1615507 (Refugee)

1615507 (Refugee) [2019] AATA 6511 (28 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1615507
COUNTRY OF REFERENCE:                   China
MEMBER:Penelope Hunter
DATE:28 November 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 November 2019 at 4:48pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Roman Catholics – member of the underground church – active role in a Catholic youth group – credibility concerns – rehearsed evidence – lack of contextual details – knowledge of the Catholic faith and Christianity – evasion of direct questions from the Tribunal – inconsistent answers – departed China legally using own passport – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 7 September 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, applied for the visa on 20 August 2015. On 23 September 2016, he applied to the Tribunal for a review of that decision.
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.
CLAIMS AND INFORMATION BEFORE THE TRIBUNAL
The applicant is a [age]-year-old Han Chinese. He was born in Fuqing in Fujian Province, China. His parents and younger brother continue to reside in China. According to his protection visa application, he lived in one address in China, in [Village 1], [Town 1], Fuqing City in Fujian Province. He completed high school in [year] and worked as a [Occupation 1] from January 2012 to March 2015. He arrived in Australia with a visitor visa [in] May 2015.
In a statutory declaration, dated 20 August 2015, provided with his protection visa application, the applicant set out his claims for protection as follows (in summary):
i.He is a Roman Catholic. Before he arrived in Australia, he was a member of the Roman Catholic Underground Church in China. Due to his active role in the youth training group of the underground church, he has been blacklisted by the Public Security Bureau (PSB). If he returns to China, he would be subjected to persecution by the PRC authorities.
ii.His father is a [Occupation 1] and he used to run a [business] in his hometown. In September 2011, when he was just enrolled in [School 1], his father’s [business] was demolished by the local government in [Town 1] because the township government sold the land to [Company 1]. Due to inadequate compensation to his father and others who had lost their properties and businesses, his father organised a ‘sit-in’ protest in front of the township government. His father was arrested by the police for ‘seriously harming social security’, and forced to have ‘re-education through labour’ for six months.
iii.After his father’s [business] was demolished, his family lost their main source of income. His family suffered financial hardship even though his mother managed a small piece of farmland. During that time, his girlfriend [Ms A], whom he went to school with, helped him and his family significantly by giving his family financial support and arranging him to work at a [shop] run by her sister [Ms B] on weekends from January 2012.
iv.While he was working at the [shop], he learnt that [Ms A] and [Ms B] were faithful Roman Catholics and member of the underground church. With their help, he attended a six-month catechumen class organised by the underground church and taught by [Ms B] from March to September 2012. On 6 October 2012, he was baptised by a priest of the underground church.
v.From October 2012 to June 2013, he followed [Ms A] and joined a youth group of the underground church while he continued to work for [Ms B] at her [shop]. He was later recommended to work for [Ms C], who was also a Roman Catholic, when she opened a new [business]. He worked there part-time as a [Occupation 1] from July 2013 to [month, year], and became full-time from [month, year] when he graduated from high school.
vi.[Ms C]’s [business] was also a secret meeting place for a youth training group of the underground church established in July 2013. [Ms C] was the group leader, [Ms B] was the main teacher, while [Ms A] and the applicant were assistants of the youth training group. The participants were teenagers from Roman Catholic families who expected them to study Roman Catholic teachings independently. The participants changed every three months.
vii.In March 2015, a student at [School 1], [Mr D], was found to have Roman Catholic teaching materials; he was suspended from class and subjected to investigations. The police learnt about [Ms C]’s youth training group and on [date] March 2015, the [business] was raided by the police. The applicant and [Ms A] managed to escape with the help of her sister [Ms B] and [Ms C], as well as other staff at the [business]. [Ms B] and [Ms C] were arrested by the police.
viii.[Ms A] and the applicant hid at a friend’s place on an island called ‘[Island 1]’. In April 2015, [Ms A] secretly rang her cousin in order to obtain information about her sister and others who had been arrested. The police were able to locate them quickly as her cousin’s phone was monitored. [In] April 2015, while he was fishing with a fisherman, he saw the police boat landing on the island. He escaped but [Ms A] was arrested.
ix.He had no choice but to leave China. His father had a close friend [Mr E] whom he met at the camp of ‘re-education through labour’. [Mr E] was a ‘snake head’ specialised in organising people to go overseas. His departure was organised by [Mr E] and his friend.
x.He attends [Church 1] in [Suburb 1], NSW every week in Australia.
xi.He had been blacklisted by the police owing to his active role in the underground church. His parents and brother have been implicated by his case and they have been subjected to investigation by the PRC authorities.
The applicant provided a statutory declaration along with his protection visa application, stating that the information contained in his protection visa application has been read and explained to him and that the information is true and correct in every aspect. In addition, the applicant had provided two letters of support from [Mr F], President of [the regional] Catholic Chinese Community, and [Father G], Chaplain Pastor of [the regional] Catholic Chinese Community, stating his membership with the community and his regular attendance at the Chinese Catholic Mass every Sunday at [Church 1, Suburb 1] since 2015. He also provided photographs of a Church and Christian sculptures, and a photograph of himself with a priest.
The applicant attended an interview with a Departmental officer on 22 August 2016. The applicant provided the Tribunal with a copy of the delegate’s decision record. This records the oral evidence provided by the applicant to the delegate during the interview. The Tribunal listened to a recording of the interview and while not a transcript, it is satisfied that the information contained in the decision record is correct.
The delegate accepted that the applicant had a degree of knowledge of Catholicism but concluded that this knowledge was not consistent with someone who was baptised [in] October 2012, and involved with the Church since then including being a member of the Roman Catholic Underground Church in China, who played an active role in youth training in the Underground Church, and attended a six-month catechumen class organised by the Church. The applicant claimed to have learned simple knowledge about the Bible, the sacraments and things about Jesus Christ. He told the delegate that he was not so familiar with the Gospels, and had read the Bible, but not in any great depth.
The delegate was not satisfied that the applicant would be of adverse interest as a believer of the Catholic faith and that fact that he had departed legally from China further indicated that he was not of adverse interest.
Tribunal application
On 21 August 2019, the applicant provided the Tribunal with a letter from [Father G], dated 18 August 2019, with the same content as the one previously provided to the Department. The applicant also provided a photograph of himself with [Father G] and a photo taken outside [Church 1].
The applicant first appeared before the Tribunal on 21 August 2019 to give evidence and present arguments. Following submissions from the applicant’s representative regarding the quality of interpreting certain elements of Catholic faith at the first hearing, the Tribunal scheduled a second hearing on 6 November 2019. The Tribunal hearings were conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented by his registered migration agent.
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 themselves 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
Country of reference
The applicant claims to be a citizen of China and has provided copies of his Chinese passport to the Department and the Tribunal. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of China. The Tribunal finds that China is the country of reference for the purpose of assessing his claims for protection under the refugee criteria and the complementary protection criteria.
Assessment of claims
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
The Tribunal in reaching its decision has taken into account all the evidence before it and it has also taken into account independent country sources about China, some relevant aspects of which are referred to in the findings below.
Country Information
The Department of Foreign Affairs and Trade (DFAT) Country Information Report on the People’s Republic of China dated 3 October 2019 reports that China is a religiously diverse country with a rich and complex society of faiths, belief systems and organised religious groups.[1]Christianity is reported to have been present since the seventh century. The report further states, when commenting on Christians:
China has seen a significant growth in Christianity since the 1980s. In 2010, the Pew Research Center estimated there were 67 million Christians in China (58 million Protestant, including both state-sanctioned and independent churches). However, 2018 estimates had grown closer to 100 million (unregistered churchgoers outnumber members of official churches nearly two to one).
In addition to state-sanctioned Catholic and (non-denominational) Protestant churches in China, SARA 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.
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. 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.
Leaders of both registered and unregistered churches are also subject to greater scrutiny than ordinary worshippers are, and 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 or practice (see Political Opinion (actual or Imputed) and Protesters/petitioners).[2]
………
DFAT assesses members of unregistered churches who participate in human rights activism are at high risk of official discrimination and violence, as are their families (see Political Opinion (actual or Imputed). DFAT assesses the adverse attention relates to their activism and association with unregistered (and illegal) organisations, rather than specifically to their Christian faith.[3]
[1] Department of Foreign Affairs and Trade, Country Information Report – People’s Republic of China, 3 October 2019 at 3.28, page 23.
[2] As above at page 30, paragraphs 3.76 to 3.79
[3] Ibid at page 31 paragraph 3.83
With respect to Catholics specifically, DFAT assesses that Catholics in China can experience officially-sanctioned harassment and discrimination where the authorities regard their activities to be politically sensitive. It is further assessed that Catholics in China face a low risk of societal discrimination. [4]
[4] Ibid at page paragraph 3.92
In commenting on religion in Fujian the report records the following;
Religion in Fujian
While a wide variety of religions are practised across China, they are generally able to thrive to a greater degree in Fujian province (Fujian). This is largely due to Fujian’s ethnic and linguistic diversity and historical geographical isolation from other parts of China. However, Fujian’s links with other areas of China increased following the mid-1950s completion of a railway line that connected Xiamen to other areas of China.
Fujian, home to only 2.8 per cent of the Chinese population, is located in the southeast of the People’s Republic of China, bordered by Zhejiang Province to the north, Jiangxi Province to the west and Guangdong province to the south. Its main cities are Fuzhou, Xiamen and Quanzhou, which are all located along or close to the coast facing the Taiwan Strait. Quanzhou linked Tang dynasty China (618 – 907) with Southeast Asia through trade and shipping.
Because of poverty and poor agricultural productivity, Fujian residents have a long history of emigration to Southeast Asia and, in more recent times, to the United States, Europe, Australia and Africa. Fujian is the historic ‘hometown’ of many overseas Chinese and in 2017 there were an estimated 15.8 million people originating from Fujian residing across 180 countries and regions overseas. The historical willingness of people from Fujian to travel overseas continues in 2019.
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.[5]
[5] Department of Foreign Affairs and Trade, Country Information Report – People’s Republic of China, 3 October 2019 at page 24

An earlier country report produced by DFAT in 2016 contains the following commentary in respect of Fujian Province in particular, DFAT has commented that large numbers of people in Fujian worship in Chinese Catholic Patriot Association (CCPA) linked places of worship. In 2011 there were estimated to be 908,000 CCPA-linked worshippers,[6] and that CCPA-linked places of worship (including prominent crosses outside places of worship) were clearly visible in Fujian. It was also assessed that direct interference in direct CCPA-linked churches in Fujian rarely occurs, and that worshippers are generally able to openly practice their religion, including with a significant amount of public visibility without interference. [7] Generally speaking, DFAT in-country contacts report that local authorities in Fujian tolerate the operations of unregistered churches that operate discreetly, including limiting the number of worshippers and meeting at 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.[8] Further that any harassment, raids, occasional violence or criminal sanction was more likely to affect leaders of unregistered churches rather than individual worshippers.[9]
[6] Department of Foreign Affairs and Trade, Thematic Report Fujian Province, 16 December 2016, at 3.7
[7] As above at 3.8
[8] As above at 3.12
[9] As above at 3.13
Does the applicant have a well-founded fear of persecution?
The applicant has made claims to fear persecution in China for the following reasons. He commenced practicing as a Roman Catholic in 2012. He claims he regularly worshipped in an underground church. He was involved in the teaching of youth and this came to the attention of the Chinese authorities by religious material found at a middle school. He and his girlfriend were pursued by the police and his girlfriend was captured and detained. He had to leave China to avoid arrest. In addition, he claims that since arriving in Australia he has been attending [Church 1], [Suburb 1] on a regular basis.
During the hearing, the Tribunal discussed with the applicant his background, his family, his employment, his religious activities and his reasons for leaving China and why he fears returning to China. In reaching this conclusion, the Tribunal has taken into consideration the submissions of the representative of the applicant that the applicant lost confidence due to concerns about interpreting at the first hearing. At the conclusion of the first hearing on 21 August 2019, the applicant confirmed personally that he had understood the interpreter and did not raise any issues. At the second hearing on 6 November 2019, the applicant confirmed that he did not have any concerns during the hearing of 21 August 2019 until matters were brought to his attention after his representative had obtained a copy of the recording post hearing. The applicant did not state he had any lack of confidence in his answers at the first Tribunal hearing. The Tribunal does not accept that the representative’s submission that the applicant lost confidence and this affected his ability to give evidence in the first hearing. What was of concern is the observation of the Tribunal that the applicant was able to answer questions where the answers were included in his written statement provided to the Department with his visa application. However if it asked questions that were not included in the written statement, his responses faltered. The Tribunal formed the view that he had learned his statement, but when he was asked to provide contextual detail, he was unable to persuade the Tribunal that many of the events contained in his claims actually occurred. The Tribunal found aspects of his evidence to be implausible, evasive, contradictory and unconvincing. Considering the totality of his evidence the Tribunal finds that he is not a credible or reliable witness for the following reasons:
The delegate set out in his decision that at his interview in August 2016, the applicant demonstrated knowledge of the Catholic faith and Christianity. Some three years later, and after claimed regular attendance at [Church 1] in Australia since June 2015, the Tribunal also explored these issues with the applicant. It is accepted in his evidence to the Tribunal, particularly his later evidence of 6 November 2019, that the applicant has demonstrated knowledge of Catholic faith and Christianity. He was able to recite Apostles Creed and the ritual of the rosary, and identify its relevant component phrases and prayers. The Tribunal has allowed for the claim that the interpreter at the first hearing, made errors when translating the applicant’s evidence of a miracle of Jesus and has not formed any adverse view of the description. It also notes that the complaints about the interpreting related to the translation of specific Catholic terms not the quality of the interpreting throughout the first hearing. What is of concern for the Tribunal is that when discussing elements of Catholicism the applicant gave the impression of rote learning certain elements with little understanding or meaningful engagement. For example when asked about how his life changed after becoming a Christian the applicant spoke of studying the scripture every night. He then clarified that this just meant the rosary. The Tribunal also found the applicant’s evidence as to his conversion and reasons for conversion to Catholicism in China unpersuasive. The applicant told the Tribunal that prior to becoming a Catholic he held no religious belief. Coming from this background when asked about his religious awakening and what made him wish to convert, he told the Tribunal that his girlfriend was kind. At the second Tribunal hearing, the Tribunal attempted to explore with him whether there were elements that he questioned prior to his conversion, and although he acknowledged some issues such as God as the creator of everything, he told the Tribunal that he was able reconcile this through studying more about the religion and thereafter he had never questioned or doubted. At the same hearing, there was little evidence of what this study actually consistent of, other than his catechumen classes. These classes were delivered to him by his [age]-year-old girlfriend and her [age]-year-old sister in a [business]. When asked whether there were any elements of his classes that were important to his religious awakening or memorable, the applicant responded in the negative. He also told the Tribunal that he has never owned a bible. When asked if he had read the bible the applicant identified that occasionally passages were printed out for services at [Church 1]. It was not until his baptismal ceremony that the applicant claims to have first met a priest, who required no proof of his conversion other than sponsorship. At the hearing on 6 November 2019, the applicant confirmed that this was also the first occasion that the applicant had attended a church service. The applicant was unable to answer for the Tribunal, why having never met a priest or attended a church service he decided to become a Catholic. Against this background, the Tribunal also finds it difficult to accept that the applicant would, sight unseen by the clergy, having never attended a church, have genuinely been baptised in the Roman Catholic faith.
Moreover, from this background of instruction the Tribunal considered that it was even less plausible that the applicant would advance to become an assistant leader of a Catholic youth group. His evidence on this activity was an example of the applicant being unable to provide actual detail or contextual evidence when questioned by the Tribunal of matters outside his written statement. The applicant was consistently evasive in his evidence and the hearing in August 2019, when asked about his instruction at the youth group the applicant challenged the Tribunal on why it was questioning him on the matter. The Tribunal even provided to the applicant a brief adjournment and the Tribunal informed him that as it was a part of his claims, the Tribunal wanted to question him on his engagement in the activity. In addition, the Tribunal to his attention that his ongoing avoidance of questions raised concerns about the reliability of his claims. The Tribunal is satisfied that these were not interpreting issues but rather the inability of the applicant to provide contextual detail to support his claims. The applicant claimed that as a youth group assistant he was helping young people to develop a belief in Catholicism. Yet when the Tribunal asked him what he instructed and how he would assist, he gave generic answers such as he would ask them to study basic stuff like miracles and the Holy Scripture. The Tribunal then asked the applicant whether he meant the bible as the Holy Scripture, and he responded a little bit of that as well. As set out above, in the subsequent hearing of 6 November 2019, the applicant admitted that he had never owned a bible, and has only read passages distributed at [Church 1]. In these circumstances, the Tribunal questions the reliability of this evidence. The applicant claimed to have been an assistant in the youth group from July 2013, until March 2015. When the Tribunal put to the applicant that if he claimed to be an assistant teaching people basic concepts about Christianity, it expected that he would be able to explain some concepts, to which the applicant could only respond that he was only an assistant. Overall, his evidence at both hearings as to his engagement with this activity was unpersuasive.
In addition to studying basic concepts about Christianity, the applicant claimed that one of the other main activities of the youth group was to pay visits to patients. The applicant claimed that he would attend patients in government hospitals with other members of the youth group, who were school children, to pray for the patients. He further claimed that not all of the patients they attended were Catholics. The applicant claimed that he openly and regularly engaged in this activity with other children in government hospitals without incident from 2013 to 2015. The Tribunal considered it a somewhat feeble attempt by the applicant to introduce elements of proselytism in an effort to raise his profile, for the purposes of assisting his protection claim. The Tribunal does not accept that the applicant ever proselytised, because after repeated questions about his beliefs and what he told people the applicant was unable in his evidence to go beyond a description other than the basic belief of Catholicism, or the scripture, without identifying any content. It is noted that the applicant’s written claims contained no description of these activities. It is also not a matter recorded in the discussion of his evidence by the delegate in their decision, and the Tribunal considers that this late claim and level of public exposure and open display of Catholicism by the youth group is not consistent with his subsequent claim that the youth group had to have secret meetings in the [business] of [Ms C]. It further demonstrated to the Tribunal that the claims of the applicant regarding his experience in China are not genuine.
The Tribunal also found the evidence of the applicant regarding the events culminating in the police attending the [business] of [Ms C] in March 2015 to be unpersuasive. Initially when describing the event the applicant was able to recite evidence consistent with his written claims, particularly he said that one student was detected to have information about Catholicism in school, and because the school did not allow students to take any materials to school, he was suspended and investigated. This was how the applicant claimed that the police came to know about their youth group. However, when asked for details about the particular information held by the student, the applicant was unable to expand. When asked what the information was in the first instance, the applicant just repeated that the student had the information and the teacher found it. The Tribunal persisted and asked him again what the information was, and he gave a general response that it was something like questions and answers about the essential beliefs of Catholics. The applicant was again evasive when questioned by the Tribunal as to where the information had come from, it was only after repeated questions he suggested that it may have been from his church or youth group. When the Tribunal questioned again he identified that it was something produced by his youth group. The Tribunal is satisfied that this was not an interpreting issue, and considers that the applicant was deliberately evading the question. At one point in the hearing the Tribunal adjourned The Tribunal then asked the applicant to clarify what material was produced; the applicant suggested the essential beliefs set out were the basic beliefs about the Trinity, heaven and hell. The Tribunal then asked the applicant to explain the Catholic beliefs of the Trinity, heaven and hell. In reply, the applicant claimed that it may have contained a lot of information such as holy events and the seven sins. The constantly shifting nature of the applicant’s evidence and his inability to provide an explanation of material essential to his claims, or impress upon the Tribunal an understanding of what the content might be, further indicated to the Tribunal that there was little reliability to his claim of acting as an assistant in a Catholic youth group, or that the group produced material for publication.
The Tribunal also found the evidence of the applicant to be unpersuasive as to why he initially went into hiding. At the time of the police raid on [Ms C]’s [business], the applicant claimed that he was unaware that the student had been found with Catholic information. He also said that it was not a day on which a youth group meeting was taking place. The applicant told the Tribunal that the police attended around 3 pm, as the [business] staff were preparing for dinner. Although the [business] was not open, the applicant and his girlfriend [Ms A], were the only people preparing in the kitchen. While the applicant was quick to continue his narrative that he and [Ms A] went into hiding on an island, he could not explain to the Tribunal why he thought that they needed to go into hiding. His evidence was not only was he not aware of the subsequent alleged motivation for the raid, he did not actually see the police at the [business]. When asked how he knew to run away the applicant suggested that it was because [Ms C] and [Ms B] called out that the police were there. As the applicant had earlier given evidence that he openly attended government hospitals and prayed with patients, and he claimed to have not experienced any other difficulties as a Catholic in China prior to this event, the Tribunal did not consider that the applicant has established why he believe he needed to hide on an island. Further, his claim that he was sought by the authorities is not supported by the independent evidence considered by the Tribunal. The independent country information considered by the Tribunal indicates that local authorities in this period, particularly in Fujian province, generally tolerated the activities of unregistered churches as long as they were not politically active. The applicant has made no claims of this type of action in relation to his religious activities.
It is considered that the applicant has also failed to give a consistent reason why he decided to hide on the island. In his written claims he set out that he hid at a friend’s place. In contrast he told the Tribunal that he did not know anyone on the island, that he had visited it before during the school holidays for fun, he said that he chose to go there from the [business] because he thought it was safe. This further undermined for the Tribunal the reliability of the applicant’s claims.
Additionally, although the applicant spent a month in hiding on the island he could provide little contextual detail as to what he did during this time. He described the island as remote and said that after a while he came to know a fisherman’s family. These strangers let the applicant and his girlfriend stay with them. When asked by the Tribunal how he explained their presence on the island without shelter or belongings, the applicant claimed that he cheated the fisherman and said that he had just gone to the island for fun. He claimed that the fisherman’s family did not think it out of the ordinary that they then continued to stay with the family for more than a month, without explanation or recompense. The Tribunal did not consider it plausible, that an unknown fishing family would accept two young people into their home without explanation. The applicant then said he went fishing during the day with the fisherman, while [Ms A] would wait until they returned home to kill the fish.
Although the applicant still claimed to have no information as to why he should be in hiding, it wasn’t until a month later that the applicant claimed [Ms A] called her cousin and made enquiries about what had happened at the [business]. Again, in the context of the applicant’s evidence that he had not previously come to the adverse attention of the authorities, the Tribunal did not find this plausible. The applicant claimed that it was [Ms A]’s telephone contact with her cousin that tipped the police off to the fact that they were hiding on the island. He said that her cousin’s mobile was being monitored. While the Tribunal does not doubt that the authorities in China have this capability, the Tribunal is not satisfied that in the circumstances the technology would be employed for so long for the applicant and [Ms A] because of their Catholicism and questioned why [Ms A]’s phone was not monitored instead of her cousin’s. The applicant could offer no explanations. He told the Tribunal that it was only after he arrived in Australia that he made enquiries with his parents about this and they told him how the police had found them. He also claimed to have no idea how his parents were informed. According to the applicant this was the only call that had been made after a month of hiding by the applicant and [Ms A]. The Tribunal questioned whether he had contacted his family, and only claimed he was told information by [Ms A]’s cousin. The Tribunal did not understand why they would wait a month to contact anyone as they did not know the reason why the police had attended the [business] in the first place. The Tribunal was not satisfied that the applicant’s entire experience on the island was reliable.
The Tribunal had further difficulties with the applicant’s description of how he evaded police detection. The applicant said that shortly after the phone call while he was out at sea with the fisherman he saw the police boat. Yet although they were in the same small boat, the applicant claimed that the fisherman did not notice any of this. The Tribunal found it implausible that the fisherman would not also notice the police boat approach the island and moor on the island, where his family remained. This was a man that fished in the waters around the island daily. The Tribunal considered that he would be very attuned to boats coming and going around his home. The applicant then said that he told the fisherman that he needed to do some shopping in the main street, and the fisherman took him to shore. It was also improbable for the Tribunal that the fisherman would then depart from his routine, not look at the island and take the applicant to shore without notice or questioning. The Tribunal questioned whether the applicant had any concern for [Ms A] and the fisherman’s family. The applicant then told the Tribunal that the following night he returned to the island around 3 am. When the Tribunal queried what he was told had happened, he replied only that [Ms A] had been arrested. He did not offer any further context or detail. The Tribunal further questioned the effect of the incident on the fisherman’s family and whether there were further repercussions. In response, the applicant claimed that the fisherman’s family were fine because they did not know anything and they were not guilty. Again the Tribunal was not satisfied that the applicant was describing events that had actually occurred.

Furthermore, if surveillance of mobile technology had previously been employed to track down the applicant and [Ms A] as he claimed, the Tribunal does not accept that the applicant would have evaded detection for another two months until he departed China. The applicant maintained that this was possible because he was in hiding. When asked he did not provide details of the place he hid, other than to say it was his hometown. On further questioning he claimed it was not his parent’s place. Also, it was not until the applicant had departed China that he claims his parents were questioned as to his whereabouts. If the authorities were genuinely looking for him it is more likely that they would have made enquiries proximate to the time of the raid [in] March 2015, rather than waiting until after his arrival in Australia [in] May 2015, to contact his family to enquire as to his whereabouts. When the Tribunal raised this concern with the applicant at the hearing, he did not offer an explanation.
The Tribunal also noted that the applicant had obtained a passport [in] 2014. When the Tribunal asked him why he had obtained a passport several months earlier he said around that time the family was obtaining a new Hukou, and in return the Tribunal questioned why getting this would cause him to get a passport. The applicant then changed his evidence and suggested that he was thinking of travelling overseas with [Ms A]. It is noted that these responses were also different to evidence that the applicant told the delegate. In their decision the delegate records that the applicant had said that he obtained his passport [in] 2014 because his previous one had been lost. In commenting on this inconsistency at the hearing the applicant again said that the family household book had been lost. The Tribunal did not accept the response of the applicant that a Hukou was the same as a passport. This discrepancy further undermined for the Tribunal the evidence of the applicant, and the Tribunal was concerned that he had been planning his travel to Australia for some months prior to the events that are the subject of his claims.
Although the applicant claims that he was being sought by the authorities, and that mobiles of person’s known to them were being monitored, and that there was an arrest warrant out for him, he was able to depart China without incident on a passport issued in his own name. The Tribunal has taken into consideration country information indicating the checks and examination of identity undertaken on departure of China, and that country information indicates that the fact that a citizen of China exits lawfully from China provides a strong indication that they are not of adverse interest to the authorities. The Tribunal also noted that country information set out in DFAT’s most recent Country Information Report on the People’s Republic of China, indicates that borders are not very permeable, and that fraudulent exit would require high-level facilitation, and that illegal exit without major corrupt government facilitation is highly unlikely.[10] The Tribunal discussed this with the applicant at the hearing, and he gave evidence that he was unaware at the time of his departure what steps had been taken to assist him to leave the country. He said that once he arrived in Australia he made enquiries with his family and was told his father used a ‘snakehead’ or underworld associates, who he met in detention, to arrange his departure. On questioning by the Tribunal, the applicant suggested that a considerable bribe, [was] paid. Firstly, the Tribunal considers it improbable that if the applicant was genuinely in hiding and conscious that authorities were looking to arrest him, he would not be informed of the process for his departure or be alerted to any difficulties. In addition, as discussed with the applicant pursuant to the provisions of s.424AA of the Act, when questioned by the delegate at interview in August 2016, regarding his ease of departure from China, the applicant did not mention that a bribe had been paid. The applicant chose to respond immediately and suggested that it was only after his interview with the delegate that his parents provided him with this information. The Tribunal considered that the applicant manufactured this explanation to overcome a discrepancy in his evidence. It is unlikely that the applicant would only get half the explanation for his departure when he enquired of his parents the first time. Further, the applicant has set out in his written claims that his father had received inadequate compensation for the closure of the family [business] in 2011, and his family went on to suffer severe financial hardship. The applicant also set out in his written claims that in the years prior to the applicant’s departure they relied on his income from employment and financial assistance from his girlfriend. The Tribunal considers it unlikely that in these circumstances in 2015, there remained sufficient compensation from the [business] closure to bribe the applicant’s way out of China if he was of genuine interest to authorities. The Tribunal further does not accept that the applicant’s family paid a ‘snakehead” or other person to assist with his departure from China.
[10] Department of Foreign Affairs and Trade, Country Information Report – People’s Republic of China 3 October 2019, at 5.64, page 75
The applicant suggested that he would be executed if he returned to China because he absconded and participated in the underground church. The Tribunal asked him what had happened to [Ms A] and [Ms B], the applicant said that they were imprisoned for one year with labour. Having been arrested in April 2015, by August 2016 [Ms A] would have already been released when the delegate interviewed the applicant and it was of concern for the Tribunal that the applicant did not mention this in his interview with the delegate. When invited to comment on this the applicant suggested that the delegate had not asked him. However, in the decision record the delegate records that the applicant volunteered that [Ms A] was still being held at a women’s prison at the end of his interview. This inconsistency further undermined for the Tribunal the evidence of the applicant. When asked what had happened to them after they were released, the applicant told the Tribunal that nothing further had happened. In these circumstances the Tribunal questioned why the applicant thought he would be executed. The applicant could not provide a satisfactory response. There were further inconsistencies of concern for the Tribunal regarding the applicant’s evidence of his relationship with [Ms A]. At the first Tribunal hearing on 21 August 2019, when asked if he had any contact with [Ms A] the applicant responded very rarely. At the Tribunal hearing on 6 November 2019, he claimed that they messaged each other almost every day and were still in a relationship as girlfriend and boyfriend. Whether or not the applicant had continued in a relationship with [Ms A] since 2015 and messaged her almost daily was a relevant fact that the applicant was expected to keep consistent. This inconsistency further undermined for the Tribunal the claims of the applicant.
The applicant’s evidence about his religious activities in Australia also raised concerns for the Tribunal. He claimed to have been attending [Church 1] every week since June 2015, the applicant claimed that he found out about the church on the internet. The Tribunal notes in the letters of support submitted that the timing of the applicant first attending the Church is given to [Father G] by the applicant. The Tribunal asked the applicant whether there was any other record to corroborate how long he had been attending [Church 1] other than what he told [Father G], and the applicant referred to the letter from the church leader [Mr F]. The Tribunal notes that this also contains the comment that the time of first attending was given to him by the applicant. When asked how well he actually knew [Father G] the applicant claimed not very well because he was English speaking. Then the Tribunal asked the applicant about his other activities related to his religious practice in Australia. The applicant said that he would do charity work, visiting seniors, chatting with them and undertaking labour jobs. The Tribunal noted that he had not resumed his participation in youth groups. In addition, when the Tribunal asked the applicant about details of this charity work he was evasive. Although he claimed it was a regularly activity, on questioning, he did not know who organised it. He said that the last time he participated was a month prior to the Tribunal hearing. When the Tribunal asked who could be contacted to verify the activity, the applicant responded only a member of the church. The applicant then evaded several direct questions from the Tribunal about the person’s name and contact details, and conceded that he could not remember the person’s contact details. Then the Tribunal asked him about the seniors he had visited and what he had done. The applicant suggested that he chatted with seniors, however once more he could not remember the name of the seniors he visited. He did not know the address other than it was in [a suburb] because the member of the church had taken him there. The Tribunal did not accept that the applicant was truthful in his account of this activity and it further added to the concerns of the Tribunal about the reliability of his evidence.
Findings
Having considered all of the applicant’s claims and all the evidence, the Tribunal finds that the applicant is not a witness of truth. The Tribunal finds that he has manufactured his material claims for the purpose of obtaining a protection visa.
The Tribunal accepts that his father’s [business] may have been closed and that he suffered unemployment. It is also accepted that his father may have protested against this and come to the attention of authorities. It is also accepted that his father may have been detained for a period, although the Tribunal has considerable doubt that it was for the extensive period as claimed by the applicant, in circumstances where the applicant has provided evidence to the Tribunal that his family received compensation for the closure of the [business]. The Tribunal does not accept that they would deal with the applicant’s father that harshly if they intended to provide compensation to him. The Tribunal also accepts the evidence of the applicant that he did not engage in any protesting activity with his father, and he has never in the past publically criticised the government of China.
The Tribunal has ongoing concerns regarding the applicant’s claimed conversion to Christianity in China. It is not the case that he had been raised Catholic or had been led to the church through family traditions as a child. Against a background of no religious affiliation he claims he chose to convert as an older teenager. On questioning from the Tribunal it was his evidence that it was the kindness of his girlfriend not any particular religious awakening that led to his conversion. It is accepted that he had rote learned common prayers, and knew some stories of miracles performed by Jesus. The Tribunal is not satisfied that the applicant has displayed a genuine fervent belief that would be associated with a convert. His evidence was vague and unconvincing in relation to his beliefs. His evidence as to his attendance at catechumen classes and his baptism is not accepted. However the Tribunal has had regard to the submissions of the applicant’s representative regarding some of his evidence at the hearing on 21 August 2019, and will allow him some benefit of the doubt. Having regard to the photographs he submitted, the Tribunal accepts that the applicant may have occasionally attended a Catholic church and underground church services prior to his departure from China.
On the basis that the applicant could not describe what he taught, beyond “general principles”, the Tribunal does not accept that the applicant was ever an assistant instructor at an underground Catholic youth group from 2014 to 2016. It does not accept that his girlfriend or her sister were instructors. It does not accept that he led youth in undertaking prayers with the elderly.
The Tribunal does not accept that the applicant came to the interest of the police due to his religious practice, that he was pursued by the police, or an arrest warrant is current for the applicant for absconding from China. It also does not accept that his family had been investigated due to his religious activity or that he had been blacklisted by the police or PSB.
Taking all of the above into consideration, the Tribunal rejects the applicant’s claims relating to his departure from China. It does not accept that the police were looking for him because of his involvement in unregistered church gatherings or youth classes held at his work.
The Tribunal accepts that the applicant wants to live and work in Australia and does not want to return to China.
The Tribunal accepts that the applicant has attended [Church 1, Suburb 1] in Australia. The Tribunal does not accept that the religious practice of the applicant extends beyond the observance of Mass. The Tribunal has considerable doubt as to whether he is a genuine adherent of the Catholic faith. However, the Tribunal has had regard to the letters and photographs submitted by the applicant and notes that the timing of the applicant first attending the Church was given to [Father G] by the applicant in 2015. The Tribunal accepts that he is an ordinary parishioner and that if he did continue to practice as a Catholic in China he would do so as an ordinary member of the Catholic faith.
The Tribunal notes the DFAT estimates of the large numbers of Catholics in China, 12 million of which 6 million are registered.[11] The applicant was asked why he could not attend a registered Church, given the nature of his involvement and participation in the Church in Australia. On his evidence, the Tribunal is not satisfied that he was able to articulate in any convincing way why he could not attend a state sanctioned church in Fujian. He could only claim that the state-sanctioned churches are run by humans and the underground churches are run by God. The Tribunal is not satisfied that this evinces a true understanding or conviction in relation to why he could not attend a state sanctioned church in China. However if it is the case that he genuinely does not wish to attend such a church, the Tribunal is satisfied the applicant will be able to attend an underground Catholic Church in Fujian Province in safety. The Tribunal has considered the accepted evidence of the applicant as to his religious practice in Australia, and finds that if he continues to adhere to the Catholic faith it is likely that he will practice his religion in a similar manner as an ordinary worshipper. The Tribunal does not accept that the applicant is subject to adverse interest from authorities due to past religious participation, having rejected his claims about what happened in March 2015. The Tribunal does not accept that the applicant has a profile of activism, government criticism or proselytism. The Tribunal does not accept that he has ever held any leadership or teaching position. The Tribunal is not satisfied that the applicant has a religious profile in China. As the Tribunal does not accept that the applicant’s father was ever detained, and on the basis of the applicant’s own evidence that he has never been involved in protesting activity or critical of the government in China, it does not accept that he would have an adverse political profile.
[11] [11] Department of Foreign Affairs and Trade, Country Information Report – People’s Republic of China 3 October 2019, at 3.32, page 23.
The Tribunal does acknowledge that there has been a crackdown in China over the last several years in relation to unauthorised religious activity. Whilst the latest DFAT assessment dated 3 October 2019 does continue to indicate that the situation in Fujian is relatively liberal[12], this report does state that house churches can meet without hindrance by authorities. It accepts that underground Catholics in China may face some challenges and disruptions in pursuing their Catholic practice because from time to time they may need to change the location of their underground church. However, it is not satisfied that this amounts to serious harm or will result in the applicant being seriously harmed. Having regard to the country information, the Tribunal is of the view that his attendance in an underground church will not give rise to a real chance of serious harm. The Tribunal accepts that the applicant may find it difficult to find an unregistered church to participate in, or that he may be encouraged or pressured to join a state church however the Tribunal does not accept that either of these possible consequences amount to serious harm in the sense contemplated by s.5J(5) of the Act.
[12] Opcit at 3.36, at page 24.
On the evidence before it, the Tribunal is not satisfied that he has a well-founded fear of persecution for reason of his religion, or imputed political opinion based on his religion and or his relationship with his father for petitioning the authorities. It is not satisfied that there is a real chance he would be persecuted for any one or all of the reasons claimed. It is not satisfied that there is a real chance of persecution were he to return to China.
Therefore or 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).
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). In making this finding the Tribunal has again considered the country information in relation to underground Catholics in China, and that they may face some challenges and disruptions in pursuing their Catholic practice because from time to time they may need to change the location of their underground church. Again the tribunal is not satisfied that this amounts to significant harm or will result in the applicant being significantly harmed. The Tribunal has considered the country information in relation to the complementary protection criteria and it is not satisfied that his attendance in an underground church will give rise to a real risk of significant harm. The Tribunal accepts that the applicant may find it difficult to find an unregistered church to participate in, or that he may be encouraged or pressured to join a state church however the Tribunal does not accept that either of these possible consequences amount to significant harm in the sense contemplated by the Act.

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).
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.
Penelope Hunter
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)    the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2019] AATA 6511

28 November 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction