1616870 (Refugee)

1616870 (Refugee) [2019] AATA 6836 (17 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1616870
COUNTRY OF REFERENCE:                   China
MEMBER:L. Symons
DATE:17 December 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 17 December 2019 at 3:04pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Roman Catholic – underground Roman Catholic Church – preaching the gospel – fear of detention – distributing gospel pamphlets – police searches of churches – sending information about the Pope to China – Catholic activities in Australia – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5J – 5LA, 36, 65
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 16 September 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The first named applicant, who claims to be a citizen of China, first arrived in Australia [in] October 2007 as the holder of a [Student] visa. On 7 December 2007, her visa was extended until [March] 2011. [In] June 2010, she departed Australia and returned [in] July 2010. On [a date in] March 2011, her visa expired and she thereafter remained in Australia as an unlawful non-citizen. On 24 December 2015, she was granted a Bridging C visa in association with her application for Protection visas. That visa remains in effect and she resides in Australia as a lawful non-citizen.
The second named applicant, who is the husband of the first named applicant, arrived in Australia [in] August 2014 as the holder of a [Visitor] visa. He departed Australia [in] October 2014 and returned [in] November 2014. His Visitor visa expired [in] February 2015 and he thereafter remained in Australia as an unlawful non-citizen. On 18 January 2016, he was granted a Bridging C visa. He was granted a further Bridging C visa on 29 April 2016 that remains in effect.
The applicants applied to the Department of Home Affairs (the Department) for Protection visas on 22 December 2015 and the delegate refused to grant the visas on 16 September 2016. On 12 October 2016, they applied to the Tribunal for a review of that decision.
The applicants appeared before the tribunal on 16 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 issues that arise on review are whether the applicants are owed Australia’s protection under the refugee criterion or under the complementary protection criterion.
CRITERIA FOR A PROTECTION VISA
The criteria for a Protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a Protection visa of the same class.
Section 36(2)(a) provides that a criterion for a Protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS
First named applicant’s claims
The first named applicant’s claims in her application for Protection visas are summarised as follows:
·     She is a Roman Catholic who found her paradise of faith and spiritual life in Australia. All her family including her grandparents are Roman Catholic. She was baptised before she came to Australia in 2007.
·     In Middle School she used to discuss biblical stories with her classmates and she aroused the interested of some class mates in Catholicism. It was too dangerous to publically or formally preach the gospels to her classmates. Her classmates are now all pious Catholics involved in the underground Church.
·     She and her family attended a non-government Church funded and run by the people. Her Church tried to be independent of government control by asserting its freedom to choose its own faith.
·     Her faith is different to the official Patriotic Church because her Church has sworn allegiance to the Roman Catholic Pope. The Patriotic Church has outlawed preaching the gospel and evangelising. Her Church has therefore been forced to preach the gospel in secret. Her Church once invited priests from abroad to preach sermons but they were discovered and deported. She does not believe that there is freedom of faith in China and that Roman Catholicism can be practiced publically in China.
·     Before she came to Australia in 2007, her Church gave her a ‘church testimony’ to help her find a proper Church in Australia. After she arrived in Australia, her landlord directed her to a local Catholic Church where she has been serving God ever since. Since 2007, her faith increased and she believes preaching the gospel is her mission. Many of her classmates and countrymen accepted her preaching and converted to Catholicism.
·     In 2010, she returned to China to visit her brothers and sisters and she attended several of their house Church gatherings. She learnt that the local government and security forces have supressed the activity of house Churches and members have had to be careful about being arrested. She told Church members to listen to the Pope and to print the Pope’s gospel pamphlets regularly and spread them through the internet.
·     When she returned to Australia, she sent information about the Pope to a fellow adherent in China who later got in trouble and had her personal computer checked by the Police. Since then she does not dare send her adherent any more gospel information. Since 2012, her parents were penalized for attending sermons given by foreign priests.
·     After 2014, two of her family members were arrested on charges of spreading the gospel. The gospel pamphlets were forbidden to be distributed anymore and security Police ordered the Church to demolish the cross on its roof.
·     Between 8 December 2015 and 26 November 2016, all Churches had unannounced inspections and were unable to hold any Mass activities. Pamphlets that referred to the Pope were confiscated by the security Police.
·     The Police accused her Church of violating the patriotic Church’s policy and neglecting government decrees by illegally collaborating with foreign religious organisations and disturbing the social peace and order. Organisers of Church activities were investigated by Police and sent to prison.
·     She and her husband were married in a Catholic Church in Australia and they are both committed to preaching the gospel and defending their religious freedom. They both refused to take part in the Patriotic Church and swore allegiance only to the Pope.
·     Her husband agreed to convert to Catholicism but his conversion was opposed by his family because they feared religious suppression and persecution by the government. Her husband lacked courage to attend underground Catholic house Churches in China.
·     Religious freedom does not exist in China and Roman Catholicism has been outlawed, oppressed and supressed in China.
·     She and her husband have applied for protection against religious persecution.
Second named applicant’s claims
The second named applicant’s claims in his application for Protection visas are summarised as follows:
·     He converted to Catholicism against his family’s wishes because they feared it would cause religious suppression and persecution by the government
·     He married the first named applicant in a Catholic Church in Australia [in] December 2015. He and his wife are committed to preaching the gospel and defending their freedom of faith.
·     He and his wife have refused to take part in the Patriotic Church and have sworn their allegiance only to the Pope.
·     Religious freedom does not exist in China and Roman Catholicism has been outlawed, oppressed and supressed in China.
·     He and his wife are seeking protection against religious persecution.
The applicants provided the Department with copies of an untranslated Certificate of Baptism from the Catholic (China) Fuzhou Archdiocese [Parish 1] dated 20 October 2007, an untranslated Certificate of Baptism from the Catholic (China) Fuzhou Archdiocese [Parish 1] dated [in] December 2015, the biodata page of the first named applicant’s passport issued [in] 2007, the biodata page of the second named applicant’s passport issued [in] February 2013, their Certificate of Marriage dated [in] December 2015, the first named applicant’s Student ID card from [a named] High School, a notarised Certificate of Graduation with English translation in relation to the second named applicant dated [in] July 2008, a notarized Certificate for the ‘Degree of Bachelor’ with English translation in relation to the second named applicant dated [in] July 2008, a notarized Certificate for the Degree of Bachelor with English translation in relation to the second named applicant dated [in] December 2015 and a letter of support from the [Community Group 1] in relation to the second named applicant dated [in] September 2016.
The first named applicant attended an interview with the Department on 8 September 2016. During that interview, she reiterated her written claims. The delegate found that the applicants are not persons in respect of whom Australia has protection obligations.
The applicants have filed with the Tribunal a copy of the Department’s Decision Record dated 16 September 2016.
The applicants have also filed with the Tribunal copies of some of the documents previously provided to the Department as well as a notarised Certificate of Graduation with English translation in relation to the second named applicant dated [in] June 2011, a notarised Certificate for [a further qualification] in relation to the second named applicant dated [in] June 2011, letters of support for applicants from [Community Group 1] dated [in] September 2016 and [in] February 2017, a Certificate of Baptism in relation to the first named applicant dated [in] December 2015, photographs of the applicants involved in Church activities, a Certificate of Baptism and Confirmation from the Catholic Archdiocese of Sydney in relation to the second named applicant dated [in] April 2017, a letter of support from the Catholics (China) [Parish 1] with English translation dated 20 October 2007, a personal reference for the applicants dated [in] August 2019, their Chinese passports and country information on China.
Receiving country
The applicants have provided to the Tribunal copies of their Chinese passports. In the absence of any evidence to the contrary, the Tribunal finds that the applicants are citizens of China. The Tribunal finds that China is the receiving country for the purpose of assessing their claims for protection under the refugee criteria and the complementary protection criteria.
Third country protection
The Tribunal finds that the applicants are outside their country of nationality. There is no evidence before the Tribunal to suggest that they have a right to enter and reside in any country other than their country of nationality.
Membership of the same family unit
In the absence of any evidence to the contrary, the Tribunal finds that the second named applicant is the spouse of the first named applicant. The Tribunal finds that he is a member of the same family unit.
Assessment of claims
The first named applicant gave evidence to the Tribunal that she prepared her application for Protection visas and paid someone to translate it into English. She stated that what she claimed in her visa application is true and correct. She stated that she is satisfied that her visa application is accurate and complete. She stated that there have been no changes in her circumstances since she filed her application for Protection visas.
During the hearing, the Tribunal discussed with the first named applicant her background, her family in China, her education, her employment, her partner and why she fears returning to China. The Tribunal found aspects of her evidence to be vague, implausible, inconsistent and unconvincing. She made several new claims during the hearing. Her conduct was not consistent with her claims.
The Tribunal also discussed with the second named applicant his background, his family, why he came to Australia and why he fears returning to China. The Tribunal found aspects of his evidence to be vague, contradictory, implausible and unconvincing. His conduct was not consistent with his claims. There were many inconsistencies between his evidence and the first named applicant’s evidence. The Tribunal finds that the applicants are not credible or reliable witnesses for the following reasons:
First, in her visa application, the first named applicant claimed that she is from a Roman Catholic family in China and was baptised prior to coming to Australia. She claimed that she discussed biblical stories with her classmates who subsequently became pious Catholics and were involved in the underground Church. She claimed that she and her family were members of an underground Church.
During the hearing, the first named applicant gave evidence that when she was young she attended Church with her mother in China. She stated that she would go to Church two to three times a week. She stated that they were members of an underground Church and did not go to a “Church building”. She stated that it was always in someone’s home.
The Tribunal has been provided with a number of copies of photographs which include photographs of the first named applicant and her family at Church in China. She and various family members are posing with different priests in front of an altar. The altar has candles and flowers on it. In the background there is a large crucifix on the wall and religious paintings on the wall. The priest is dressed in vestments. There is a metal fence that separates the altar area from the rest of the Church and there is a step up to the altar area. One of the photographs shows the first named applicant kneeling in front of the metal fence receiving communion with other members of the congregation lined up behind her.
The photographs look like they were taken in a Church and not in someone’s home. This is not consistent with the first named applicant’s evidence that she always went to Church in China in someone’s home and never went to a Church building in China. This raises concerns in relation to the credibility of her claim that she and her family were members of the underground Catholic Church in China.
The Tribunal has been provided with copies of photographs of a Gothic style Church before and after it was demolished. The caption written underneath it is that it is the [church name] and that it was demolished in 1998. The Tribunal has no way of verifying these claims. In any event, it could not have been the Church that the first named applicant and her family attended. The first named applicant was born in [year] and would have been [age] years old when the Church was demolished in 1998. She looks a lot older in the photographs of her inside the Church. She gave evidence that she was [age range] at the time those photographs of her were taken. She would have turned [that age range] in 2003 or 2004. The Church was demolished at the time the photographs of her inside the Church were taken. The Tribunal is not satisfied that the first named applicant or members of her family attended this Church.
The applicant has provided a photograph of three women and a priest. They appear to be in a house and the priest appears to be blessing them. The Tribunal accepts that a priest blessed the three women in a house.
The Tribunal has been provided with an English translation of a document titled ‘Catholic (China) Fuzhou Archdiocese [Parish 1] – Certificate of Baptism. It indicates that the first named applicant was baptised by a priest in May 1992 at the [named] Church in the [Parish 1] in the Archdiocese of Fuzhou. The organizational structure of the Roman Catholic Church consists of parishes within a larger archdiocese with the Pope as the head of the Church.[1] The Tribunal finds it implausible that an underground Roman Catholic Church where Catholics gathered in each other’s homes in secret to pray would be called the [named] Church, have the same organizational structure as the official Roman Catholic Church and would issue formal Baptism Certificates thereby putting themselves at further risk of harm if discovered by the Chinese authorities. The Tribunal is of the view that the first named applicant’s Baptism Certificate tends to indicate that she attended an official Catholic Church in China.
[1] The organisation of the Roman Catholic Church, Bible.ca. ( type="1">
The applicants provided the Tribunal with a letter of support dated 20 October 2007 from the ‘Catholics (China) [Parish 1]’ together with an English translation. The letter indicates that the first named applicant’s mother is a faithful disciple and her parents, husband, son and daughter are also ‘Catholic disciples’. It indicates that the first named applicant left China to travel to Australia. It indicates “I would like to request Minister of the same Church in Australia assist her and plead to Australian government give her permit to work so that she can have better opportunities in spreading God’s gospels in Australia.”
The original document is typed except for the following paragraph which is handwritten at the bottom of the typed letter: ‘Note: Her whole families are very faithful Christians following the underground Catholic Church in China and now they have moved to Australia with no close friends or relatives in that country. Considering they had made contributions to our Church, I wish you would accept them and look after them. Thank you.’ (sic) The Tribunal finds it of concern that this paragraph was added in handwriting to the bottom of the typed letter. It refers to her whole family moving to Australia. This is not consistent with the earlier typed paragraph in the letter which only refers to the first named applicant coming to Australia. Her evidence is that her parents still live in China. The Tribunal is not satisfied that this handwritten paragraph was written by the author of the letter.
In view of the above, the Tribunal has serious doubts that the first named applicant attended an underground Roman Catholic Church in China. The evidence above indicates that she attended an official Church in China. The Tribunal raised this as an issue with the applicants. The first named applicant responded that the Church was built through fund raising by Church members and everyone helped to build the Church. She stated that from the outside you cannot tell it is a Church. When the Tribunal again referred to the photographs and indicated that the Church did not look like an underground Church, she responded that the believers are pious and offered money to build the Church. She stated that it does not contradict her claims. The Tribunal is not convinced that pious Church goers offering money towards the construction of their Church precludes it from being an official Church.
The second named applicant responded that he is not sure about the first named applicant’s area. He stated that he thinks building density is high is China. He stated that it may look like a normal building from the outside and like a Church on the inside. Whilst this is possible, it is highly unlikely that the Chinese authorities would not be aware of its purpose if people were attending this building to pray two to three times a week as the first named applicant claimed she and her mother did.
Further, the responses given by the applicants are inconsistent with the claims made by the first named applicant in her visa application that after 2014 gospel pamphlets were forbidden to be distributed anymore, security Police ordered the Church to demolish the cross on its roof, between 8 December 2015 and 26 November 2016 all Churches had unannounced inspections and pamphlets that referred to the Pope were confiscated by the security Police and the Police accused her Church of violating the patriotic Church’s policy and neglecting government decrees. All of these factors tend to indicate that the Chinese authorities were fully aware of the existence of the Church that the first named applicant attended, did not seek to shut it down, were enforcing the policies of the patriotic Church and that this was an official Catholic Church
The Tribunal is not satisfied, on the first named applicant’s own evidence, that she was a member of an underground Roman Catholic Church in China.
Second, in her visa application, the first named applicant claimed that when she was in Middle School she used to discuss biblical stories with her classmates and she aroused the interested of some class mates in Catholicism. She claimed that it was too dangerous to publically or formally preach the gospels to her classmates. She claimed that those classmates are now all pious Catholics involved in the underground Church. The Tribunal finds it implausible that her sharing some stories from the Bible with her classmates would result in her converting them to all become pious Catholics in the underground Roman Catholic Church.
In her visa application, the first named applicant also claimed that preaching the gospel is her mission and after she came to Australia in 2007 many of her classmates and countrymen accepted her preaching and converted to Catholicism. None of these converts provided any written statements or attended the hearing to provide evidence in support of her claims.
During the hearing, the Tribunal asked the first named applicant about her preaching in Australia. She stated that she preaches to friends at gatherings. When questioned further, she gave evidence that about twice every three months she and her girlfriends gather together at [a named location] and socialise. She stated that her girlfriends are of Chinese or Vietnamese or Japanese origin. She stated that not all of them are Catholics. She stated that they talk about stories from the Bible and Catholic festivals. When asked why they would discuss the Bible at social gatherings when they could go to Church and listen to the priest preach or read the Bible themselves, she responded that sometimes she and her friends have a conversation and she tries to share her experiences with them.
The Tribunal finds this evidence to be implausible and does not accept it. The Tribunal does not accept that the first named applicant converted some of her classmates in China to Catholicism and that they are all now pious Catholics in the underground Roman Catholic Church. The Tribunal does not accept that she has preached the gospel in Australia and that many of her classmates and countrymen accepted her preaching and converted to Catholicism.
Third, in her visa application, the first named applicant claimed that in 2010 she returned to China to visit her brothers and sisters, she attended several of their house Church gatherings, she learnt that the local government and security forces have supressed the activity of house Churches and members have had to be careful about being arrested. She claimed that she told Church members to listen to the Pope and to print the Pope’s gospel pamphlets regularly and spread them through the internet. She claimed that, when she returned to Australia, she sent information about the Pope to a fellow adherent in China who later got in trouble and had her personal computer checked by the Police.
During the hearing, the Tribunal asked the first named applicant whether she was involved in any Church related activities when she returned to China in 2010. She responded that they prayed every day at home. She stated that she did not go to any other Church related activities as she had [specified surgery] and did not feel well. She stated that it was very hot. When asked whether she spoke to other Church goers or gave them advice or information, she responded that when she returned to Australia she sent them some of the Pope’s articles that they cannot get in China. She then made a new claim that after 2010 she had been sending documents for a while. She stated that later one of her friends was checked by the government so she stopped.
The Tribunal asked the first named applicant how many times she sent material to friends in China. She responded that she sent material two to three times a week whenever there were updates on the Pope’s website. She stated that she sent the material on the [messaging service] on the internet. When asked the name of the Pope’s website, she responded that she could not remember. When asked what language the website is in, she responded that there is a Chinese version. When asked why she would put her friends and other Churchgoers at risk by doing this, she responded that in China a lot of information is blocked. She stated that they were eager to know more about the Pope. She stated that the material was about the Pope’s interpretation of the modern Church and the Bible and how to lead a good life.
The Tribunal asked the first named applicant whether she was aware that the Chinese government monitors the internet including [messaging service]. She responded that she knows now. When asked why, as a Chinese citizen, she only knows that now, she responded that before that they thought that “maybe they are lucky and will not get caught”. She stated that she did not know that they were very strict.
The first named applicant’s evidence to the Tribunal is not consistent with her claims in her visa application that she told Church members to listen to the Pope and to print the Pope’s gospel pamphlets regularly and spread them through the internet. The Tribunal finds her evidence and new claims in relation to sending material to friends in China via the internet to be implausible and unconvincing. It is implausible that she would have advised friends to circulate information about the Pope on the internet and they not warn her that the Chinese authorities monitor the internet. It is also implausible that she would have put her friends at risk of harm by sending them material about the Pope that is not available in China.
The Tribunal does not accept that the first named applicant was unaware that the Chinese government monitors the internet until recently. Alternatively, the Tribunal does not accept that she thought that “maybe they are lucky and will not get caught”. The Tribunal does not accept that she told Church members to listen to the Pope and to print the Pope’s gospel pamphlets regularly and spread them through the internet. The Tribunal does not accept that she sent any materials to friends in China via the internet.
Fourth, in her visa application, the first named applicant claimed that after 2014 two of her family members were arrested on charges of spreading the gospel. During the hearing, the Tribunal asked her whether any of her family members had any problems practising their faith in China. She responded that in 2012 her parents attended Church to hear preaching by a foreign priest and they were fined for that. She stated that three of her other relatives were at a festival distributing flyers to evangelise and they were arrested in 2014. When asked whether there was any reason why she had not mentioned the claims (about her parents) before, she responded that because the Chinese government’s oppression is sometimes strict and sometimes not so strict she forgot.
Later in the hearing, the Tribunal asked the first named applicant what she feared would happen if she returned to China. She responded that her home was searched again in 2018. She stated that sooner or later there will be danger for them. She stated that no matter what they will still keep evangelising as this was the mission of their lives. When questioned further, she made further new claims that her parents’ home was searched in 2010, 2013 and 2018. When asked whether there was any reason why she had not made these claims previously, she responded that she mentioned the incident in 2010 so did not mention the later ones.
In her visa application, the first named applicant claimed that two of her family members were arrested in 2014. During the hearing, she gave inconsistent evidence and claimed that three of her family members were arrested in 2014. This inconsistency in her evidence raises concerns in relation to the credibility of this claim. She also made new claims including that her parents’ home was searched by the Chinese authorities in 2010, 2013 and 2018. The Tribunal would expect her to have put her best case forward in her visa application and to have mentioned her parents being fined and their home being searched in 2010 and 2013 in her visa application. The Tribunal finds her explanation for why she did not do so to be unconvincing and does not accept it. Her delay in making these claims raises concerns in relation to the credibility of these claims.
The Tribunal raised as issues with the applicants its doubts that the first named applicant sent information about the Pope to China, that her parents’ home was searched by the Chinese authorities and that she evangelised among her friends. The first named applicant responded that she made an oath to tell the truth and everything she told the Tribunal is the truth. She stated that she did not lie.
The second named applicant responded that not lying is the baseline for Christians. He stated that even though they lived in Australia unlawfully, they had no other choice. He stated that they did not break the rule of not lying. He stated that they requested supporting letters from the Church after the Department told them to do so. He stated that He stated that they did not expect the Department to make a decision before they provided the letters. He stated that they did not provide false documents or do something for the purpose of getting a visa. He stated that the first named applicant’s family is a Christian family and there is no doubt about that. He stated that he is someone with a high education and qualifications and he feels the God out of his heart.
The Tribunal is not persuaded by the responses given by the applicants and their responses do not alleviate the Tribunal’s concerns.
Fifth, in her visa application, the first named applicant claimed that the second named applicant converted to Catholicism. During the hearing, she gave evidence that she first met the second named applicant in Australia at the beginning of 2014. She stated that he had no religion in China and had been trying to find an answer to life since he was young. She stated that she started taking him to Church in 2014. She stated that he then converted to Christianity and was baptised in 2017.
The second named applicant gave evidence that he first came to Australia [in] August 2014 on a Visitor visa. He stated that he looked around, did some research and went back to China two months later. He stated that he returned to Australia in November 2014. He stated that he then made a decision to stay here. He stated that he sought immigration advice from a migration agent in relation to how he could stay in Australia permanently and was advised that he needed to return to China and make an application for a visa there. He stated that (once his Visitor visa expired) he remained in Australia unlawfully.
The Tribunal asked the second named applicant why he lived in Australia lawfully. He responded that he came to Australia to pursue his faith. He stated that when he was in China the first named applicant guided him into the Catholic faith. He stated that she told him about freedom of religion and because of his faith he came to Australia. He stated that maybe he was too devoted to his faith and did not pay much attention to his visa. He stated that he did not do it on purpose. He stated that he did not know much about the visa system and was too devoted to his faith. The Tribunal reminded him of his earlier evidence that he had sought immigration advice from a migration agent and noted that he would have been given advice about Australia’s visa system.
The second named applicant responded that he did seek immigration advice from a migration agent and was advised to return to China and make an application there for a visa. When asked why he did not follow that advice, he responded that he could not find a Church in China that had “freedom of religious belief”. He stated that his friend told him that there are Churches here that have “freedom of religious belief”.
Later in his evidence, the second named applicant stated that his parents did not have any religious beliefs and strongly objected to him having any religious beliefs. He stated that when he was in China he only had a basic idea about Catholicism based on what he had seen online and from talking to Christians. He stated that he met the first named applicant about six months after he arrived in Australia and through her got a deeper understanding of the faith. He stated that he converted to Catholicism in mid-2015 after he attended one catechism class in April or May 2015. The Tribunal has been provided with a Certificate of Baptism and Confirmation in relation to him that indicates that he was Baptised and Confirmed [in] April 2017.
There are significant inconsistencies between the evidence given by the first named applicant and the second named applicant and within the evidence given by the second named applicant in relation to his religious beliefs in China, why he came to Australia, when he was introduced to Christianity and when he converted to Catholicism. The Tribunal put this information to the applicants, pursuant to s.424AA of the Act, and noted that it raised concerns in relation to their credibility and the veracity of their claims. The first named applicant responded that what she was told was that when the second named applicant was in China he was seeking an answer to the meaning of life. She stated that because of her he had an idea of pursuing freedom of religion.
The second named applicant responded that when he was in China he asked himself spiritual questions like “who am I?” and “what is the difference between me and others?’ He stated that he was seeking the meaning of life. He stated that he then met the second named applicant and got to know something about Catholicism. He stated that he had a “considerable education” in China and came across some new updated ideas about religion. He stated that some examples of these new theories are quantum theory and that the world is created by a wisdom creature. He stated that they try to separate the world to the smallest so they conclude there must be some wisdom creature that created those “articles”. He stated that because he is interested in those ideas he went to [another country] and also attended some spiritual classes and got some knowledge about spiritual practise.
The responses given by the applicants do not alleviate the Tribunal’s concerns.
Sixth, the first named applicant gave evidence that she started attending Church in Australia in 2007. She stated that after the second named applicant came to Australia she started taking him to Church. She stated that he attended Church every Sunday. She stated that he has not attended any catechism classes. The second named applicant gave evidence that he met the first named applicant about six months after he came to Australia. He later stated that he asked the first named applicant to take him to Church soon after he arrived in Australia because he could not wait. He stated that he started attending Church at the beginning of September 2014 and converted to Christianity in April or May 2015. He stated that he attended one catechism class and was Baptised in around May 2016. (His Certificate of Baptism and Confirmation indicates that he was Baptised and Confirmed [in] April 2017).
The second named applicant’s evidence is that he first came to Australia [in] August 2014, departed Australia ([in] October 2014) and returned [in] November 2014. If he first met the first named applicant about six months after he arrived here, he would have met her in either February 2015 or May 2015. Both he and the first named applicant gave consistent evidence that he was taken to Church in Australia by the first named applicant. If he started attending Church soon after he met the first named applicant, the earliest he would have attended Church in Australia is in February 2015. He could therefore not have asked the first named applicant to take him to Church soon after he arrived in Australia because he could not wait and he could not have started attending Church at the beginning of September 2014 as claimed.

The Tribunal raised as an issue with the applicants the inconsistencies in their evidence in relation to when the second named applicant started attending Church in Australia, whether or not he attended Catechism classes and when he was Baptised. The first named applicant responded that sometimes their memories are not good and it should be similar times. The second named applicant responded that in 2015 he tried to enrol in Catechism classes and missed the date so he had to wait for the next year. He stated that classes are held in April or May and he had to wait for one year and start in 2015. This is not consistent with documentary evidence he provided which is discussed below.
These inconsistencies within the second named applicant’s evidence and between his evidence and the evidence given by the first named applicant and the documentary evidence raise concerns in relation to his credibility and the veracity of his claims.
Seventh, the Tribunal has been provided with a number of documents including a letter dated [in] February 2017 from [Father A] from the [Community Group 1], a letter dated [in] September 2016 from [Leader A], the ‘]leader]’ at [Church 1,] [a] Chinese Catholic [church] and a personal reference dated [in] August 2019 from [Leader B]. In his letter, [Father A] states that the first and second named applicants have been regularly attending the Chinese Catholic mass at [Church 1] since November 2008 and May 2016 respectively. He states that the dates when they commenced attending Church at [Church 1] were given to him by the first and second named applicants respectively.
The second named applicant’s evidence to the Tribunal is that he commenced attending Church in Australia with the first named applicant in September 2014. However, he told [Father A] that he started attending Church in May 2016. He told the Tribunal that he attended one catechism class in Australia. The letter dated [in] September 2016 from [Leader A] indicates that he attended [Church 1] catechism classes since they commenced on 8 May 2016. He told the Tribunal that he was Baptised in around May 2016. However, his Certificate of Baptism and Confirmation indicates that he was Baptised and Confirmed [in] April 2017.
The letter dated [in] August 2019 from [Leader B] indicates that the applicants have been participants and contributors to the [Community Group 1]. It also indicates that the writer has known the first named applicant for almost ten years and the second named applicant for about two years. It is of concern that [Leader B] has only known the second named applicant for about two years in circumstances where he claims to have attended Church every Sunday with the first named applicant and to have done so since September 2014 or, alternatively, May 2016. These inconsistencies in the evidence raise concerns about his reliability and credibility as a witness.
The Tribunal is also of the view that if the second named applicant came to Australia to pursue his faith and was so devoted to his faith that he did not realise that his Visitor visa had expired and he was living in Australia unlawfully as he claims, he would have taken all necessary steps to become baptised as soon as possible instead of getting baptised approximately two years and five months after he arrived in Australia for the second time. His conduct is not consistent with his claims and raises concerns in relation to the credibility of his claims.
Eighth, in his visa application, the second named applicant claimed that he and the first named applicant are committed to preaching the gospel and defending their freedom of faith. He claimed that they refuse to take part in the Patriotic Church and have sworn their allegiance only to the Pope. The Tribunal discussed these claims with him. He stated that when he meets someone in his daily life he tries to evangelise. When asked how he does that, he responded that he does not meet a lot of new people in Australia so he does it online. He stated that he shares information about Jesus, discusses the differences between the Chinese Church and the Australian Church, shares testimonies and discusses topics such as whether God or the government controls the Church in China.
The Tribunal asked the second named applicant where this information is posted on the internet. He responded [on specified websites]. He stated that [one site] is not available in China and his account was blocked. The Tribunal asked him whether he was aware that the Chinese authorities monitor the internet. He responded that he was and that they are very strict about the internet. He stated that as a Christian it is his obligation to spread the true faith. He claimed that if he returns to China and evangelises he will become a target and will be arrested. The Tribunal finds it implausible that the second named applicant would chose to waste his time evangelising online when he was aware that the Chinese government is “very strict about the internet”, his account had been blocked by the Chinese authorities and that it was most likely that his intended audience in China would not be able to access the information he was posting online.
The Tribunal raised as an issue with the applicants its doubts that the second named posted information on the internet in the course of evangelising. The first named applicant responded that every local area is different and the situation is different from what you see online. She stated that there may be an agreement between the Chinese government and the Vatican but they do not comply with it. This response does not address the issue raised with her.
The second named applicant responded that it is true. He stated that his account has been closed on the video website so he cannot show it to the Tribunal. He stated that the audio account has been blocked but the account is still there. He stated that he can show it to the Tribunal. He stated that around 2016 he tried to negotiate with the website. He stated that he tried to find it for some time but cannot do so.
The Tribunal questioned the second named applicant in relation to what point there was in posting videos or audio material to the internet if it is blocked. He responded that as a Christian it is his obligation to evangelise and so he should try any method. The Tribunal is not persuaded by this response and does not accept it.
Ninth, the first named applicant’s conduct in Australia has not been consistent with her claims. In her visa application, the first named applicant claimed that she is from a Roman Catholic family in China and was baptised prior to coming to Australia. She claimed that she and her family were members of an underground Church. She claimed that she discussed biblical stories with her classmates who subsequently became pious Catholics and were involved in the underground Church. She claimed that the local government and security forces suppress the activities of underground Churches and members and the Police investigated organisers of Church activities in her Church and sent them to prison.
In these circumstances, the Tribunal would expect the first named applicant to have sought immigration advice and applied for protection as soon as possible after her arrival in Australia [in] October 2007 and to have ensured that she remained in Australia lawfully so as to avoid putting herself at risk of being deported to China. The applicants have filed with the Tribunal a copy of the Department’s Decision Record dated 16 September 2016 which indicates that she first arrived in Australia [in] October 2007 on a Student visa. She returned to China [in] June 2010 and came back to Australia [in] July 2010. Her Student visa expired [in] March 2011and she thereafter became an unlawful non-citizen for a period of 4 years and 9 months until she applied for a Protection visa on 23 December 2015. This was over 8 years after she first arrived in Australia.
The Department’s Decision Record indicates that when her delay in applying for a Protection visa was raised as an issue with the first named applicant, during her interview with the Department, she responded that she knew nothing about protection in Australia for more than 8 years. The Tribunal finds this to be implausible. The issues of asylum seekers, refugees and Protection visas get considerable media coverage in Australia. If she was attending Church in Australia since 2007, as claimed, and interacting with members of the Chinese diaspora she would have plenty of opportunities to obtain information about Protection visas and a referral to a migration agent.
The first named applicant’s delay in applying for a Protection visa raises concerns in relation to her credibility and the veracity of her claims.
Tenth, the records of the Department of Education indicate that the first named applicant completed her [qualification] on 17 December 2010 and has not studied since then. However, her evidence is that she has been working in Australia for a considerable period of time. This includes unlawfully after her Student visa expired and she did not have permission to work. The Tribunal put this information to the applicants, pursuant to s. 424AA of the Act, and noted that it may find that she had been working unlawfully in Australia and remained in Australia as an unlawful non-citizen so that she could continue to work here unlawfully. The Tribunal noted that it may find that she applied for Protection visas to extend her stay in Australia and to continue to work here and not because she is in need of protection.
The first named applicant responded that she was “too young”. She stated that she sought immigration advice and was told that she was not qualified to apply for protection. She stated that she was told that she needed to be a Falun Gong practitioner to apply for protection. This is not consistent with her evidence to the Department that she knew nothing about protection in Australia for more than 8 years (after she first arrived here) at which time she applied for protection.
The second named applicant responded that the first named applicant may have been young and inexperienced. He stated that it was not until he came to Australia that they got onto it and applied for protection. The Tribunal accepts that the first named applicant was quite young when she first came to Australia. However, she has demonstrated that she is a mature, independent and resourceful person in her ability to live and study in a foreign country and culture without the support of a family member and to find accommodation and employment here.
The Tribunal does not find the applicants’ responses to be persuasive and does not accept them.
Eleventh, the second named applicant’s conduct in Australia has not been consistent with his claims. His evidence to the Tribunal is that he came to Australia to pursue his faith. His evidence is that he first came to Australia [in] August 2014 as the holder of a Visitor visa. His evidence is that he departed Australia [in] October 2014 and voluntarily returned to China. He returned to Australia as the holder of a Visitor visa (which expired [in] February 2015) and he thereafter remained in Australia as an unlawful non-citizen. He did not apply for a Protection visa until 22 December 2015. During the period he was living here unlawfully, he could have been deported to China. He did not get Baptised until [April] 2017. His conduct is not consistent with his claims and raises concerns in relation to the credibility of his claims.
Twelfth, the Tribunal discussed with the applicants country information on China from DFAT and other open sources including country information provided by the applicants to the Tribunal. The Tribunal noted that the country information indicates that Fujian Province (where the first named applicant comes from) is generally more tolerant of religious practises including the practise of Christianity. The first named applicant responded that the information refers to the whole of Fujian Province which is a large area. She stated that each local government has different policies. She stated that they are strict in her hometown and there is total oppression of underground Churches. The second named applicant responded that he did not know as he is not from Fujian Province. (He is from Hubei Province).
The applicants provided the Tribunal with an article[2] which refers to a surge in Police action against Churches in China and specifically refers to a prominent and outspoken Pastor of the Early Rain Covenant Church in Sichuan Province and his wife being charged with State subversion. It refers to pressure being put on Christians to join one of the Three Self Patriotic Churches and despite this the steadily growing Christian population in China in recent years, the estimated 100 million Christians in China and many of them worshipping in underground Churches. The Tribunal notes that this country information does not specifically refer to Fujian Province or Hubei Province or to the Catholic Church.
[2] China’s pre-Christmas Church crackdown raises alarm, BBC News, 18 December 2018. (>
The applicants provided the Tribunal with an article[3] which was a report on a talk given by Stephen Mosher, China expert and social scientist, at the 2019 Rome Life Forum. In his talk, Mr Mosher referred to President Xi Jinping, his demand for total submission from the Chinese people and the impact of this on Catholics in China. He referred to the Sino-Vatican agreement in 2018, the impact of this on Chinese Catholics and the implications for other religions.
[3] Chinese Catholics to suffer worst persecution world has ever seen: Expert, LifeSiteNews, 17 May 2019. (>
The applicants provided the Tribunal with an article[4] which referred to the agreement between the Vatican and China in 2018 on the appointment of Roman Catholic bishops. It referred to the agreement giving the Vatican a say in the naming of Bishops and granted the Pope veto power over candidates. It referred to the agreement resulting in the Pope recognising seven Chinese Bishops who were appointed without the Vatican’s approval. It referred to the agreement being denounced by critics for various reasons. The applicants provided the Tribunal with another article [5] which also referred to the agreement between China and the Vatican, critics of the agreement and put it in historic perspective.
[4] Vatican signs historic deal with China – but critics denounce sellout, The Guardian, 23 September 2018. ( Love it or hate it, Francis’s China deal has a deep Vatican pedigree, Crux, 6 April 2019. (>
The Tribunal discussed with the applicants the country information in relation to the agreement between the Vatican and China including a Bishop in the underground Roman Catholic Church gaining official recognition.[6] The Tribunal noted that Roman Catholics are expected to follow the leadership of the Pope. The first named applicant responded that, as far as she is aware, the Vatican does not have diplomatic relations with China and she does not know where the Tribunal is getting its information from. The Tribunal asked her whether she had read the documents she provided the Tribunal and she responded ‘nothing further’. The second named applicant responded that there is no such agreement on who appoints the Bishops. The Tribunal suggested that he read the articles provided to the Tribunal. He insisted that, as far as he was aware, there was no such agreement and the Chinese government controlled that.
Other considerations
[6] Bishop from China’s ‘underground’ Roman Catholic Church gains official recognition: State media. Japan Times, 2 February 2019. (
The Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility when assessing the applicants’ credibility.The Tribunal has also had regard to the DFAT Country Information Report on China and the Department’s Policy Guidelines to the extent that they are relevant to the decision under consideration.
Section 438 Certificate
The Tribunal informed the applicants that their file from the Department contained a Certificate under s.438 of the Act and it related to the non-disclosure of information contained on two pages in the file. The Tribunal informed them that the Certificate was issued on the basis that it was contrary to public interest to disclose the information because it relates to internal working documents and business affairs of the Department. The Tribunal informed them that one page of the information subject to the s.438 Certificate relates to an email confirming an interpreter for the interview and the second page relates to a note in relation to why the second named applicant wanted a visa to come to Australia. The Tribunal informed them that the information on these two pages were not relevant to the issues before it and, in its opinion, the s.438 Certificate did not appear to be valid.
The Tribunal invited the applicants to make submissions on the validity of the s.438 Certificate. The first named applicant declined to do so. The second named responded that this was the first time he had heard about this and was perplexed. He stated that if the Tribunal was of the view that it was not valid, he agreed with the Tribunal. The Tribunal is of the view that the s.438 Certificate does not appear to be valid as it does not specify a reason that could form the basis for a claim to public interest immunity.
Findings
Having considered all of the applicants’ claims and all the evidence, the Tribunal finds that the applicants are not witnesses of truth. The Tribunal finds that they fabricated their material claims for the purpose of obtaining Protection visas.
The Tribunal accepts that the first named applicant was born on [date] at Changle in Fujian Province in China. The Tribunal accepts that she came to Australia [in] October 2007 for the purpose of studying here. The Tribunal accepts that she returned to China [in] June 2010 and came back to Australia [in] July 2010. The Tribunal accepts that she is from a Catholic family in Fujian Province and that several generations of her family have been Catholics. The Tribunal accepts that she has been attending [Church 1] since November 2008 (as she stated to [Father A]).
The Tribunal is not satisfied on the evidence before it that the first named applicant or any member of her family were or are members of the underground Roman Catholic Church in China. It follows that the Tribunal does not accept any of her claims that flow from this. Based on the evidence before it, the Tribunal is of the view that she was a member of the official Catholic Church in China and was Baptised in that Church.
The Tribunal does not accept that the first named applicant converted some of her classmates in China to Catholicism and that they are all now pious Catholics in the underground Roman Catholic Church. The Tribunal does not accept that she has preached the gospel in Australia and that many of her classmates and countrymen accepted her preaching and converted to Catholicism. The Tribunal does not accept that she has evangelised in China or in Australia.
The Tribunal does not accept that when the first named applicant returned to China in 2010 she told Church members to listen to the Pope and to print the Pope’s gospel pamphlets regularly and spread them through the internet. The Tribunal does not accept that after she returned to Australia she sent information about the Pope to Roman Catholics in China via the internet. The Tribunal does not accept that she was unaware that the Chinese government monitors the internet until recently. Alternatively, the Tribunal does not accept that she thought that “maybe they are lucky and will not get caught”.

The Tribunal does not accept that since 2012 the first named applicant’s parents were penalized for attending sermons given by foreign priests. The Tribunal does not accept that after 2014 two or, alternatively, three of her family members were arrested on charges of spreading the gospel. The Tribunal does not accept that her parents’ home was searched by the Chinese authorities in 2010, 2013 and 2018.
The Tribunal accepts that the second named applicant was born on [date] at Wuhan in Hubei Province in China. The Tribunal accepts that his parents are atheists. The Tribunal accepts he first came to Australia [in] August 2014 on a Visitor visa and did some research on Australia. The Tribunal accepts that he departed Australia [in] October 2014 and returned [in] November 2014 with the intention of living in Australia permanently. The Tribunal accepts that he met the first named applicant approximately six months after he came to Australia. The Tribunal accepts that he and the first named applicant got married at [Church 1] [in] December 2015.
The Tribunal does not accept that the second named applicant came to Australia to pursue his faith. The Tribunal does not accept that when he was in China the second named applicant guided him into the Catholic faith. The Tribunal does not accept that he asked the first named applicant to take him to Church soon after he arrived in Australia because he could not wait. The Tribunal does not accept that he started attending Church in Australia at the beginning of September 2014 and converted to Christianity in April or May 2015. The Tribunal accepts that he started attending mass at [Church 1] in May 2016 (as he stated to [Father A]), attended Catechism classes and received Baptism and Confirmation [in] April 2017.
The Tribunal does not accept that the second named applicant evangelised online and posted religious information or material online. It follows that the Tribunal does not accept any of his claims that flow from this. The Tribunal does not accept that the applicants are committed to preaching the gospel and defending their religious freedom and that evangelising is the mission of their lives. The Tribunal does not accept that they have refused to take part in the Patriotic Church and have sworn their allegiance only to the Pope.
The Tribunal is not satisfied, on the evidence before it, that the applicants will evangelise or have any desire to evangelise if they return to China now or in the foreseeable future. The Tribunal is not satisfied, on the evidence before it, that they will attend an underground Roman Catholic Church on their return to China now or in the foreseeable future. The Tribunal is of the view that they are both opportunistic and have made these claims as a means of obtaining permanent residence in Australia.
The Tribunal is not satisfied that the applicants are at risk of serious harm or significant harm for any of the reasons claimed if they return to China now or in the reasonably foreseeable future.
Does Australia have protection obligations to the applicants under the refugee criterion?
Having considered all of the applicants’ claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal finds that there is no real chance that the applicants will suffer serious harm for reason of their religion or any other reason set out in s.5J(1)(a) of the Act if they return to China now or in the reasonably foreseeable future. Therefore, the Tribunal finds that they do not have a well-founded fear of persecution and are not refugees as defined in s.5H of the Act. Accordingly, the Tribunal finds that they do not satisfy the criterion in s.36(2)(a) of the Act.
Does Australia have protection obligations to the applicants under the complementary protection criterion?
As the Tribunal has found that the applicants do not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether they may nevertheless meet the criterion for the grant of Protection visas pursuant to the complementary protection criterion.
Having considered all of the applicants’ claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal is not satisfied that the applicants will be arbitrarily deprived of life, the death penalty will be carried out on them, they will be subjected to cruel or inhuman treatment or punishment or they will be subjected to degrading treatment or punishment if they return to China now or in the reasonably foreseeable future.
Accordingly, 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, there is a real risk that they will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that they do not satisfy the criterion in s.36(2)(aa) of the Act.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act.
There is no suggestion that the applicants satisfy s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a Protection visa. Accordingly, they do not satisfy the criterion in s.36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicants Protection visas.

L. Symons
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 6836

17 December 2019

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Immigration

Administrative Law

Statutory Interpretation

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Natural Justice

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Appeal

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