1615121 (Refugee)

1615121 (Refugee) [2020] AATA 5704 (14 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1615121
COUNTRY OF REFERENCE:                   China
MEMBER:Louise Nicholls
DATE:14 December 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 14 December 2020 at 11:40am
CATCHWORDS
REFUGEE – protection visa – China – religion – mainstream Protestant Christianity – leading role in an underground church – validity of s.438 certificate – internal deliberations of the Department – printing and copying of Christian materials – credibility concerns – church attendance in Australia – daughter’s health condition – minor to moderate level of autism – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 438
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIBP v SZMTA; CQZ15 v MIBP; BEG15 v MIBP [2019] HCA 3
MZAFZ v MIBP [2016] FCA 1081
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

The applicants are husband and wife and they both claim they are citizens of the People’s Republic of China (China). The applicants arrived in Australia [in] June 2015 as the holders of visitor visas.
The applicants applied for protection visas on 26 August 2015. They both made claims for protection. They provided:
·Copies of extracts of the applicants’ passports;
·Statutory declaration made by the applicant husband on 26 August 2015;
·Photographs showing large groups of people in a church setting;
·Two certificates of church membership with [Church 1] dated 7 February 2016 and 31 July 2016.
The first named applicant (the applicant husband) attended an interview at the Department of Immigration (the Department) on 26 July 2016.
On 1 September 2016 a delegate of the Minister for Immigration refused to grant protection visas under s.65 of the Migration Act 1958 (the Act) because the delegate was not satisfied that the applicants met the requirements for that visa.
This is an application for review of that decision and it was made on 19 September 2016. The applicants provided further documents, including several group photographs in different settings and media articles on Christianity in China. He also provided a letter from [Mr A], Chairman of the Executive Committee of [Church 1].
The applicants appeared before the Tribunal on 22 August 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicants gave evidence about their respective backgrounds, migration history, claims for protection and current circumstances.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION
The issue in this case is whether the applicant meets the refugee criterion and, if not, whether he is entitled to complimentary protection.
The relevant law is set out in Attachment A.
Non-disclosure certificate
A preliminary issue for consideration concerns the issue of the certificate restricting disclosure of certain information in the Departmental file pursuant to s.438 of the Act.
The Tribunal has received a Departmental file [number].The delegate has placed a non-disclosure certificate on the Department’s file pursuant to s.438(1)(a) of the Act. The reason given for the restriction of information in folio 91 is because it relates to internal deliberations of the Department.
The material in this folio is a Departmental checklist recording the names of the applicants and confirmation that they have provided their photographs as personal identifiers and that they been given Departmental fact sheets.
In considering the validity of this certificate the Tribunal has considered recent case law on the issue. In MZAFZ v MIBP,[1] the Federal Court held that the Tribunal had erred in treating a non-disclosure certificate as valid where the only reasons cited in the certificate as contrary to the public interest were ‘internal working documents’. This was held never to have been a sufficient basis for public interest immunity whether at common law or under statute, and did not identify the harm that could be done to an agency by their disclosure. At best, the words ‘internal working documents’ disclosed a reason that could form part of the basis for a claim, but not the basis of the claim itself.[2] On this reasoning ‘internal deliberations’ would also not be a sufficient basis for public interest immunity.
[1] MZAFZ v MIBP [2016] FCA 1081 (Beach J, 7 September 2016).
[2] MZAFZ v MIBP [2016] FCA 1081 (Beach J, 7 September 2016) at [37].
The majority of the High Court in MIBP v SZMTA; CQZ15 v MIBP; BEG15 v MIBP [2019] HCA 3 held that there is an obligation of procedural fairness to disclose the fact of the non-disclosure certificate to the applicant in the review, however, a breach of that obligation will result in jurisdictional error only where the breach is material (that is, the applicant is deprived of the possibility of a successful outcome).[3]
[3] MIBP v SZMTA; CQZ15 v MIBP; BEG15 v MIBP [2019] HCA 3 (Bell, Gageler, Keane, Gordon and Nettle JJ, 13 February 2019) at [2], [29]-[30] and [45] per Gageler, Keane and Bell JJ.
The Tribunal disclosed the existence of the certificate. The Tribunal outlined the nature of the material it purported to restrict. No submissions were made on the issue of validity and the Tribunal has proceeded on the basis that the certificate is not valid.
The Tribunal put it to the applicants that there is no information in the document which is relevant to the review or that deprives them of the possibility of a successful outcome.
The information in the identified folios is not relevant to any material findings of fact in this review and, in any event, the Tribunal is of the view that the certificate is not a valid certificate for reasons set out above.
Background
The applicant husband is [age] years old and was born and grew up in [Village 1] in the Fuqing City District. His parents are alive and are rural farm workers. The applicant attended primary and middle school in his home village and then attended senior high school in [Town 1] where he lived in the school dormitory and finished school when he was about 19 years old.
He claims that after senior high school he attended [Institute 1] for three years studying [Discipline 1]. When asked about the subjects studied, he claimed that he studied [a number of specified] subjects. The applicant stated that he intended to work in [Industry 1] in China.
He claimed after he completed the course in 2009, he started work in a [store] owned by his cousin in Guangdong. He claimed that his cousin wanted to introduce streamlined processes for [his business] and the applicant was engaged in [specified task]. He stated that he worked in the business to help his cousin. He also stated the economic situation was not good and it was not easy to get a job.
The applicant husband has two sisters; his older sister is married and living in Fujian in another rural village. His younger sister is a permanent resident of Australia and was sponsored by her Australian citizen husband.
The applicant husband and wife married in China in 2012. The second named applicant, the applicant wife, was born and grew up in another rural village in Fujian Province. The applicants met through an introduction. They have one [age]-year-old daughter living in China with her maternal grandparents and she attends the local school near the grandparent’s home. They also have a [age]-year-old daughter living in Australia with the applicants.
Country of reference
The applicants both claim they were born in Fujian Province, China and are citizens of China. They each provided a copy of their Chinese passports which were issued in Fujian Province; the husband’s in 2007 and the wife’s in 2015. The applicants have consistently claimed that they are of Chinese nationality, they spoke Mandarin fluently and were familiar with the geography and culture of Fujian Province, China.
Taking into account the available evidence, and noting there is no issue as to identity or nationality, the Tribunal is satisfied that the applicants are citizens of China and that China is the receiving country for the purpose of s.36(2)(aa) of the Act.
What are the applicants’ claims?
The applicants’ claims are set out in the statutory declaration made on 26 August 2015 which accompanied the application for protection.
The applicant husband discussed his claims for protection with the delegate at an interview on 26 July 2016.
The applicants gave oral evidence concerning their claims at the Tribunal hearing held on 22 August 2019. The Tribunal has reviewed a recording of the hearing.
Essentially the applicants claim that the applicant husband had a leading role in an underground Christian church in China and that if he and his wife return, they will face serious harm from Chinese authorities for reasons of his previous activities.
The applicant husband claimed that from 2011 to 2015 he had been involved in a Christian underground church in [Town 2] and had from 2013 to 2015 been involved in a church group which arranged the printing and copying of Christian materials. When he and his wife were visiting Beijing in 2015, they found out that the print shop used by the church group had been raided by police. They remained in Beijing until they could arrange their overseas visit to Australia. The applicant husband claimed that after they left China, they learned other churchgoers had been arrested, that police had gone to his home village and that he was regarded as one of the leaders of an illegal organisation. His parents and sister were also subjected to investigation.
The applicants also claim since they have been in Australia, they have been attending [Church 1].
Assessment of claims and evidence
Have the applicants been attending a Christian church in Australia?
In the statutory declaration made on 26 August 2015 the applicant husband stated that since he and his wife arrived in Australia, they have regularly attended [Church 1].
In the interview with the delegate the applicant husband stated that he and his wife attend [Church 1]. He did not know what congregational church meant; he thought it meant a lot of churches. He claimed he was introduced to this church by a person he met at a railway station in June 2015.
At the Tribunal hearing held on 22 August 2019 the applicant husband stated that after they first arrived in Australia, they met a church sister who introduced them to [Church 1] in 2015. The Tribunal put it to the applicant that they lived in the suburb of [Suburb 1] which appeared to be a long way from [Suburb 2, where Church 1 is situated]. He stated he did not know how far away it was, but they attend the church every week. His daughter had not been baptised at the time of the hearing.
The applicant named some of the office bearers of the church but was unsure of the name of the person who gives the sermon and conducts the Sunday service. He stated that he thought that some of the pastors would recognise his face and would recall that he attends regularly. When asked why he did not ask them to come and give evidence on his behalf he stated he trusted in God.
The Tribunal referred to the applicant husband’s certificate of church membership which stated he united with the church [in] July 2016. He stated the applicants joined the church in 2015 but they had to complete six months of attendance before becoming members.
The Tribunal notes that the applicants provided a number of photographs said to be of church activities undertaken by the applicants. The photographs appeared to show groups of people singing as well as groups in different social and church settings.
The Tribunal put it to the applicant that [Church 1] was a mainstream Protestant church and that it appeared that attending a church in Australia would not cause any problems for the applicants if they returned to China. The applicant husband referred to his Christian activities in China as the source of his claimed fear of serious harm.
The applicant wife stated that she goes to church regularly and takes her daughter. She claimed she had been attending church since 2015 and was baptised in January 2016.
The applicant husband stated that he had not asked any of the church members or pastors to give evidence on his behalf but the applicant wife gave evidence they made that request in August 2019 and were awaiting the outcome of discussions regarding their request in September 2019. The Tribunal accepts the wife’s evidence that they made a request to church officers but notes that no further documents were provided after the hearing and there was no request for further evidence to be given by any witnesses. In these circumstances and without any other explanation, it considers that the church officers decided not to provide any further evidence on behalf of the applicants.
Notwithstanding the absence of oral evidence or statements from pastors or other members of the church, the Tribunal accepts that the applicants have attended [Church 1] on a regular basis since at least early 2016 and the photographs provide support their evidence that they are accepted as members of the church congregation. The Tribunal notes the church documents provided by the applicants and accepts that the applicant wife was baptised [in] February 2016 and united with [Church 1] on that date, and the applicant husband was united with the church [in] July 2016. The Tribunal notes that the applicant husband displayed a level of knowledge of Christian practices and beliefs which was consistent with regular attendance at [Church 1] from the time the applicants claimed they started attending in 2015.
The Tribunal considers the applicants first attended the church solely to strengthen their refugee claims, however, it does not consider their conduct should be disregarded pursuant to s.5J(6) of the Act. It considers that the applicants have gradually formed social attachments and relationships with church members and pastors, which indicates that there are multiple reasons for attending church aside from strengthening their refugee claims.
Was the applicant a member of an underground Christian church in [Town 2]?
In his statutory declaration made on 26 August 2015 the applicant husband claimed that in 2011 he was working in his cousin’s [company] in Guangdong. When he was home for a holiday in his home village in Fujian, he met an old friend who offered to assist him in obtaining [materials] for his cousin’s business at a good price. As a result of a business transaction with this friend, he and his cousin employer were cheated out of a large sum of money.
As a result, he felt he could not return to work at his cousin’s company and instead moved to a town in Fujian called [Town 2] where he found a job at a [different company]. [Town 2] is located about 250 kilometres from the applicant’s hometown and is [in] a relatively remote area. The applicant husband claimed that he found this job through another friend, [Mr B], who had previously lived in his hometown but now lived in [Town 2]. When the applicant husband moved to [Town 2], he shared the house his friend occupied in [Town 2].
The applicant husband claimed that [Mr B] was a Christian and he evangelised to the applicant husband and helped him build his confidence and understand Christian love. He assisted the applicant husband to repay monies owed to the applicant’s cousin.
He attended Christian meetings with [Mr B] from May 2011 and found the other church members to be kind. From then on, he regularly attended Christian meetings with [Mr B] and claimed he was baptised in August 2011. The church group he attended was an unregistered church group called [Church 2]. [Mr B] told him that the official (registered) church was supervised by the authorities and had no freedom of religious opinion.
Meetings were held at the homes of church members and [Mr B]’s house was one of the meeting places. [Town 2] was in an out of the way area in Fujian which was not scrutinised by authorities and the unregistered church group developed smoothly over the years.
In June 2013 the church group established a promotions group to make or print Christian materials including Bibles because new Members needed these materials. He was appointed leader of the group because he had a university education. He rented a ‘copy and print shop’ which was the cover to produce Christian materials. [Ms C], a member of the church group looked after the shop during the day and the applicant organised the printing of materials on weekends or in the evening. The applicant claimed he organised the making or printing of Christian promotion material distributed among Christians of the unregistered church in [Town 2].
In the interview with the delegate the applicant repeated his claims that his friend in [Town 2] was a Christian, however, the applicant stated he lived with him for many months and did not know he was a Christian until he took him to a church gathering on 1 May 2011. After that he regularly went to church gatherings and was baptised in [Town 2] in August 2011. The applicant later became the leader of a promotions group which produced flyers which talked about God and Christian beliefs.
At the Tribunal hearing the applicant husband stated that he gone to [Town 2] in 2011 because he did not want to return to his work in Guangdong after his friend cheated the applicant and his cousin. He told the Tribunal that he had a friend in [Town 2].
When asked to give some details about the town of [Town 2], he stated it was a town under the jurisdiction of [a specified] part of Fujian. He stated it has a very large green area and a large forest. When asked if there was a river near the town, he appeared a bit disconcerted and stated he did not know what it was; he thought it was a small waterway. He could not provide any other description of the town. The Tribunal considered he did not appear to display a depth of knowledge or familiarity with the town of [Town 2] consistent with his claim that he lived there for at least four years.
The Tribunal questioned him as to why he decided to work in [Town 2] after he left his work in Guangdong. [Town 2] was 250 kilometres away from his hometown. He claimed after he left his work in Guangdong, he went back to his hometown looking for a job, but his friend [Mr B] told him he knew someone who had a [business] in [Town 2]. He told the Tribunal he had experience in [product] and that is why he was interested in this work. He had experience in [the manufacture of specified products]. The Tribunal put it to him that this work did not appear to be [Discipline 1] work but seemed more like [Discipline 2]. He claimed he was only involved in [a specific area of the work].
The Tribunal then asked him about his marriage. He stated he and his wife married in 2012 in his hometown and she remained there while he worked in [Town 2]. They had their first child in [month, year]. He claimed he returned to his hometown on some weekends and holidays. He claimed that he returned to his hometown by train and the journey took three to four hours and he had to transfer in a main city. However, he was quite vague when asked about the details of his travels. The applicant wife stated that the applicant husband came home on holidays.
When asked why his wife could not join him in [Town 2] he stated his parents were not well and she needed to care for them, however, the Tribunal pointed out that he had earlier claimed his parents worked as rural farm workers. He claimed that the work they did was not very hard or tiring; they just farmed the land in front of their home.

After he was deceived by his other friend, [Mr B] introduced him to [Town 2] and when he lived there, [Mr B] preached the gospel to him. He claimed after he was tricked he was very hateful and [Mr B] told him about God’s love. In the beginning he did not know anything but found out bit by bit. When asked to be more specific about his discussions with his friend or to give examples of how he gained further knowledge he stated his friend told him things about God’s love.
After those discussions his friend helped repay his debt and the applicant decided he wanted to know more about God. He observed that the brothers and sisters of the church were happy, and he felt at home when he attended the gatherings.
He claimed he first started attending gatherings in May 2011 at [Mr B]’s home and other homes. He described it as a small group of people praying and singing hymns. They sang different songs in different gatherings. He stated some of the lyrics and songs may be the same as the church he attends in Sydney. After singing hymns they would read one verse or two verses from the Bible and discuss and share understanding.
The Tribunal put it to him that country information indicated that there were many registered and unregistered church groups and groups of family and friends who study the Bible at home in Fujian Province. Their presence has generally been tolerated in Fujian.
He stated the registered church is led by the government and only says what is allowed by the government; in his church God is the top priority. He stated he had never been to a government church, but this is what he has been told by others from his church. The Tribunal asked him what was different in the teachings of the registered church to the family church. He stated he had never been to the registered church, so he did not know. In his church God is the leader.
The Tribunal put it to him that the country information on Fujian Province indicates that there was significant movement, and overlap, between registered and unregistered church congregations.[4] He stated he was not aware of that.
[4] DFAT Thematic Report on Fujian Province 16 December 2016 p.3.10
The Tribunal has carefully considered the applicant husband’s evidence and while not inherently unlikely, the Tribunal is not satisfied that the applicant moved to [Town 2] in 2011, lived there for four years and attended a Christian family church while he lived there.
He only had a surface knowledge of the location and geography of the town of [Town 2] If he had lived in [Town 2] for four years and regularly travelled to and from his home village the Tribunal would expect him to be able to give a more detailed description of the town and how he travelled home on holidays or weekends.
The Tribunal does not accept that the applicant lived in [Town 2], a small rural town [in] Fujian, while the applicant wife lived with his parents in their home village. It does not accept the explanation for the couple living separately following their marriage in 2012.
The manner in which the applicant husband gave evidence regarding his life in [Town 2] had a rehearsed quality and he only recounted those matters which had been included in his written statement without any further contextual detail or explanation about his work, his day to day life or other factors which would support his claim that he lived in this remote area of Fujian Province from 2011 to 2015.
Was the applicant the leader of group within his church producing Christian materials?
In the applicant’s statutory declaration, he stated that in June 2013 [the family church in Town 2] decided to establish a promotion group to make, print or copy Christian materials including Bibles. As he was one of the few members who had graduated from university he was appointed as the leader of the promotion group. He stated in July 2013 he rented a shop in town which appeared to be a copy or printing shop. He claimed the shop was the secret working place of the promotion group. A member of the family church looked after the shop during the daytime. In the evening or weekends, he organised members of the promotion group to secretly make or print Christian teaching materials.
The applicant continued in this role from 2013 to 2015 and the materials were widely distributed amongst Christians of the underground church in [Town 2].
In the interview with the delegate the applicant husband stated that he became the leader of the promotions group within the church and preached the gospel. He stated the team would make flyers telling about God being the creator of everything. The flyers also stated that the Old Testament has 39 verses and the new Testament has 27 verses. The Old Testament talks about God’s plan and the New Testament about how God’s plan came out and how people can pray to God, be baptised and how to die and be resurrected to become God’s sons and daughters.
At the Tribunal hearing he claimed he feared he would be arrested if he returned to China because he was the leader of a promotion team in his family church. He claimed that the members of his church were not well educated and because he had been to university and was good at sorting out information, he had been responsible for producing materials in a rented shop in [Town 2]. He explained that the group copied and made pamphlets and booklets and gave those materials to new members of the church.
When asked to describe the nature and contents of these materials he stated they introduced God and talked about humans and sinners. The pamphlets talked about the crucifixion of Jesus and introduced something about the Bible. The pamphlets also provided some information about preachers in other areas. He stated he sorted this information using his computer.
The Tribunal does not accept that the applicant lived in [Town 2] and was a member of a family church in [Town 2] for reasons set out above. It follows that it does not accept that he was the leader of a promotion team within a family church in [Town 2]. Further the applicant husband’s description of his role within the claimed promotion team and the nature of the materials produced was limited and lacked plausible detail.
Did the applicants leave China fearing they would be arrested?
In the statutory declaration the applicant husband claimed he followed his wife to travel to Beijing during the public holiday [in] May 2015. He claimed his wife was visiting her friend [Ms D] and touring Beijing. He claimed he was suddenly informed by his friend [Mr B] that the shop which was the secret working place of their promotion group was raided by police on [an] evening [in] May 2015. The police found Christian teaching materials in the shop and as a result the operator of the shop and her boyfriend were arrested, and the applicants were advised to remain in Beijing for the time being.
He stated that his wife was scared and asked her friend [Ms D] to organise their trip overseas. The applicant husband hesitated whether he should leave China but learnt from [Mr B]’s cousin that [Mr B] had also been arrested and some Christians were in trouble. In such a dangerous situation he made his mind up to leave China with his wife from Beijing [in] June 2015.
He stated that after he left China, he learned that police went to his hometown to investigate his illegal activities and that he was regarded as one of the leaders of the illegal organisation. He claimed his parents and sister were investigated by the Public Security Bureau (police).
At the interview with the delegate the applicant husband told the delegate he feared being arrested if he returned to China because he was the leader of a team in the family church.
He claimed that while he and his wife were in Beijing church members were arrested after a raid on the church. He claimed church documents were discovered in the drawer of a desk in the print shop. He claimed that he was persuaded to leave China when his friend was arrested [in] May 2015.
The applicant did not know if there was a warrant for his arrest.
He stated that his wife’s friend [Ms D] arranged for the visas to Australia and bore all the costs. He and his wife departed China through Beijing airport without any difficulties.
At the Tribunal hearing the applicant husband stated that the applicants arrived in Australia [in] June 2015 by air. They left China from Beijing International airport [in] June 2015 and passed through customs and border protection at the airport.
The applicant’s passport was issued in 2007. He applied for the passport because a friend and classmate suggested they apply together and go overseas. However, he did not use the passport to travel until June 2015 when he left China.
The applicant husband claimed that the applicants went to Beijing for a holiday and while they were there, they were informed that police had raided one of the places in which they gathered [in] May 2015 and somebody had been arrested. They stayed in Beijing and found out their friend [Mr B] had been arrested.
He stated that his wife’s friend [Ms D] helped them obtain visas to leave China. He claimed that [Ms D] did everything for them including filling out the application form and providing passport photos and their marriage certificate with their visa applications.
When asked about his intention in obtaining the visa he stated that, at that time, church people were being arrested and he thought he would get caught so he arranged the visa grant and their departure.
The Tribunal pointed out that he and his wife had obtained business visitor visas which only covered a short period of time in Australia. The Tribunal asked him if they intended to visit for a short time and then return to China. He claimed he did not know the period of time the visa was for and when the Tribunal pointed out that the length of time is set out on the visa itself, he stated that [Ms D] did not tell them about that. He claimed he only saw his passport on the day he left China.
He claimed that [Ms D] purchased tickets and made their departure arrangements; he thought she booked return tickets. The Tribunal put it to him that it was difficult to accept that he did not have a particular intention at the time he obtained the visa as travelling to Australia was a significant step for the applicants. He would have either intended to remain for a visit or had intended making another application after he arrived in Australia. He stated he was only thinking about leaving China and not returning. He claimed that before [Ms D] had obtained the visas, he did not know they were going to Australia. The Tribunal put it to him it was difficult to accept that he did not know they were going to Australia or that he had not thought about what they would do once they arrived in Australia. He stated that he intended to watch the situation, if the government did not find out about his involvement and if things got better, he intended to make further plans.
Once he was in Australia a sister of the church in Australia gave him the number of a migration agent and he applied for a protection visa.
The applicant was asked how he and his wife were able to leave China without difficulty if people in his church group had been arrested. He claimed that he had not been reported to authorities at that point. When they arrived in Australia, they called their family to say they had arrived safely and were told police had gone to his family home in his home village in Fujian.
The Tribunal pointed out that the Chinese police and border authorities have a sophisticated system of monitoring, and that police and border authorities use laptops and computers to detect persons of interest. If he had been of adverse interest, he and his wife would not have been able to depart China through an international airport. People leaving China are checked very carefully and those checks were in place in 2015. The information indicates that the applicants would not be able to leave if the applicant husband was wanted by police[5].
[5] DFAT County Information Report People’s Republic of China 3 October 2019 5.40 and 5.41; DFAT County Information Report People’s Republic of China 3 March 2015 5.16
A 2014 Canadian report[6] on the implementation and effectiveness of information sharing in China noted:
The Chinese economist writing in Open Magazine states that ‘as early as 2002, Cisco had developed Policenet, an administration system’ for the Ministry of Public Security [also known as the Public Security Bureau, PSB] (Open Magazine 17 Feb. 2010). The article goes on to say that [w]ith Policenet, public security officials can search out any Chinese citizen's photograph, work history, family background, political leanings, Internet history, and at least 60 days of emails. Carrying it around is also convenient: police just scan an individual's identification card and query the database on the spot, obtaining all the information about the individual they need. (ibid.)
…..Offices responsible for entry and exit documents, whatever their location, have completely computerized their processing operations as well as the issuing of passports on an on-demand basis. Border ports have implemented completely computerized inspection procedures and integrated operations on a nation-wide network. (18 Feb. 2011)
[6] CHN104762.E China: The Public Security Bureau (PSB) Golden Shield Project, including implementation and effectiveness; Policenet, including areas of operation; level and effectiveness of information sharing by the authorities (2010- February 2014) Research Directorate, Immigration and Refugee Board of Canada, Ottawa
The applicant husband claimed that the church members had not told police about him and he was not present when the arrests took place.
The Tribunal put it to him that the reason he was not questioned and detained at the airport was because he was not a person of interest to police and none of things he had claimed had occurred. It noted that his wife had obtained a passport [in] 2015 several months before they claimed that people were arrested in [Town 2]. This suggested they were planning to leave at an earlier stage some time before they arrived in Beijing. He stated that his wife’s passport had expired, and she obtained a new passport [in] 2015. He claimed she needed the passport to travel to Beijing. The Tribunal put it to him that the country information indicates that the only requirements for internal travel were an identity card and household registration (hukou).[7]
[7] Immigration and Refugee Board of Canada 2011, CHN103770.E China: Whether state authorities use second-generation Resident Identity Cards (RICs) to track citizens, 11 July
He claimed you needed a passport for duty free shopping and there were many places where you needed your passport. The Tribunal does not accept this explanation. There is no evidence or country information indicating that a Chinese national requires a passport to visit Beijing.
The Tribunal put it to the applicant husband that although he claimed he only decided to leave after [Mr B] was arrested, the applicants’ business visitor applications were lodged four days before that arrest. He stated that [Ms D] had handled their visa applications and they did not know when the visas were granted.
As he appeared to misunderstand the issue, the Tribunal put it to him that he told the delegate that after [Mr B] was arrested [in] May 2015, they decided to leave China and then left from Beijng [in] June 2015. However, their business visitor visa applications were lodged on [date] May 2015, four days before the applicant husband heard his friend was arrested.
At this point, the applicant’s representative interrupted and pointed out that in his written statement, the applicant husband stated that the applicant wife was worried after a church member was arrested [in] May 2015 and she asked [Ms D] to organise their trip overseas. However, the applicant husband was hesitant, and it was only when [Mr B] was arrested [in] May 2015 that the applicant husband made up his mind to leave China. The applicants’ representative stated that the written statement was not necessarily inconsistent with the evidence that the business visitor visa applications had been made on [date] May 2015.
The applicant wife gave evidence that she and her husband were in Beijing in May 2015 and staying with her friend [Ms D]. Her friend had previously been a neighbour in Fujian, had studied [Discipline 3] and was [working] in Beijing. The applicant wife became scared when she found out the couple from the printing shop had been arrested. Her friend [Ms D] helped the applicants get visas.
The applicant wife stated she did not know what sort of visa her friend obtained for them and she did not ask. The Tribunal pointed out that the visas granted were business visitor visas and asked the applicant to explain how her friend would have obtained those visas on their behalf when there was no evidence of any business purpose for the visit. She was unable to answer this question or give any explanation. The Tribunal put it to her that her evidence that her friend did not explain the type of visa the applicants were granted was difficult to accept.
The applicant wife stated that she and her husband married in 2012 and the place of marriage on their marriage certificate was a town near her husband’s home village. She told the Tribunal that she lived in her husband’s village until she left for Beijing [in] April 2015. She claimed her husband was working in [Town 2] in [specified work] and came home to the village during holidays. She stated there were no similar jobs in neighbouring villages. She stated she did not join him because they had not been married for a long time and she looked after his parents and that it was the common thing to do. She claimed that after they left China the applicant husband’s sister checked up on his parents.
The Tribunal considers that the applicants had planned to leave China some time before they travelled to Beijing.
The applicant wife renewed her passport [in] 2015 and the applicants denied that the reason was because they planned to leave China. However, the Tribunal found that they could not give a plausible explanation for having the applicant wife’s passport renewed. The evidence indicates that they departed China [number] months after the passport renewal. The Tribunal considers the renewal indicates that they were planning to depart China before they visited Beijing in May 2015.
The couple claimed to have been married in 2012, had their first child in [year], but claimed that generally they lived separately other than for occasional contact when the applicant husband returned to his home village. However, the couple suddenly decided to visit Beijing together for a holiday and claimed they stayed with a friend of the applicant wife who coincidentally happened to be able to urgently arrange business visitor visas for travel to Australia during their visit to Beijing. The Tribunal does not consider the sequence of events and the apparent ease with which their visa applications were granted is consistent with their claims that they only decided to leave China after [Mr B] was arrested.
Despite claiming they were visiting Beijing for a holiday the applicants were able to provide their passport photographs and marriage certificate to [Ms D] for the purpose of applying for business visitor visas. This further indicates that the couple were planning travel to Australia before they arrived in Beijing.
The Tribunal does not accept the applicant husband’s evidence that they did not know that [Ms D] was applying for visas for Australia. The evidence indicates that the couple were staying with [Ms D] for a month and that she was a good friend of the applicant wife. The Tribunal notes that the applicant husband’s sister lives in Australia and considers this indicates that there was some knowledge and familiarity with Australia. The Tribunal considers their knowledge of Australia through the applicant husband’s sister and their day to day personal contact with the applicant wife’s friend [Ms D] for over a month indicates that their evidence that they had no idea that [Ms D] had obtained visas for Australia is not reliable. This also supports the finding that the applicants had decided to travel to Australia before they made their way to Beijing in May 2015.

The Tribunal has made findings that the applicant husband did not join a church group in [Town 2] and was not the leader of a promotions group within that church. It follows that the Tribunal does not accept the claims that the applicants departed China because police in [Town 2] raided the printing shop which the applicant husband claimed he had rented to produce Christian materials or that church colleagues were arrested in May 2015. This conclusion is supported by the Tribunal’s findings that the applicants had planned to depart China for Australia some months before they travelled to Beijing.
It is also supported by country information which indicates that if the applicants were of any adverse interest to Chinese authorities, they would not have been able to depart China in June 2015.
The applicants claimed the reason they were not questioned, stopped at the border or detained was that the Chinese authorities were not aware of the applicant husband’s involvement in the church at the time they left. However, the Tribunal does not accept this explanation.
They claimed that the first arrests of church members and raid on the print shop took place [in] May 2015, but the couple left [number] weeks later, that is, [in] June 2015. This is a significant period of time after the arrests were allegedly made and church members questioned. The Tribunal also notes the applicant husband’s claim that he had rented the print and copy shop which had been raided. If this was true and their was an active and ongoing investigation, his involvement would have become known to investigators before the applicants departed China.
Further their explanation is speculative. The applicants would not have known whether their names had been given to police. Despite claiming that their names had not been given to the police at the time of their departure, they also claimed that when they called their relatives shortly after their arrival in Australia, they were told police had gone to their home village in Fujian (250 kilometres from [Town 2]) and questioned their relatives. If this was so, police must have obtained their names during the claimed investigation of the church group and, given the timing of their visit to the home village it must have occurred before or around the time of their departure from China. This evidence is not consistent with their claim that their names were not known to police at the time of their departute.
The Tribunal considers their explanation for the ease of their departure appears to have been contrived to counter the country information on the sophisticated and effective departure controls employed by Chinese authorities and the Tribunal does not accept their explanation.
Does the applicants’ youngest child have health problems?
The applicant wife claimed that in addition to her fears that her husband will be arrested if they return to China, she fears that she and her daughter will face difficulties due to her health problems. She spoke quite emotionally about her concerns for her daughter.
She explained that her youngest daughter was born in Sydney and she may have a mild level of autism. She was concerned about her daughter from the time she was a baby. She has been to many doctors and clinics and has been told that her daughter may have a minor to moderate level of autism. She found this very difficult to accept and has suffered a great deal of stress due to this advice. Her daughter has been attending childcare and speech therapy to help with her developmental issues. She stated that she had to wait until her daughter was older to get a firmer diagnosis.
She has not told the older generation about her daughter’s possible autism because in rural areas the situation for the family of a child who has problems in China is disastrous.
The applicant wife did not claim to have been a member of the family church or any other Christian group in China. She stated there had been a crackdown on Christianity in recent years. She claimed that if they return and her husband is arrested, then the situation for her and her daughter will be unimaginable.
She had found it difficult to attend some church meetings in Sydney and had received a visit from the pastor and his wife to talk about her daughter’s condition. They put it to her that she was lucky that her daughter’s IQ was normal and that she had no behaviour problems. They also told her that she could not expect God to intervene simply because she wanted that outcome.
There is no medical evidence before the Tribunal to confirm that the applicant’s youngest daughter has been diagnosed with mild to moderate autism. Nevertheless, the Tribunal accepts that the applicants have sought medical advice regarding their youngest daughter’s condition and that there is a possibility she may be diagnosed with autism spectrum disorder in the future. The applicants’ distress when discussing this issue was genuine and the Tribunal accepts that this issue has been a cause of significant stress and concern to the applicants.
Does the applicant meet the refugee criterion?
Taking into account the findings set out above and the country information referred to in this decision, and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant husband and the applicant wife return to China now or in the foreseeable future that each, or either of them, faces a real chance of persecution for reasons of religion, political opinion or membership of a particular social group.
For reasons set out earlier in this decision, the Tribunal does not accept that the applicant husband was a member of an unregistered Christian family church in [Town 2] between 2011 and 2015 or that he was the leader of a promotions group producing Christian materials for the family church between 2013 and 2015. It does not accept that members of the church were detained and arrested or that premises occupied by church members were raided.
The Tribunal does not accept that the applicants organised their departure from China to Australia to avoid serious harm by police or Chinese authorities for reasons of the applicant husband’s claimed Christian activities.
Accordingly, the Tribunal does not accept the claim that if the applicants return to China now or in the foreseeable future they will face a real chance of serious harm for reasons of the applicant husband’s claimed religious activities in China before he left for Australia. As it does not accept that the applicant husband was engaged in these activities it also does not accept that he would be perceived as having an antigovernment political opinion.
The Tribunal accepts that the applicants have been attending [Church 1] since 2015/2016 and that they have joined the congregation. They have attended church services and the photographs they provided suggest they participate in the social and cultural activities of the church.
The Tribunal does not consider that the applicant’s membership of, and attendance at, [Church 1] would put the applicants at risk of serious harm if they returned to China. The latest DFAT country report on China[8] notes that there are estimated to be over 100 million Christians (mainly Protestants) in China in both the registered and unregistered churches. DFAT reports that:
3.44 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. While practice of nonrecognised faiths or by unregistered organisations is illegal and vulnerable to punitive official action, it is, to some degree, tolerated, especially in relation to traditional Chinese beliefs. Nevertheless, restrictions on religious organisations vary widely according to local conditions, and can be inconsistent or lack transparency, making it difficult to form general conclusions.
….
3.77 In addition to state-sanctioned Catholic and (non-denominational) Protestant churches in China, SARA[9] historically permitted 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. Independent churches, otherwise known as ‘house’ or ‘family’ churches (for Protestant organisations), and ‘underground’ churches (for Catholic organisations) 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 participants/attendees.
3.78 There has been an increase in state control of both registered and unregistered churches in recent years, including targeted campaigns to remove hundreds of rooftop crosses from churches, forced demolitions of churches, and harassment and imprisonment of Christian pastors and priests (see Government Framework regarding religion). Some churches deliberately restrict their numbers to avoid attracting adverse official attention. Government officials are more likely to scrutinise churches with foreign affiliations, or those that develop large or influential local networks, and house churches are under pressure to ‘sinicise’ their religious teachings.
[8] DFAT Country Information Report on China 3 October 2019
[9] State Administration for Religious Affairs (SARA)
There is no country information indicating that attendance at a mainstream Protestant church in Australia would put a person returning to China at risk of serious harm on their return. There is no evidence that the church is regarded as an ‘evil cult’ in China[10].
[10] DFAT Country Information Report on China 3 October 2019 pp. 3.93-3.95
As the applicants have attended church in Australia, the Tribunal has also considered the situation for them if they wished to attend church on their return to China. The Tribunal considers that their initial motivation for attending church in China was to strengthen their refugee claims, but they have, to a certain extent, become involved in the congregation. The applicant husband stated that he thinks the pastors of the church may recognise him. The evidence indicates that the applicants are no more than ordinary attendees. Other than for photographs and the certificates of baptism and membership of the church there is no other evidence of the extent of their religious practices or beliefs.
When the applicant gave evidence about the unregistered church in [Town 2], to which he claimed he belonged, he was critical of the registered churches due to their perceived government control. The Tribunal has not accepted his evidence regarding his claimed membership of an unregistered church in China and considers his condemnation of the registered churches was contrived to support his claims that he attended an unregistered church in [Town 2]. When questioned about the registered churches he stated he had no knowledge of their practices or beliefs and was not aware that in Fujian Province there was some movement of members between the registered and unregistered churches.
The Tribunal considers that if the applicants returned to China they would return to live in Fujian Province and would be reunited with respective family members, in particular their eldest daughter. With respect to religious practice in Fujian DFAT observes:
3.36 DFAT assesses that individuals in Fujian have historically practised religion more freely within state sanctioned boundaries than in other parts of China, as long as practices do not challenge the interests or authority of the Chinese Communist Party. However, DFAT assesses religious control in Fujian has incrementally tightened, albeit from a looser base, in line with the rest of the country (See Government Framework regarding religion).[11]
[11] DFAT Country Information Report on China 3 October 2019
The latest UK Home Office report on Christians in China[12] has outlined the increase in restrictions on Christian churches in China since 2013, but notes that:
However, the situation for most Christians has not changed significantly, with the risk of treatment amounting to persecution for expressing and living their faith still being very low.
[12] UK Home Office Country Policy and Information Note China: Christians November 2019 p.2.4.12
The Tribunal considers that if the applicants returned to China and wished to attend a Protestant Christian church, they could attend a registered church in Fujian Province and would not face a real chance of serious harm. If they decided to attend an unregistered church the country information indicates that there are many unregistered churches in Fujian and while members of unregistered churches may be subject to greater restrictions than in the past, activists or leaders of these groups are subject to greater controls than ordinary worshippers[13]. As the applicants are ordinary worshippers and are not activists or leaders, the Tribunal does not consider that if the applicants attended an unregistered church in Fujian they would face a real chance of serious harm.
[13] DFAT Country Information Report on China 3 October 2019 p.3.79
At the Tribunal hearing the applicants raised the issue of their daughter’s possible autism diagnosis and how she would be perceived if they returned to a rural area of Fujian Province. In contrast to their other evidence, the Tribunal considers this evidence and their expressed concerns were genuine and heartfelt.
There is an increasing awareness of autism in China, but many problems continue to make it difficult for children and adults to access effective treatment and education. Country information indicates there is a significant stigma attached to physical and mental disabilities in Chinese society, including autism. Both physical and mental disabilities have been traditionally hidden away by families and seldom dealt with[14].
[14] How is autism treated in China? Braddick 1 February 2018, >
However, in a recent article[15] it is noted that:
Indeed, by the end of 2020, the government has said it aims to financially support 80 percent of children with autism. Last year, Xinhua reported that 36,000 autistic children from poor backgrounds now receive funding. Earlier this year, the government also released a new set of Regulations of Education of Persons with Disabilities, which require local governments to allocate funding and resources for education, awareness, and individualized education plans for people with disabilities.
Although autistic children and their families still struggle to navigate life with disability in China, the government’s pledge to invest more in public education and services offers the possibility of a better future. But ultimately, it is schools like Stars and Rain that currently offer real-life hope to both children and parents affected by disability in China.
[15] How is autism treated in China? Braddick 1 February 2018,
Recent reports[16] also indicate that the Chinese government has invested heavily in an epidemiological study on autism, signalling that autism is a priority of China and that greater resources will be provided to ensure affordable treatment and appropriate educational options. Research on treatment has introduced a comprehensive and moderately effective approach that includes education and training, psychotherapy and pharmacotherapy. In the realm of education, however, many problems remain, requiring joint efforts of the government and of other societal actors.
[16] Autism in China: Progress and challenges in addressing the needs of children and families Int Journal of school & Educational Psychology; vol 7, 2019 Issue 2; Addressing Autism Spectrum Disorders in China - Wang -January 2019 - New Directions for Child and Adolescent Development - Wiley Online Library
The Tribunal accepts that if the applicant’s daughter is diagnosed with autism spectrum disorder that the applicants may face difficulties in accessing effective treatment for their daughter, and she may face some stigma, in a rural community in Fujian. However, the Tribunal does not accept the applicants will face a real chance of serious harm due to their daughter’s condition. If they relocated to a larger city in Fujian they would have a greater chance of access to adequate education and treatment options. The country information indicates that the Chinese government has invested in research into treatment and education options for those affected by autism spectrum disorder, and that the future treatment options will be much improved.
The applicant wife claimed that if they returned to China, the applicant husband would be detained for his religious activities which would leave the applicant wife at risk of serious harm if she had to care for her daughter on her own.
The Tribunal does not accept this claim. Firstly, for reasons set out earlier in this decision, it does not accept the applicant husband will be detained if he returns to China. Secondly the Tribunal considers that the Chinese authorities have taken steps to provide resources for treatment and education and has invested a large amount of money to address the needs of autistic children. There is no evidence they would condone conduct which amounted to serious harm directed towards the applicant wife for reasons of her daughter having autism. Thirdly while members of the local community may stigmatise her daughter there is no evidence that they would inflict serious harm on the applicant or her daughter for this reason.
Accordingly, and for the reasons set out above, the Tribunal is not satisfied that the applicants have a well-founded fear of persecution for any of the reasons set out in s.5J(1)(a) of the Act.
Does the applicant meet the complementary protection criterion?
Having found that the applicants do not meet the refugee criterion, the Tribunal has considered whether on the evidence before it, there is a real risk the applicants will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to China.
The Tribunal does not accept that the applicants were members of a Christian church or group in China and it does not accept they will face a real risk of significant harm for that reason.
The Tribunal does accept that the applicants have been members of [Church 1] in Sydney but does not accept that attendance and membership would put them at risk of any adverse attention if they returned. It also considers that if they attended church in China they would not face a risk of significant harm for that reason.
There is no evidence that the applicants have committed any criminal offences in China or that there is a real risk they will face harm for any other reason.
The Tribunal has considered the applicants’ daughter’s possible autism diagnosis, and for reasons set out earlier, does not consider this puts the applicants at risk of being arbitrarily deprived of their lives, suffering the death penalty, being subjected to torture, or to cruel, inhuman or degrading treatment or punishment. Country information indicates that the situation in China for children with autism and their parents is continuously improving and there is no evidence that treatment or education options would be intentionally withheld from the applicants. There is no evidence that the applicants would be at risk of suffering significant harm due to their daughter’s health needs.
Having considered the applicant’s circumstances singularly, and on a cumulative basis, and for all the reasons set out above, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to China that there is a real risk they will each, or either, be arbitrarily deprived of their lives or suffer the death penalty, or subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
Conclusion

For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) of the Act for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c) of the Act, and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Louise Nicholls
Senior Member

ATTACHMENT A
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) of the Act. 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) of the Act, 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-5LA of the Act, 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.
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.
…

[2020] AATA 5704

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