1613760 (Refugee)

1613760 (Refugee) [2019] AATA 6506 (25 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1613760
COUNTRY OF REFERENCE: China
MEMBER:Catherine Carney-Orsborn
DATE:25 September 2019
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 24 September 2019 at 4:10pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Christian – attendance of unregistered church – forced acquisition of land – no compensation – exit procedures in China – departed legally on own passport – unable to provide any detail or cogent evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 5 August 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of China, arrived in Australia [in] April 2015 as the holder of [a temporary] visa.
The applicant applied to the Department of Home Affairs (the Department) for a Protection visa on 23 July 2015. On 5 August 2016, the delegate refused to grant the visa on the basis that the applicant did not appear as a credible witness and available country information indicated that such persecution would be unlikely. The applicant applied to the Tribunal for review of the decision on 29 August 2016.
The issues that arise on review are whether the applicant is owed Australia’s protection under the refugee criterion or under the complementary protection criterion.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal has before it the Department file and the Tribunal file. The applicant’s application for a protection visa is on the Department file. The applicant also provided a written statement setting out his claims. A copy of the delegate’s decision record is on the Tribunal file.
The applicant claims that he will be persecuted if he returns to China due to his religious beliefs.
The following information is provided by the applicant in his application for protection forms and in his written statement.
The applicant was born on [date] in [Town 1], Fujian Province, China. The applicant is a Christian of Han ethnicity, who speaks, reads, and writes Mandarin. The applicant married [in] January 1999 and divorced [in] February 2010. The applicant’s father is deceased, and his mother and [children] live in China. The applicant is in contact with them by phone.
The applicant provides inconsistent dates for his residences. The applicant lived in [Town 1] from August 1972 until January 1999. The applicant lived in [Town 2], Gutian, Fujian Province from January 1985 until March 2006. The applicant lived in a second address in [Town 1] from January 1999 until February 2010. Since coming to Australia, the applicant has lived in [Suburb 1], NSW.
The applicant completed primary school at [Village 1] Primary School in July 1986. The applicant worked part time jobs from September 1986 until August 2008. The applicant worked as a [Occupation 1] from September 2008 until March 2015.
The applicant’s family is Christian, and his parents attended family gatherings. The applicant also believes in God. The applicant states that the Chinese government forbids family religious gatherings, and only allow Christians to attend government-controlled churches. However, the applicant’s parents did not attend the public churches as they (the churches) do not put Jesus first.
After graduating from primary school, the applicant worked at many part time jobs. Living conditions were not very good. The applicant met his wife at a gathering, and married in January 1999. The applicant’s faith became stronger afterwards, as he believed God gave him his family.
The applicant’s parents were arrested for attending family gatherings. The applicant’s father said that he organised the meetings, so the applicant’s mother and other members were released. The applicant’s father was tortured in the police station, and was released after paying a fine of 5,000 yuan. The applicant’s father died in November 2002 due to the torture he endured.
The applicant and his wife attended secret gatherings at different church members’ homes, at which they praised the Lord, read the Bible, and preached the Gospel. However, in December 2009, when a gathering occurred at the applicant’s home, police surrounded his home and rushed in. The police searched the applicant’s home, and took the members to the police station. The applicant was detained, and the applicant’s wife went to her mother’s house and was arrested. The applicant was sent to the Fuqing Detention Centre for one month, where he was tortured and persecuted. The applicant said that he organised the gatherings, so the other members were released. The applicant’s wife paid a 10,000 yuan fine and the applicant was released.
The applicant was required to report to the police station regularly, and police sometimes came to the applicant’s home to check. The applicant wanted to get a divorce so that his wife and children would not be involved. Although the applicant’s wife initially disagreed, the applicant remained firm until she agreed.
The applicant’s family had land at home. The village cadres, who were corrupt and seeking profit, came to the applicant’s home in early 2014. They said that they knew the applicant was a Christian and attended underground gatherings, and that if the applicant did not sell his land to them for a small price, then he would be arrested for attending a cult. The applicant had to agree.
[In] October 2014, the applicant attended a gathering at the home of another church member, [Mr A]. The police came in and arrested all 13 people. The police said that the applicant had not repented, and beat him with a stick, as well as handcuffing him. The applicant and [Mr A] were sent to the detention centre. The applicant was asked to stand for a long time and reflect. The applicant’s family sent 20,000 yuan to the director. After a month of detention, the applicant was released and warned not to attend a gathering again, and had to report to the police once a week. [Mr A] was sent to a labour camp for 6 months.
The applicant was scared to stay in China, and decided to go abroad. The applicant fears that if he goes back to China and is found to worship God, then he would be arrested or gaoled, and be tortured due to his prior arrests.
COUNTRY INFORMATION
The Department Foreign Affairs and Trade (DFAT) Country Information Report: People’s Republic of China, dated 21 December 2017 provides the following information:
Chinese law provides for foreign travel, emigration, and repatriation. A number of agencies within the Ministry of Public Security hold responsibility for monitoring entry and exit procedures at Chinese airports, including the Public Security Bureau, the Entry and Exit Authority, and the Frontiers Inspection Bureau. China’s major airports have a centralised system with name matching alert capabilities. Facial recognition technology is also widely deployed at all international checkpoints (air, land and sea). 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.[1]
[1] DFAT, Country Information Report – People’s Republic of China 2017, 21 December 2017, p. 40, para [5.20].
In addition, the DFAT Thematic Report on Fujian Province, People’s Republic of China, dated 16 December 2016 provides the following information:
The Exit and Entry Administration Bureau under the provincial Public Security Department monitors who exits and enters Fujian, both via airports and through other means of public transport which require citizens to show their national identity cards. Given recent technological developments, DFAT considers it highly likely that there is a centralised list of high-profile individuals who are prevented from traveling internationally, and that this list is available to relevant security agencies.
DFAT is not aware of any evidence that suggests a failed asylum seeker returning to Fujian would be distinguishable from the broader community or susceptible to any form of discrimination or violence. An asylum seeker returning to Fujian who had or was perceived to have openly expressed dissenting political views or criticised the Chinese Communist Party and was therefore on the centralised list (see 5.6) and/or considered high-profile may be treated adversely in line with the conditions outlined in ‘Political Opinion’ (see 3.17 – 3.21).[2]
[2] DFAT, Thematic Report Fujian Province, People’s Republic of China 2016, 16 December 2016, pp. 16 – 17, paras [5.6] – [5.7].
The Tribunal notes that the US Department of State reported that the government permitted legal emigration and foreign travel for most citizens. Government employees and retirees, especially from the military, continued to face foreign travel restrictions. The government expanded the use of exit controls for departing passengers at airports and other border crossings to deny foreign travel to some dissidents and persons employed in government posts. Border officials and police cited threats to “national security” as the reason for refusing permission to leave the country. Authorities stopped most such persons at the airport at the time of their attempted travel.[3]
[3] US Department of State, Country Reports on Human Rights Practices 2018 – China, 2018, p. 41, (accessed 30 May 2019).
The Canadian Immigration and Refugee Board also wrote a research report dated 6 March 2014 on exit procedures in China. The report stated that airport officials have access to the Public Security Bureau of China’s online database of citizens who have been convicted of crimes or are wanted by authorities, and that officials would often confiscate passports held by individuals deemed unsuitable for foreign travel.[4] The Board produced another report on 22 September 2015, which noted that a person may be requested to produce their passport up to four times at the airport, and will be scanned at the airline check-in and the departure counter.[5]
[4] Immigration and Refugee Board of Canada, China: Exit controls and security measures at airports for Chinese citizens travelling overseas, including procedures at check points and the use of computerized identity verification; sharing of information with officials at airports¸6 March 2014, CHN104761.E (accessed 10 May 2019).
[5] Immigration and Refugee Board of Canada, China: Information on electronic/biometric passports, including security features, Radio Frequency ID (RFID) technology and wireless tracking capacity; exit procedures at international airports, including e-passport verification, security checkpoints, and the use of facial recognition technology, 22 September 2015, CHN105049.E, (accessed 10 May 2019).
DFAT’s Country Information Report: People’s Republic of China, dated 21 December 2017 states, in part:
The establishment of the PRC in 1949 under the control of the atheist CCP resulted in the expulsion of Christian missionaries and the establishment of ‘Patriotic Associations’: government affiliated organisations which seek to regulate and monitor the activities of registered religious organisations on behalf of the CCP.
It is difficult to provide exact figures on the number of religious believers in China. Chinese government statistics record approximately 100 million religious believers in total, including over 23 million Protestants, six million Catholics, and over 22 million Muslims. Approximately 5,500 religious groups, nearly one hundred religion-affiliated academic institutions and as many as 140,000 registered places of religious activity are officially recognised. The Chinese government recognises 360,000 registered clergy.
In practice, the number of religious believers is likely to be much higher and rising, particularly in unregistered Protestant Christian organisations, whose numbers approximate 70 to 100 million.….[6]
[6] DFAT, Country Information Report – People’s Republic of China 2017, 21 December 2017, pp. 14 – 15, paras [3.15] – [3.17].
The report notes that Chinese law recognises five religions (Buddhism, Taoism, Islam, Catholicism and Protestantism), which are overseen by the State Administration for Religious Affairs (SARA). DFAT notes that:
Registered religious organisations may own property, publish literature, train and approve clergy, collect donations and conduct charitable activities. Government subsidies are available for the construction of state-sanctioned places of worship and religious schools.
Unregistered religious organisations are illegal and vulnerable to punitive official action.
Registered religious adherents may proselytise in registered places of worship and in Private settings but not in public. Foreigners may not proselytise. Registered religious Organisations may not distribute unapproved literature nor associate with unregistered religious groups. Revised regulations adopted in September 2017 (see below) prohibit religious groups in China from accepting any foreign donations, which were previously permitted
In April 2017, President Xi Jinping called on CCP officials working in religious administration to reassert the Party’s ‘guiding’ role in religious affairs. Xi’s speech emphasised the need to ‘sinicise’ religion, to ensure religious rights did not impinge on CCP authority, and to enforce the prohibition on Party members to belong to any religion. In September 2017, the (government) State Council approved revisions to the2005 Regulations on Religious Affairs, which devolve substantial powers and responsibility to local authorities to prevent illegal religious behaviour, including undue influence from foreign organisations. The new regulations, which come into force in February 2018, also impose large fines for organising illegal religious events or fundraising. They restrict religious education in schools, detailing procedures for approval and monitoring of religious training institutions.[7]
…
Broadly speaking, religious practice in China is possible within state-sanctioned boundaries, as long as such practices do not challenge the interests or authority of the Chinese government. Restrictions on religious organisations vary widely according to local conditions, making it difficult to generalise. Those who practise their faith in unregistered institutions are more vulnerable to adverse official attention than those in registered institutions. Public expressions of faith are more vulnerable to adverse treatment than private worship (including in small groups). Religious practice that the government perceives as being connected to broader ethnic, political or security policies is at high risk of adverse official attention …[8]
In addition to the state-sanctioned Catholic and (non-denominational) Protestant churches in China, SARA permits friends and family to hold small, informal prayer meetings without official registration. This, combined with the controlled nature of religious worship amongst registered Christian institutions, has led to the proliferation of sizeable unregistered Christian communities in both rural and urban China. Known as ‘house’ or ‘family’ churches (for Protestant organisations), and ‘underground’ churches (for Catholic organisations) these bodies are private religious forums that adherents create in their own homes or other places of worship. ‘House’ or ‘underground’ churches vary in size from around 30 to several thousand. Some churches deliberately restrict their numbers to avoid attracting adverse official attention. Government officials are more likely to scrutinize churches with foreign affiliations, or those that develop large or influential local networks, and house churches are under pressure to ‘sinicise’ their religious teaching.
Leaders of both registered and unregistered churches are subject to greater scrutiny than ordinary worshippers. Leaders of registered churches must obtain permission to travel abroad. Church leaders (registered or unregistered) who participate in protest activity on behalf of their congregations or elsewhere are at high risk of official sanction, but this is likely to relate more to their activism than to their religious affiliation.
Members of unregistered churches who participate in human rights activism are at high risk of official discrimination and violence, as are their families …[9]
[7] Ibid., pp. 14 – 15, paras [3.21] – [3.23].
[8] Ibid., p. 16, para [3.24].
[9] Ibid, p. 17 – 18, paras [3.37] – [3.39].

In addition, DFAT’s Thematic Report on Fujian Province provides the following information:
Generally speaking, individuals in Fujian can practice religion within state-sanctioned boundaries, as long as such practices do not challenge the interests or authority of the Chinese Communist Party. In practice, the Chinese Communist Party obstructs religious practice at an organisational level, and is largely indifferent to religious practice at the individual level, with the exception of Party members, who are not permitted to follow any officially recognised or other religion. Religious adherents can be subject to a range of restrictions that are inconsistent or lack transparency. An individual’s ability to practice religion can be influenced by whether the individual exercises their faith in registered or unregistered institutions, whether they practice openly or privately, and whether or not an individual’s religious expression is perceived by the Chinese Communist Party to be closely tied to other ethnic, political and security issues.[10]
…
Unregistered churches (otherwise referred to as underground or house churches) are predominantly independent Protestant and Catholic congregations which refuse to acknowledge or associate with the officially sanctioned TSPM and CPA. By definition, unregistered churches are clearly subject to less control by the state than TSPM- and CPA-linked churches but also operate at greater risk given their unregistered status. Some in-country contacts questioned the validity of the ‘registered’ and ‘unregistered’ dichotomy, pointing out that members of a congregation will often move between the two.
Asia Harvest estimates that in 2011 there were 1.57 million worshippers of Protestant-linked unregistered churches and one million worshippers of Catholic-linked unregistered churches in Fujian. Accurate data on the number of unregistered churches in Fujian is unavailable, however in-country contacts report that they are able to be identified and accessed, particularly by Protestants.
Given that legislative protections for freedom of religious belief extend only to government-affiliated organisations (such as the TSPM and the CPA), the operations of unregistered churches depend on the attitude of local authorities. Their treatment varies greatly across China, and within Fujian. Generally speaking, in-country contacts suggest 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.
Broadly speaking, DFAT understands that should an unregistered church or an individual perceived to be associated with an unregistered church engage in active and public proselytising, or are perceived to openly criticise the Chinese Community Party or the framework that regulates religious practice, the church or individual would likely be exposed to harassment, raids and destruction of property, pressure to join or report to TSPM- and CPA-linked churches and occasional violence and criminal sanction. In practice, this is more likely to affect leaders of unregistered churches, rather than individual worshippers. Leaders who amass a large (undefined) and unregulated congregation or personal following can also attract negative attention from the authorities.
Representative examples of the treatment of unregistered churches in Fujian are difficult to obtain. China Aid documented the destruction of an unregistered church (the Yulin Christian Church) in Fujian in January 2016 (although the events leading up to this incident are unknown). DFAT is unable to comment on the frequency of this occurring in Fujian, but open-source reporting and credible in-country contacts suggest that it has not been a common occurrence.
Charismatic leaders perceived to be associated with an unregistered church that come to the overt attention of local authorities are sometimes accused of committing offences unrelated to religious practice, such as fraud or corruption.[11]
[10] DFAT, Thematic Report Fujian Province, People’s Republic of China 2016, 16 December 2016, p. 7, para [3.5].
[11] Ibid., pp. 8 – 9, paras [3.10] – [3.15].
The hearing
The Tribunal took oral evidence from the applicant.
A summary of the evidence provided is as follows.
The Tribunal explained the process of the review and that the hearing was an opportunity for the applicant to provide further information and discuss issues and information that is relevant to his claim.
The applicant indicated that he had no difficulty understanding the interpreter.
The applicant confirmed that all the information on the application for protection was true and correct. The applicant confirmed they were still his claims.
The applicant stated that he was born on [date] in Fujian province. He entered Australia on his own passport a copy of which he provided to the Tribunal.
He said he has a [child] in China and siblings. He said his parents have passed away.
The Tribunal asked words to the effect of how his parents supported the family. He responded that they were preachers in church. He said words to the effect that they had a difficult time and he had no new clothes.
The Tribunal asked what work he did in China. He responded that he used to [undertake work tasks] but the area where he [worked] was confiscated by officials and he lost his job. He claims he lived in a rural area in a small town and the land was taken by the government. He thought he could not subsist in the area so he started to think about going overseas. The Tribunal asked when this happened. He responded about 2014 or 2015.
The Tribunal asked the applicant if that was why he left China. He responded yes, he was bullied and he could have been collecting rent but they bullied him and he could not live there.
The Tribunal asked the applicant why he was fearful of returning to China. He responded that China was corrupt and if a person is not rich or powerful you will be bullied.
The Tribunal asked the applicant to clarify that his parents were still alive when this happened. He responded that yes that is correct they were still alive and he drove them to all sorts of places and the authorities persecuted them.
The Tribunal asked the applicant to clarify that he was saying his parents were persecuted because they were Christians. He responded that they were fined heavily and persecuted by the local authorities.
The Tribunal asked why they were fined. He responded that they were affecting public order and were fined 20,000RMB. He clarified that he was arrested.
He claims they paid the fine and then officials took revenge by taking the land and reselling it. He claimed they were not compensated or allocated new land.
The Tribunal asked when this happened. He responded about three years ago. The Tribunal asked if he was saying 2016. He again repeated about three years ago.
The Tribunal asked the applicant to clarify that he was saying they took the land because his parents are Christian. He responded yes and they also took the business and sold those businesses. He stated that his family were bullied and not compensated.
He claimed that they lived by the sea and an official taped off an area by the sea and they lost their income. The Tribunal asked what the income was, he responded [work task].
The Tribunal reminded the applicant that earlier he had said words to the effect his parents had just been preachers with no income and they had a very poor upbringing.
He responded that part of their job was being pastors and they could get some income from land and [work task].
He said this happened around 2013. The Tribunal asked why he had twice earlier said this happened about three years ago. He responded that what he said was before 2013.
He said his parents passed away two years ago. He clarified that they passed away while he was in Australia.
The Tribunal put to the applicant that it was still not clear on why he cannot return to China. He responded with words to the effect that he was fearful of being bullied; he said that if you do not have a job you will be bullied by the local government which is corrupt. The Tribunal asked for clearer details about how he would be bullied he responded by every means.
The applicant said he had supported sons in China. The Tribunal asked again what work he did in China. He responded that he was doing [work] and [work task].
The Tribunal asked what work he was doing in Australia. He responded that he is currently [undertaking specified work].
The Tribunal pointed out that earlier he had said he would be looked down upon as he did not have a job. He responded that was correct.
The Tribunal then said that in his written statement he had claimed to be a Christian. He said his parents were Christian and he was driving his parents and was bullied.
The Tribunal again asked him to expand on how he was bullied and why this made him fearful of returning to China. He responded that if he went back he would be looked down upon.
The Tribunal asked if the applicant was Christian. He responded with words to the effect that he was Christian but it was something that he did not follow through.
The Tribunal asked what church he attended in China. He responded the church on the street he lived on. The Tribunal asked what the church was called. He responded [Church 1]. The Tribunal asked if this was a large church. He responded with words to the effect that it is now. The Tribunal asked if it was a state sanctioned church. He said it was not.
The Tribunal asked what type of church. He responded it was just Christian church. The Tribunal asked if he attended church in Australia. He responded that he attended a Christian church in [Suburb 2]. The Tribunal asked if he went on Sunday. He responded he did. The Tribunal asked what the address was. He responded that it was near [Shop] in [Suburb 2] and it just had ‘Christian’ on a sign in front of it.
The Tribunal asked what happened at the service. He said he just listened to the sermon. The Tribunal asked what the sermon was about. He responded he could not remember. The Tribunal asked if anything else happened at the service and he responded nothing else happened.
The Tribunal again asked why he cannot return to China. He responded with words to the effect that he wants to stay in Australia. He does not want to go back as he has become used to life here in Australia.
The Tribunal pointed out that it still was not sure why he was fearful of returning. He again stated he would be bullied and looked down upon. The Tribunal asked why he would be bullied and looked down upon. He said he didn’t have a job and could not make a living in China. The Tribunal pointed out that in his application for protection he had listed his employment as [Occupation 1]. The applicant said yes he worked as [Occupation 1].
The Tribunal pointed out that he did have a job. He responded that he was [not serious work]. He said they were reported and his parents were fined and he lost his job. The Tribunal asked if anything else happened to them.
He responded that nothing else happened. The Tribunal pointed out that in his written claims he said his father was tortured and detained and died in China in 2002 however he earlier told the Tribunal his parents died while he was in Australia.
He responded that his father passed away more than 10 years ago and his mother passed away while he was in Australia.
The Tribunal pointed out that during the hearing he had said he was fearful as he was bullied however in his written application he said he was detained and arrested twice.
He stated that he was arrested and detained for one month and then he paid a fine. He said he was arrested once. He said that he thought his father or mother was arrested as well.
The Tribunal asked for more detail. He responded that he could not remember as it was a long time ago.
The Tribunal then put to the applicant country information on exit procedure and Christianity in Fujian province.
The Tribunal pointed out that he exited China on his own passport and this would indicate he was not of interest to the authorities. He responded that a friend of his got his passport.
The Tribunal asked the applicant what would happen if he returned to China.
He said if he returned he would be without a job, the land has been taken, he will be unable to live there and his parents are gone so there is no point in living there.
The Tribunal asked if he had anything further to add.
He responded no.
Nationality
The applicant claims to be a citizen of China. He claims that he was born in the People’s Republic of China. The Tribunal has assessed his claims against China as his country of nationality for the purposes of the Convention and his receiving country for the purposes of s.36(2)(aa).
Does the applicant have a well-founded fear of persecution?
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. This involves assessing the credibility of the applicant’s claims. The Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.
The Tribunal found the applicant’s evidence to be confused. His evidence at hearing was different to the claims in his written documents. When repeatedly asked to give some detail about why he was fearful of returning to China. He could only repeat that he would be bullied. When asked how he would be bullied he responded by being looked down upon and not having a job.
At hearing he stated that his parents had no income and he had no job in China.
When prompted by the Tribunal as to what was in his written statement he stated that his family [did a work task]. He stated that his family’s land and business were taken from them and no compensation was paid. However when asked when this had taken place he gave several different years. He claimed at hearing this was because the family was bullied as they were not rich or powerful and China was corrupt.
In his statement he said the land was taken as his family were Christian. When this was put to him he changed his evidence and agreed that this was because they were Christian.
In his oral evidence he said that his parents had to pay a fine for being Christian and nothing else happened to them. The Tribunal put to him that in the statement he said they were detained; his father was tortured and died in 2002. He then changed his evidence to state that his father died over ten years ago and his mother died while he was in Australia.
The applicant at hearing did not mention being a Christian as being a reason for fearing return to China. He repeatedly said that he would be looked down upon and bullied as he did not have a job. When the Tribunal pointed out that he listed his occupation as [Occupation 1] he stated at first that this was correct and then that [it was not serious work].
When the Tribunal pointed out that in his statement he said he had been detained and arrested he agreed that he was detained. He said he was detained once and paid a fine. He was unable to give any further detail. In his written statement he claimed he was arrested, charged and detained twice. He listed his arrests in his application for protection as happening in December 2009 and October 2014.
When the Tribunal asked when he was detained at hearing, he stated this was a long time ago and he could not remember. The Tribunal does not accept that someone who had suffered the trauma he described in his written statement would forget all details of when their parent died at the hands of authorities or the circumstances of his own detention.
He could not provide any persuasive details of any commitment to Christianity. When asked, he said he was a Christian but “did not follow through”. He gave vague evidence of a church in China and in Australia. He was not able to provide any address or information and stated that nothing happened at a service beside a sermon which he could not remember. The Tribunal provided the applicant with many opportunities to explain why he was fearful of the authorities and returning to China. He could not provide any convincing detail of why he could not return.
He could not describe events in any persuasive way. When pressed he explained that he did not want to return as he is now used to living in Australia. He stated that he would be looked down upon as he would not have a job. When it was put to him that he listed employment in China, he responded that he had worked and then changed to say it was [it was not serious work].
He could not provide any cogent details about his family business being taken over. He did not describe any dates or action taken by him or his family against local authorities.
The applicant claimed in his written statement that he was detained, tortured and monitored due to his religion and attendance of family gatherings in China. The Tribunal does not accept that if the authorities had this level of interest and concern about his activities that he would have been able to leave China on his own passport. When this was put to him he responded with words to the effect that he had help from a friend however he was not able to expand in any persuasive way on who provided that help and how it helped him secure exit visas and travel through China’s international airports without detection.
Due to him being able to exit on his own passport the Tribunal is not satisfied that the applicant is a person who the authorities in China are interested in.
The Tribunal spent some time at the hearing attempting to clarify his confused evidence in relation to his claims and fear of returning to China. At hearing he did not appear to know or remember parts of his written claim. At hearing he stated his parents died after he came to Australia. It was only when prompted of what was in his written claims that he retracted that and stated that his father died over ten years ago. At hearing he responded repeatedly that he would be bullied as he did not have a job. It was only when the Tribunal asked him about his written claims about being a Christian that he agreed he was a Christian but was unable to give any detail or cogent evidence on the events of harassment, torture and detention that he claimed led to his father’s death.
After considering all the evidence before it the Tribunal is not satisfied that the applicant is a committed Christian or that he would attend a family church if he was to return to China. The Tribunal does not accept that he would put himself and his family at risk of harm due to any commitment to the family Church.
The Tribunal is not satisfied that he is of interest to the Chinese authorities due to being a part of the family church. Further for the same reasons the Tribunal is not satisfied that he is at risk of harm due to any perceived association to or with his parents or [Mr A].
The applicant gave evidence at hearing of his family having a [business] and land which was confiscated. In his written statement he claimed this was because his family were Christian. At hearing he stated that land was taken and no compensation or other land was allocated. He did not provide any persuasive or convincing detail of when or how the confiscation happened. He did not provide any detail of his family protesting or coming to the attention of authorities except to say they were bullied. He provided no evidence of being a petitioner or protesting against corrupt officials. He at first said this happened in 2014 or 2015. Later he stated about three years ago, he then stated before 2013. The Tribunal does not accept that the applicant would be of interest to the authorities in relation to confiscation of land or a business.

The applicant provided to the Tribunal and Department a copy of his passport. The passport was issued in 2014. He confirmed travelled on this passport and exited China to come to Australia on the passport. The Tribunal finds that his ability to exit China on his passport when coming to Australia indicates that he is not of interest to the authorities and is not in danger if he was to return to China.
The Tribunal, on the evidence and information provided does not accept that the applicant will be deprived of his basic human rights for any of the reasons clamed if he returns to China. The Tribunal is not satisfied that the applicant is at risk of serious harm or significant harm for any of the reasons claimed if he goes to China now or in the reasonably foreseeable future.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal finds that there is no real chance that he will suffer serious harm for reason of his membership of a particular social group, religion, political opinion or any other grounds under the Refugees Convention if he goes to China now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution and is not a refugee as defined. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a).
Does the applicant meet the complementary protection criteria?
The Tribunal must also consider whether the applicant meets the criteria for complementary protection.
A person meets the complementary protection criteria if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
‘Significant harm’ for these purposes is exhaustively defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
Section 36(2)(aa) of the Act refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
For reasons given above in relation to ‘real chance’, the Tribunal is not satisfied there is a real risk of any of the kinds of significant harm set out in s.5(1). The Tribunal is not satisfied 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 he will suffer significant harm. He therefore does not satisfy s.36(2)(aa).
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a). Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Catherine Carney-Orsborn
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 6506

25 September 2019

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