her house. The Tribunal discussed with the applicant her original claims, and raised that not only was there no mention of an event in 2002, there was no mention that the family had to relocate for four years. The applicant had listed her address for the whole time in China in [Village 1]. She had also set out that she continued to attend her local high school [Town 1] High school until 2004. The applicant said that because they still thought of [Village 1] as her home, and they did not abandon it but occasionally visited, this was a reason she did not put her address in Fuzhou city in her application.

    iv.When she was a child she claimed she attended church with her mother at [a relative’s] house. When asked, the applicant claimed to be unsure about how many people attended but recalled that there were three pews, sometimes 10 people and sometimes there may be more. Later her mother held services at her house, the applicant claimed that this would occur two or three times per week. The applicant asked whether she was a Christian. She said that she was young and she just followed her parents. The Tribunal asked the applicant about the denomination of Christianity her family followed and she responded underground church. The Tribunal asked the applicant whether they were Catholic, Protestant, or Shouter or any other denomination of Christianity, again she responded underground church.

    v.She had contact almost every day with her parents. When asked if anything had happened to her parents since she left China the applicant responded that they were still living in Fuzhou city. Her father was working in [occupation]. They go to church occasionally but the applicant claimed that they could not attend in an open way.

    vi.The Tribunal asked the applicant about the information she told the Tribunal’s authorised officer that her mother was detained in 2006, after people came to the house while the family was having a meal. The applicant confirmed that this was correct. The Tribunal then asked the applicant to explain why in her original written statement she  has set out that some time in July 2006, as they were having their gathering at home, a couple of police came and arrested her father and other Christians forcibly. The applicant suggested that maybe there was a misunderstanding when she originally described her claims. The Tribunal discussed with the applicant that it was more than just an exchange of mother and father, she had originally said that this event occurred during a Christian gathering and other Christians were forcibly removed. Whereas to the Tribunal’s authorised officer, she had said that it occurred during a family meal and did not mention others being removed. The applicant then said that well people had come for a gathering at her house and that during the gathering there was a meal, and others were arrested but her mother was the organiser.

    vii.The applicant said that she thought she had to only give brief details in her Protection application. As a reason for the delay in her application she claimed she had waited to lodge the application until her English was better and she wanted to integrate.

    viii.The Tribunal asked the applicant about her claims of discrimination at school, it was pointed out to the applicant that in her written claims she had said that the discrimination started after the incident in July 2006. The applicant had told the Tribunal that she had finished school when her family moved back to [Village 1] in June 2006. The applicant said that her discrimination happened over a lengthy period but in 2006 it was the most serious. Once again the Tribunal drew the attention of the applicant to her evidence that in 2006 when she returned to her village she had stopped studying.

    ix.The applicant said that she travelled to Australia to study because her health had been affected by the discrimination that she experienced at school. The Tribunal asked the applicant whether anything happened between July 2006 and when she departed China in December 2007. The applicant said her parents were concerned about her problem. This was why they allowed her to come to Australia after they prayed to God. Her parents believed that there was religious freedom in Australia.

    x.The Tribunal asked the applicant about her studies in Australia. She said that she studied English and later on she planned to do a diploma. She said that she had an incident and was cheated by a migration agent. The Tribunal asked the applicant several times to clarify what courses she was intending to study between December 2007 and March 2010 when her initial student visa ceased. She said that she started English but before the course finished her school became bankrupt. She said that she had studied for a year.

    xi.The Tribunal asked the applicant to explain what she had meant when she claimed that she was cheated by a migration agent. The applicant said that she could not remember clearly what had happened. It was to do with her school closing, the agent had said that she could apply for a diploma but she would have to pay further tuition fees and she was told that the visa could not be transferred. The applicant confirmed that this was a migration agent that she had engaged in Australia.

    xii.The Tribunal asked the applicant why she remained in Australia in 2010 after her student visa expired and she said that she was afraid. She had become a bit rebellious and her parents had sent her to Australia. Her parents thought that as she had been in a country with religious freedom she should take the opportunity to get close to God. In addition, a male who offered her a lot of care then betrayed her. He found another woman with a good visa condition and used this woman to get legal status. The applicant confirmed that at this time she was not attending church in Australia. The Tribunal questioned what in 2010 she then had to fear, and the applicant responded that a shadow was cast in her mind because of the previous incidents in China. She was still fearful for her family. The Tribunal put to the applicant that she had earlier said she had engaged a migration agent, it appeared to the Tribunal that she knew where she could get assistance with migration matters, so why did she not seek advice before she became unlawful. The applicant said she was afraid and did not have any knowledge.

    xiii.The Tribunal asked the applicant how she supported herself in Australia at this time and she said that sometimes she did [a job] and she had many friends who were also helpful. The Tribunal asked the applicant whether she decided to attend church in 2012 to provide grounds for an application for Protection in Australia. She said this was not the case. She attended with a friend and that she had gone astray, and however she repented and went back to God. When asked how she practiced her religion in Australia, the applicant said that every Sunday she would attend worship. This would involve singing hymns. About every month she was on the service roster and would help with cleaning and snacks. Occasionally she would look after children. The second named would hand out pamphlets at the door. The Tribunal asked what being a Christian meant to the applicant. She said that when she came back to God again she realised that she had made a lot of mistakes. If she had been close to God she would not have gone astray.

    xiv.The Tribunal asked the applicant about her marriage to her husband, she claimed that they were not registered with a certificate. The Tribunal asked if this meant that they were not legally married and she said yes. The Tribunal asked where they were married and the applicant said that she was married by her pastor at her church. The applicant confirmed that she had a religious ceremony not a civil ceremony, the Tribunal put to the applicant that this would still be a valid marriage. The applicant said that because her family was not there it did not feel complete.  Her first child was born on [Date 1], and her second on [Date 2]. The Tribunal asked the applicant about identity documents for the children and she said that she had not registered them with the Chinese embassy. The Tribunal asked the applicant whether it was her pregnancy and her desire to raise her child in Australia that prompted her to lodge th e application under review on 14 September 2015. The applicant claimed that she did not know that she was pregnant at the time. She lived with the second named applicant and their children in [suburb] in a private rental. She does not work. The second named applicant does [odd jobs]. She confirmed that the second named application was relying on her claims.

    xv.The Tribunal asked the applicant how she would practice her religion if she returned to China and she claimed that it was difficult to attend Church activity. The Tribunal discussed with the applicant country information contained in its report on China by the Department of Foreign Affairs and Trade regarding Christians in China, particularly  there was a large number of Christians in China and it is reported that unregistered Protestant Christian organisations, number approximate 70 to 100 million. In addition China was home to an estimated 12 million Catholics, of whom approximately seven million belong to ‘underground’ churches not affiliated with the government-sanctioned Chinese Catholic Patriotic Association.[6] It was further put to the applicant that country information indicated that Christian religious practice was possible within state sanctioned boundaries as long as it did not challenge the interest of the Chinese government. It was discussed with the applicant that she had not claimed that either her family or herself were politically active. In response the applicant confirmed that she was not political. The applicant was asked whether she could attend a state sanctioned church, in response she claimed that these churches were set up by the government and were against the will of the bible. The Trubunal also put to the applicant that r there was advice from DFAT that in the applicant’s home province of Fujian, it was reported that generally speaking, in-country contacts suggested that local authorities in Fujian tolerate the operations of unregistered churches who operate discreetly, including by limiting the number of worshippers and meeting in inconspicuous locations. DFAT understands that congregations of up to 50 people can meet weekly in private houses without being closed down / repressed by local authorities.[7] The applicant was asked why she could not practice in a similar manner if she returned. The applicant replied that the true story is that people will be persecuted just like her parents.

    xvi.The applicant said that her [Relative 2]’s church had been disassembled. The Tribunal asked the applicant about this church and she said that it was in Gilou district and it was demolished on Mother’s day. The Tribunal asked the applicant if her mother attended this church, and she said that she did. The Tribunal then discussed with the applicant reports about this incident and noted that it was called the New Reform Church, not the evangelical church and the applicant was asked what the beliefs of the church were. She then said only her mother’s friend had attended the church, her mother did not actually attend. The Tribunal again asked the applicant about the beliefs arising from the New Reform Church, she said that she only learned about the incident from her mother, she did not know about the church.

    xvii.The applicant said that she feared her children would suffer similar discrimination if they returned to China. When asked to provide the Tribunal of further examples of the discrimination she had suffered the applicant said that she was teased and sometimes other students would not talk to her on purpose. The Tribunal discussed with the applicant concern that this could be considered serious or significant harm. The applicant said that if it led to a psychological disease like her experience it would be serious and it could lead to severe harm like suicide.

    xviii.The applicant was asked if she would return to Fujian province if she returned to China. She responded that returning to China was something that she could not anticipate. She confirmed that her family was still in Fujian Province. The second named applicant was also from Fujian Province and has family in China. They were not Christian.

    [6] DFAT Country Information Report on China, 21 December 2017 at 3.16 and 3.17.

    [7] DFAT, Thematic Report Fujian Province, People’s Republic of China, 16 December 2016 at 3.12 and 3.13

    CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. 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.  

5. 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

6. 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

7. The issues that arise on review are whether the applicants are people in respect of whom Australia has protection obligations under the refugee criterion or the complementary protection criterion.

8. The mere fact that a person claims to fear 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 the 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 require 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 169-170.

9. The Tribunal in reaching its decision has taken into account all of the evidence before it, as referred to above. It has also taken into account independent country information about China, some relevant aspects of which were discussed with the applicant at the hearing.

   Nationality

10. The Tribunal finds that the applicant and second named applicant are citizens of China, based on their Chinese passports and the oral evidence of the applicant. Their claims will be assessed on this basis. The Tribunal further finds that the applicant and second named applicant are outside their country of nationality. There is no evidence to suggest that they have any right to enter and reside in any other country other than their country of nationality.

    Does the applicant have a well-founded fear of persecution?

11. For the following reasons the Tribunal is not satisfied that many of the claims of the applicant are credible. The Tribunal notes with concern significant anomalies between the applicant’s written claims and her oral evidence, the addition of new claims, as well as internal inconsistencies and the vague nature of much of her oral evidence to the Tribunal. These factors cumulatively demonstrate to the Tribunal the absence of reliability and truth to significant aspects of the applicant’s written and oral evidence generally as discussed below.

12. The applicant provided new claims to the Tribunal, over three years after lodging the visa application. At the time of her application the applicant did not describe any incident occurring in 2002 during which she told the Tribunal that people entered her home and confronted her family and others during a religious gathering when she was [age]. When discussing this incident with the Tribunal the applicant described it as serious, yet she was unable to satisfactorily explain its omission from her original claims. The applicant suggested that she was only being brief in her statement. As discussed with her at the hearing, it is expected that if a serious event similar to this had occurred the applicant would have at least provided a brief description. This is particularly so as the applicant claimed that it had the consequence of the family having to leave their village. This relocation was another matter omitted from the applicant’s original presentation of claims to the Department. The Tribunal does not consider her excuse that she still considered her family home, to be her real home, a sufficient explanation for this omission. In her attempts to explain this inconsistency it is considered that the applicant was adjusting and tailoring her evidence to suit her purpose. These omissions carried over not only from her statement but to other details of her personal particulars her visa application form. The applicant made no reference to ever having lived in [District 1] when she had set out the details all of her residential addresses in China in her Form C.[8] Furthermore, the details regarding her education set out in her Form C do not corroborate her claims that she left [Town 1] Middle school in 2002 and changed to [Institution 1]. In her Form C the applicant had set out that she continued at [Town 1] Middle School from 2002 to July 2005.[9]The lack of consistency indicates to the Tribunal that the applicant has fabricated this incident in an attempt to bolster her claims for protection.

    [8] Question 82, Applicant’s Part C Application for a Protection Visa, folio 49 Department file

    [9] Question 86, Applicant’s Part C Application for a Protection Visa, folio 46 Department file

13. There were further discrepancies for the Tribunal when the applicant described events which she claimed occurred in 2006. The applicant had set out in her initial statement that it was her father that was detained by the authorities. In her evidence to the Tribunal this changed to her mother. When presented with this inconsistency the applicant suggested that it may have been a translation error. The Tribunal also does not accept this excuse. This explanation came after the applicant had already confirmed that everything in her application was true and correct, that she understood the contents of her application, it was read back to her and she had asked questions. There was not just a single substitution of father for mother in her written statement, there remained several inconsistencies. The statement also sets out that her father organised gatherings and was being monitored by the residential committee. In addition to exchanging which parent was detained, her evidence as to the description of the event at the Tribunal hearing was not consistent with her written claims to the Department. The Tribunal considered that there was a substantial difference between a religious gathering at her home, as set out in her statement, and a family meal as described to the Tribunal. The applicant’s explanation for the inconsistency, that the religious gathering at that time included a meal, again appeared to the Tribunal as if the applicant was shifting her evidence on the run. She was also unable to satisfactorily explain her omission of other Christians being detained from her home at the same time as one of her parents. These inconsistencies in the applicant’s description of this event further indicate to the Tribunal that the applicant’s claims in relation to her experience in China are not genuine.

14. The Tribunal also had difficulty with the applicant’s evidence regarding the discrimination she claimed to have experienced in China due to her claimed Christianity. In her written claims the applicant sets out discrimination by a school teacher and classmate as occurring later on, and it is set out with events occurring after July 2006 including constant harassment by the police at her home. In her evidence to the Tribunal the applicant did not provide details of constant harassment by the police after July 2006. In fact the Tribunal asked the applicant if anything happened between July 2006 and her departure in December 2017, she said that her parents were preoccupied with her deteriorating condition due to her discrimination at school. There was no evidence consistent with the claimed police harassment as set out in her statement. Additionally, from the applicant’s written claims it appears that she had set out the discrimination occurring at school after the incident when one of her parents were detained in July 2006. However she told the Tribunal that her discrimination at school was one of the reasons that the family relocated to [District 1] in 2002. The differing timing of these events also caused the Tribunal considerable concern regarding the reliability of the applicant’s claims in respect of her experiences in China. The Tribunal has considered the explanation offered by the applicant, that the discrimination occurred over a long period and then following one of her parents being detained in 2006 it got worse. Yet in her evidence to the Tribunal the applicant claimed that she had already left school in June 2016 before her family returned to [Village 1] in [Town 1]. So this explanation was not consistent with her own evidence. Furthermore, the claim that she had finished school in June 2006 is also at a discord with the details of her schooling as set out in her visa application form where she had set out that she continued to attend [Institution 1] until July 2007.[10] The Tribunal is not satisfied that any of the claims regarding discrimination that she experienced due to being a Christian in China, or that the applicant’s family was constantly harassed by the police, are reliable.

    [10] Question 86, Applicant’s Part C Application for a Protection Visa, folio 46 Department file

15. The Tribunal has also taken into consideration the fact that the applicant was able to depart China in December 2007 on a passport issued in her own name. Independent information indicates that China’s major airports have a system for monitoring exit and entry procedures. According the most recent DFAT report, to which the Tribunal is to have regard pursuant to Ministerial Direction 56, security monitoring capabilities at airports are comprehensive, and departing passengers pass through several identity checks (including passport and ticket/boarding pass inspection) run by different agencies between arriving at the airport and boarding a flight.[11] A similar state of affairs is recorded in the earlier DFAT report issued in 2015, where it is claimed that China’s major airports have a centralised system with name matching alert capabilities. Security monitoring capabilities at major airports are comprehensive.[12] If the police were monitoring the applicant’s family and constantly harassing her home as she had claimed, the Tribunal considers that it would be improbable that she would be able to depart China without incident.

    [11] Australian Department of Foreign Affairs and Trade, Country Information Report – China 17 December 2017 at 5.20

    [12] Australian Department of Foreign Affairs and Trade, Country Information Report – China 3 March 2015 at 5.16

16. The Tribunal has also considered the fact that the applicant did not attend Christian Church in Australia until 2012, five years after her arrival. The applicant attributed her family’s  decision to send her to Australia to the fact that there was the freedom to worship her religion. The Tribunal considers the absence of any religious activity in Australia until 2012, further undermines the applicant’s claim that she was close to God and a Christian prior to departing China in 2007. In addition to the various concerns as discussed above, the applicant’s inability to identify the denomination of Christianity she followed while in China, creates further doubt for the Tribunal that the applicant or her family engaged in religious practice in China prior to her departure. While it is accepted that many Protestant religions in China are non-denominational, it was clear when questioned the applicant did not know the difference between Protestant and other denominations of Christianity such as Catholic, Shouter or Eastern Lightning. The Tribunal did not consider that this lack of knowledge was consistent with someone who had followed their parents in their religious devotion since a young child and whose mother taught bible study since 2002.

17. The Tribunal also places weight on the considerable delay by the applicant in claiming protection. She had been onshore for eight years, five of those unlawfully before she made claims requesting Australia’s protection. The Tribunal is not satisfied that the explanation offered by the applicant that she was unaware that she could lodge such an application is believable. The applicant told the Tribunal that she had consulted a migration agent during the period of her student visa, it is transparent from this that she was aware of where she could obtain advice in relation to visa and migration matters. The applicant also spoke to the Tribunal about her first partner in Australia abandoning her for someone with a permanent visa, this indicated to the Tribunal some knowledge of different kinds of visas in Australia. The applicant has also set out that she came to Australia due to its respect for human rights and religious freedoms, yet she would have the Tribunal accept that she had no knowledge for almost eight years in Australia how to obtain protection for these values if she had any genuine fear of returning to China. The Tribunal considers it difficult to understand why, if she had a genuine fear of persecution, she did not seek advice and lodge an application for protection earlier.   The applicant also said that she was supported by many friends in Australia prior to the lodging the visa application under review, they assisted her with financial support and employment. The Tribunal also understands that the protection program is well known among the Chinese community. The Tribunal finds it highly unlikely that the applicant would not have been aware of a protection visa until just before lodging her application, given her overall circumstances.  It is of the view that the applicant’s claim to have not been aware of protection visas until 2014 is unpersuasive. This still does explain why the applicant then waited almost a further year to lodge her application. She claimed that she wanted to learn English and further integrate, however the Tribunal notes the timing of her application coincided with the pregnancy of her first child and considers it probable this change in circumstances and the desire to access medical services for prenatal care that prompted the application rather than any genuine fear of harm in China.

18. Overall, the Tribunal is not satisfied that the applicant’s family were Christians or members of an underground church in China. It has formed the view that these claims have been manufactured, and consequently it does not accept any of the claims that flow from that. It does not accept that she was a Christian in China, that she was part of an underground church or that her parents were ever detained, that her family was forced to re-locate, that they were subject to police harassment or that she suffered from discrimination in school for this reason.

19. The Tribunal accepts that the applicant has been able to provide photographic evidence, and a letter from Rev [A] that she has attended [Church 1].  Rev [A] has set out that the applicant has attended church since 2012, and the second named applicant since 2015, the year that they lodged their protection application. The Tribunal has several doubts about the applicant’s motivations, however given the length of time that she has attended her Church, it is prepared to give her the benefit of the doubt. The Tribunal does not make a finding that her attendance was solely for the purpose of enhancing her prospects of obtaining a protection visa. The applicant was able to demonstrate some basic knowledge of Christianity, and while such participation in Australia may have a mainly social element rather than a religious element, the Tribunal accepts she may have a genuine religious interest in continuing her participation in China and has assessed the claims on that basis.

20. The applicant has said that together with the second named applicant she attends most Sundays. She listens to the pastor’s sermon and is interested in Bible stories. Monthly she will volunteer to assist with activities such as cleaning, child minding or the preparation of food after the service. The second named applicant will hand out the order of service as members enter. The Tribunal accepts that they engage in these activities. The Tribunal is also not satisfied on the evidence before it that if her “religious” activities in Australia would be or become known in China, that anyone who would want to harm her, or that it would cause or lead to the harming of her, as a result.

21. The Tribunal has considered that the applicant and second named applicant have family in Fujian and considers that they will return to Fujian province in China. The Tribunal has also considered the Country Information contained in the DFAT Thematic Report on Fujian Province discussed with the applicant at hearing that generally speaking, individuals in Fujian can practice religion within state-sanctioned boundaries, as long as such practices do not challenge the interest of the Chinese Communist Party.[13] The Tribunal has also had regard to information in relation to the applicant’s home province of Fujian, and in her circumstances where she does not claim to engage in evangelism as part of her religious practice, has not engaged in human rights or political activity, or challenged the authority of the Chinese government and does not have aspirations to be a religious leader. The Tribunal is satisfied that the applicant could attend a state sponsored church to engage in her current religious activity without harm. DFAT confirms that large numbers of people in Fujian worship in state sponsored churches, a Christian US NGO, Asia Harvest, estimated that in 2011 there were 1.88 million worshippers in state sponsored churches.[14] Further DFAT reports that bibles and other religious paraphernalia are readily available and for purchase at state sponsored churches and generally accessible to the public.[15]

    [13] Australian Department of Foreign Affairs and Trade, Thematic Report Fujian Province, People’s Republic of China, 16 December 2016 at 3.5.

    [14] As  above at 3.7

    [15] As above at 3.7

1. The Tribunal has also considered that the applicant has said that she would not attend a state sponsored church in China because it was against the bible. The Tribunal is not satisfied that she has demonstrated her religious authority for this proposition.  The applicant’s discussion of her religious beliefs to the Tribunal and their meaning for her was very vague and general. It is not satisfied that she has a deep held objection to religious practice in a state sanctioned church.  Nevertheless, the Tribunal has considered that she may wish to worship in an underground church which is subject to less control by the CCP. While the Tribunal accepts that the situation can vary between regions in China, the Tribunal is not satisfied based on the applicant’s evidence of the manner in which she undertakes her religious activities, if the applicant chose to attend an underground church, that the applicant faces a real chance of harm, in her home province of Fujian. In reaching this conclusion the Tribunal has considered the country information before it regarding the treatment of Protestants in China in the context of the applicant’s profile and religious activities as provided in evidence to the Tribunal. The Tribunal accepts that in recent years that there has been a tightening of religious affairs governance and policy, and that President Xi Jinping has articulated and encouraged an official policy emphasising the need to sincise religion, to ensure religious rights do not impinge on CCP authority, and to enforce the prohibition on Party members belonging to any religion.[16] However, it has also had regard to the DFAT advice that in Fujian, in practice the CCP is largely indifferent to religious practice at an individual level, with the exception of party members[17], which the applicant is not. Likewise in 2011, Asia Harvest, estimated that there were 1.57 million worshippers of Protestant linked unregistered churches in Fujian.[18] DFAT also reports that, generally speaking, in country contacts suggest that local authorities in Fujian tolerate the operations of unregistered churches who operate discretely, including limiting the number of worshippers and meeting in inconspicuous locations.[19] The Tribunal has also considered the claims of the applicant regarding the destruction of an underground church in [District 2], Fujian. The Tribunal is not satisfied that the applicant or her family have any association with the New Reform Church, it has considered reports of this incident,[20] this church was reported to have attracted government attention for 14 years and the events of May 2019 do not support targeting of individual worshippers. Which is consistent with the DFAT information that practices such as harassment, raids and the destruction of property are more likely to affect leaders rather than individual worshippers.[21] The Tribunal considers that based on the applicant’s lack of profile, the absence of any proselytising or leadership role, and the nature of her described religious activities, it is remote that her religious activities would be considered closely tied to other ethnic, political or security issues should the applicant wish to attend an unregistered church. The Tribunal is not satisfied that there is a real chance that the applicant has a well-founded fear of persecution for this reason.

   [16]  Australian Department of Foreign Affairs and Trade, Country Information Report – China 17 December 2017 at 3.23

   [17] Australian Department of Foreign Affairs and Trade, Thematic Report Fujian Province, People’s Republic of China, 16 December 2016 at 3.5

   [18] As above at 3.11

   [19] As above at 3.12

   [20] As above at 3.13 and Australian Department of Foreign Affairs and Trade, Country Information Report – China 17 December 2017 at 3.38

2. Finally the Tribunal has considered the claims that the applicant fears that her children will experience discrimination at school if they return to China. Particularly that they may be teased and that other children may not talk or play with them, or that teachers may not treat them favourably. Further, that the applicant’s concern for the well-being of her children may cause her to experience ill-health that may lead to suicide. The Tribunal is not satisfied that the applicant experienced discrimination for this reason in the past due to her alleged Christianity. It is acknowledged that children can be unkind to other children who have different characteristics. This is a hurdle that must be faced by many children in their formative years. Whilst accepting that the applicant’s children may face some unkindness, the Tribunal considers that this is very low level discrimination. The applicant and her children could seek appropriate intervention for any mental health problems that would arise from this worry. The Tribunal is not satisfied that the difficulties that would be faced by the applicant would be so significant that they would result in a real chance of her facing serious harm.

3. Therefore considering the claims and evidence of the applicant in totality, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reason of her religion or any other reason set out in s.5J(1)(a) of the Act, or that there is a real chance that she would be persecuted for one or more of those reasons. Therefore, she does not meet the definition of refugee set out in s.5H of the Act. 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.

4. Next the Tribunal has considered whether the applicant may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.

5. In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicants will suffer significant harm for any of the reasons claimed if she returns to China now or in the reasonably foreseeable future. The Tribunal is satisfied that the applicant can practice her religion without harm and it is not satisfied that any concern for discrimination experienced by her children falls within any enumerated definition of significant harm

6. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, the Tribunal is not satisfied that she will be arbitrarily deprived of life, the death penalty will be carried out on her, that she will be subjected to cruel or inhuman treatment or punishment or that she will be subjected to degrading treatment or punishment if she return to China now or in the reasonably foreseeable future.    

7. Accordingly, 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 as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that she does not satisfy the criterion in s.36(2)(aa) of the Act. 

8. For the reasons given above, the Tribunal is not satisfied that the first named applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act.

9. There is no suggestion that the first named applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a Protection visa. Accordingly, the first named applicant does not satisfy the criterion in s.36(2) of the Act.

   Second named applicant

10. The second named applicant did not make any claims for protection in his own right either before the Department or before the Tribunal. He did not wish to provide evidence to the Tribunal in relation to the application, although provided with the opportunity to two occasions. He claims to be a Christian, it is noted that he had commenced attending church with the applicant proximate to the time of the Tribunal application. The evidence is that he continues to attend church with the applicant. His family do not follow the Christian religion.

11. For the reasons stated above the Tribunal is satisfied that the second named applicant could also continue to practice his religion and attend either a state sponsored church or underground church and undertake his current religious activity without harm. The second named applicant has provided to the Tribunal no evidence as to the conviction of his religious beliefs, instead relying on the claims of the applicant. There is no evidence that he has any other profile of engaging in political, human rights or evangelical activity while in Australia. There is no evidence that he would have a profile that would be of interest to the authorities or anyone else in China. The Tribunal is further not satisfied that as a result of concern over societal discrimination towards his children, the second named applicant would experience persecution.

12. Considering the information before it, and accepting that the second named applicant is also a Christian, the Tribunal is not satisfied that the second named applicant has a well-founded fear of persecution for reason of his religion or any other reason set out in s.5J(1)(a) of the Act, that there is a real chance that he would be persecuted for one or more of those reasons. Therefore, he does not meet the definition of refugee set out in s.5H of the Act. 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.

13. The Tribunal has also considered the second named applicant’s circumstance in light of the complementary protection criterion for a Protection visa. In view of the above findings, the Tribunal is not satisfied that there is a real risk that the second named applicant will suffer significant harm for any of the reasons claimed if he returns to China now or in the reasonably foreseeable future. Once more the is satisfied that he can practice his without harm and it is not satisfied that any concern for discrimination experienced by his children falls within any enumerated definition of significant harm

14. Accordingly, 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 he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that he does not satisfy the criterion in s.36(2)(aa) of the Act

15. As the first named applicant does not satisfy the criteria in s.36(2)(a) or (aa) of the Act and does not  hold a Protection visa, the second named applicant is unable to satisfy the criteria in s.36(2)(b) or (c) of the Act. Accordingly, the second named applicant does not satisfy the criterion in s.36(2) of the Act

    Children of the applicants

16. When the applicant’s came before the Tribunal for hearing it was revealed that they are now the parents of two children. Although the applicants brought their children to the Tribunal on the day of the hearing, they did not enter the hearing room and were not sighted by the member. The applicant stated in her evidence that her first child was born on [Date 1], and her second on [Date 2]. The Tribunal enquired whether the applicant had informed the Department of her children or registered them with the Chinese embassy and she said she did not. She has not presented any identity documents in respect of the children. The Tribunal does not have information as to their names, however it is accepted that the applicants have two children aged [as specified].

17. Regarding the first child of the applicants, as the first child was born before the decision of the delegate on 14 July 2019 deciding the protection visa application, by operation of regulation 2.08 of the Migration Regulations 1958, they are taken to have applied for the visa at the same time as their parents and the first child’s application is taken to be combined with the initial application of the applicant and the secondary applicant. However, as the Department was not notified of the birth of the first child, they did not make a decision in relation to this child regarding the visa. As there is no primary Departmental decision, there is no operative decision for the Tribunal to review. The Tribunal therefore does not have jurisdiction in relation to the first born child.

18. The second born child was born after the decision of the delegate and is not considered a visa applicant for the purposes of the application under review.

    DECISION

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

    Penelope Hunter
    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.

    …