1620392 (Refugee)

[2017] AATA 1351

1620392 (Refugee) [2017] AATA 1351 (26 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1620392

COUNTRY OF REFERENCE:                  China

MEMBER:James Silva

DATE:26 July 2017

PLACE OF DECISION:  Sydney

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

Statement made on 26 July 2017 at 12:10pm

CATCHWORDS

Refugee – Protection visa – China – Political opinion – Founder of secret group – Reforms to education and political system – Discovery by authorities of group – Credibility  issues – Evidence vague, hesitant and uncertain

LEGISLATION

Migration Act 1958, ss 5(1), 36, 65, 91, 499

Migration Regulations 1994, Schedule 2, r 1.12

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicants are a married couple [ages], and their [children], from China.

2. The first-named applicant (‘the applicant’) most recently arrived in Australia [in] April 2013, as the holder of a [temporary] visa. She first arrived in Australia [in] June 2009, and made several return trips to China.

3. [In] June 2013, the applicant lodged a Protection visa application. The second-named applicant, her husband, and [her] [children], were included in the application as family members who do not have protection claims of their own. The applicant parents attended an interview with the delegate of the Minister for Immigration [in] December 2013.

4. [In] March 2014, the delegate refused the applications pursuant to s.65 of the Migration Act.

5. The applicants lodged an application for review of the delegate’s decision [in] April 2014. The applicant parents appeared before the Tribunal, differently constituted (the ‘first Tribunal’) on 16 October 2014 and 4 November 2014. On 11 November 2014, the Tribunal affirmed the decision not to grant the applicants Protection visas. The applicants sought judicial review of that decision. The Federal Circuit Court dismissed the application for judicial review, but [in] November 2016, the Federal Court set aside the Tribunal’s decision and remitted it to the Tribunal for reconsideration according to law. The matter is before the current Tribunal pursuant to the order of the Federal Court.

6. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether she is entitled to complementary protection. The relevant law is in Attachment A. 

7. For the reasons below, the Tribunal has concluded that the decision under review should be affirmed. In brief, the applicant is a former [teacher] in China, who claims to have founded a secret group in 2007, whose aim was to reform [education] in China, and ultimately the political system. The applicant claims to have continued her work with this dissident group after coming to Australia in 2009, and during her annual return trips to China. On her last visit, she learned that the Chinese authorities had discovered the group, arrested participants and harassed her family. She fears that they will target her because of her role in the group, and her dissident political opinion. The Tribunal has found that these claims lack credibility, and that Australia does not have protection obligations in respect of the applicant.

   CLAIMS AND EVIDENCE

   Claims

8. The applicant is a [age] woman from Hebei, China. The other applicants, who do not have protection claims of their own, are her husband and the couple’s [children]. The applicant worked as a [teacher] in China before coming to Australia in 2009.

9. The applicant claims to fear that the PRC authorities will persecute or significantly harm her if she returns to China, because they consider her to have been involved in an ‘anti-Communist’ organisation; they have therefore blacklisted her. She also claims to have a political opinion, opposed to the PRC authorities and their enforcement of Communist ideologies on [school] children. She claims that she cannot express or act on this political opinion, in China, without running the risk of being persecuted or significantly harmed.

10. The Society: The applicant claims that in 2007, she and some like-minded colleagues set up a group, [(the ‘Society’)], to meet regularly to exchange views on the reform of education, in particular, the removal of the [educational program] and other political forces from [school] education. They met secretly. The group grew over time, and the applicant met up with them during her return visits to China in 2010, 2011 and 2012, without incident. During a visit in 2013, a friend alerted her that city officials had arrested key members of the Society. The applicant changed her schedule and rushed back to Australia to avoid arrest. The applicant has since learned that the police discovered her role from their interrogation of her colleagues. In May 2013, they arrested her father, and subjected him to mistreatment, while demanding he reveal the applicant’s whereabouts. They have also made her family members subject to investigations. She fears the PRC authorities will persecute or significantly harm her on her returns.

11. Political opinion: Related to her claimed involvement in the Society, the applicant claims to strongly oppose the Chinese education system, especially the political indoctrination of [school] children. She claims to be opposed more generally to the Communist regime.

    Background

12. The applicant is a [age] woman born in [Hebei] Province. She is a member of [a certain] ethnic group, and a Muslim. She lived in [City 1] from at least 2003 until her departure for Australia in 2009.

13. The applicant studied from [year] to [year], obtaining a [qualification] in [City 1] in [year]. She then worked as a teacher in the [City 1] School from 1990 to June 2009, when she departed to come to Australia. During this period – from 2000 to 2004 – she also undertook a 4-year teacher training refresher course at [a] University. The applicant’s widowed father lives in China. She has [siblings].

14. The applicant said that, after arriving in Australia, she helped her husband with [his work], and then started [working], which she continues to do on weekends. Her main employment now is in a [factory].

15. The second-named applicant (the applicant husband) is [an age] man from [City 1], who is included in the application as a member of the applicant’s family unit, who does not have protection claims of his own. He attended school from [years], and states that he was a ‘[occupation]’ (no further details provided) before coming to Australia. At hearing, he said that he owned and operated a [certain] shop in China. His business partner ran it after the applicants came to Australia, and sold it about a year later. It appears that he was initially involved in [occupation] (or similar) in Australia, but is now involved in providing [certain services] for businesses.

16. The [remaining] applicants are the [children], aged [ages]. They are currently studying [in] [Australia].

17. The applicant applied for [a temporary] [via] [in] July 2008. This was granted [in] January 2009, and the applicant arrived in Australia [in] July 2009. From that time, she departed Australia and returned on several occasions:

    ·     Departed [in] July 2010, returned [in] August 2010

    ·     [date] April 2011 to [date] May 2011

    ·     [date] March 2012 to [date] April 2012

    ·     [date] April 2013 to [date] April 2013

18. The applicant parents told the Tribunal that the applicant husband started preparing for the family’s migration from China in mid-2007, given his concerns about the applicant’s political activities and the risks they entailed. He visited Australia in early 2009 for several months, and returned Australia in July 2009 with all the family members.

19. [In] June 2013, the applicants lodged the Protection visa application that is the subject of this review.

    Evidence

20. The evidence before the Tribunal includes the following relevant material:-

    §The applicants’ protection visa application form lodged [in] June 2013. The form includes a detailed statement, in Chinese and English, stating the applicant’s reasons for claiming protection. Attached to the forms are partial photocopies of the applicant parents’ PRC passports.

    §A later submission includes forms and photocopies of ID documents relating to the applicant children, including photocopies of their PRC passports and notarised certificates relating to their birth and family membership.

    §Documents in support of the applicant’s protection claims, which the applicant submitted to the Department after her interview [in] December 2013. These concern the [(‘the Society’)][1], typed in Chinese on plain paper, with English translation:

    [1] Some of these translated documents refer to the ‘[name]’. The Tribunal accepts that this is an alternative English translation of the original Chinese text.

    -Organisational structure of the First Office of the Society Committee;

    -Organisational structure of the Second Office of the Society Committee;

    -Main guiding principles; and

    -Detailed guiding principles.

    §The applicants attended a protection visa interview (‘Department interview’) [in] December 2013.

    §The protection visa decision record (‘delegate’s decision record’) [in] March 2014. The applicants sent a copy of the decision record to the Tribunal on 3 April 2014.

    §The application for review, lodged on 3 April 2014.

    §A statutory declaration from the applicant dated [in] October 2014, covering information from independent sources (Wikipedia and Pen America, see below).

    §A further submission dated 28 October 2014, with: -

    -Copy of a purported letter from the [City 1] Municipality [government department] dated [in] May 2013, dismissing the applicant. This had apparently been sent through the messaging service QQ. It states that the [City 1] Public Security Bureau (PSB) had instructed that the applicant was involved in an illegal organisation, has ‘now run away to Australia’ and that her employment is now terminated.

    -Further country information (see below).

    §The applicant parents appeared before the first Tribunal on 16 October 2014 and 4 November 2014, to give evidence and present arguments. The current Tribunal has access to the recording of that hearing.

    §Photographs of the applicant [working] in Australia, submitted at hearing on 4 November 2014.

    §At the first Tribunal hearing, the applicant’s agent provided copies of internet articles, in Chinese only, which the applicant parents referred to in their oral evidence. The agent characterised them as follows:

    -An article discussing a speech by the PRC President describing the Chinese Communist Party’s control of ideology within the Chinese military.

    -An article concerning lack of freedom to protest in China, the dismissal of a governor, and the arrest of protestors.

    -An article concerning the wrongful conviction of a person in Mongolia, which it was suggested was indicative of the PRC authorities’ approach to investigations.

    §Submission dated 24 March 2017, which includes the following: - summary of the applicants’ migration history, a summary of relevant refugee law, and an overview of the protection claims, Department’s decision and first Tribunal’s decision.

    §The applicant provided copies of further country information, including (among other things) the US State Department’s 2013 Report on Human Rights Practices in China, and its updated 2016 equivalent.

21. The first- and second-named applicants (the applicant parents) appeared before the current Tribunal to give evidence and present arguments, on 27 March 2017. The hearing was conducted with the assistance of an accredited interpreter in the Chinese (Mandarin) and English languages. The Tribunal took evidence from both applicant parents. The applicant wife confirmed that the children were aware of the application and the hearing, but did not have claims of their own and did not wish to give evidence. The applicants were represented in relation to the review by their registered migration agent.

22. A post-hearing submission dated 3 April 2017 addresses a number of concerns that arose at the most recent Tribunal hearing.

23. At the most recent Tribunal hearing, the applicant gave the Tribunal a copy of a booking reservation showing that a flight to Beijing [in] April 2013, and scheduled return to [Australia] [in] May 2013. She also submitted a photocopied page of her passport, with an Australian entry stamp showing that she in fact returned [in] April 2013.

24. As noted above, the Tribunal has received a range of country information, mainly about human rights practices in China.

    Country of Reference / Receiving Country

25. The applicants hold passports of China (the People’s Republic of China, PRC), and claim to be PRC nationals. They speak Mandarin, and are familiar with that country. The Tribunal accepts that they are PRC nationals. China is therefore the country of reference for the purpose of assessing the applicant’s claims to be a refugee, and the receiving country for the purpose of assessing her eligibility for complementary protection.

    CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

    Credibility

26. The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and in evaluating the applicants’ evidence.  

27. The Tribunal notes that there is no requirement in law that evidence must be independently corroborated before it can be accepted, and that applicants for protection visas are often unable to support claims by documentary or other proof. In the present case, the applicant claims to have founded a secretive organisation, which the Chinese authorities discovered only during her most recent visit to China. By their very nature, such claims might not be substantiated by documentary or similar evidence, and might indeed rely on messaging services or other means to maintain secrecy. It follows that the Tribunal has no expectations that the applicant would be able to present corroborative evidence directly relating to the organisation, and would not necessarily draw adverse information from the absence of such evidence. At the same time, the Tribunal considers that documents relating to such a secret organisation could be relevant, and merit critical attention and scrutiny.

28. The applicant and her representative impressed on the Tribunal that she has presented detailed, consistent evidence, at both the primary stage and during the two reviews. The Tribunal acknowledges that these are important aspects of credibility assessment, but not conclusive. It is also well-established that the Tribunal must consider the evidence in its entirety. This may involve considering the probative value and relevance of evidence to the applicant’s claims; the applicant’s conduct; and his/her evidence about matters that are peripheral or consequential to their claims, yet nonetheless relevant to fact-finding.

29. In the present case, the Tribunal found the applicant’s claims to be reasonably detailed, including the names of the people she formed the secret political society with, the society’s structure, their schedule, the steps that led to her discovery, and the PRC authorities’ pursuit of her family. She has been reasonably consistent, too.  

30. However, it has broad concerns about the applicant’s claims and supporting evidence, and ultimately her credibility. At hearing, she recounted the details of her claims, and described at length and in an animated fashion her criticisms of the Chinese education and political system. However, the Tribunal considers that her claims were narrowly defined, and appeared rehearsed. In its view, she struggled to provide meaningful detail and context. For instance, when asked about her first disclosure to her husband of her dissident activities and the details of her (claimed) hurried departure from China during her last visit – issues which the Tribunal flagged its interest in also taking separate evidence from her husband – the applicant’s evidence became vague, hesitant and uncertain. Of particular concern is the applicant’s evidence about her immediate response after the PRC authorities allegedly arrested her colleagues, and her hurried departure from China.

31. The Tribunal took evidence from the applicant separately from the second-named applicant, with a view to testing the consistency of their accounts. As noted above, the applicant’s evidence on these matters was hesitant, vague and ambiguous. She appeared not to be recalling her lived personal experiences, but rather giving generalised answers, consciously trying to avoid precise information that might lead the Tribunal to identify inconsistencies in their evidence. In the end, the Tribunal found this evidence to be of low probative value, due to its general nature. It therefore places minimal weight on those points which were consistency, and draws no adverse inferences from the minor inconsistencies that became apparent in the applicant parents’ evidence.

32. Overall, the Tribunal formed the impression that the applicant gave detailed, consistent evidence in relation to her stated claims, but this appeared to be rehearsed, lacking in context and somewhat contrived.

    The applicant’s work as a teacher in China

33. The applicant worked as a teacher for some [number] years at the [City 1] School. She confirmed that she had a successful career there, up to the time of her departure for Australia in 2009.

34. The applicant addressed the Tribunal’s observation that her long-term teaching career in China might suggest that she had done well in the Chinese education system, and did not have any major disagreements or conflict that formed the basis for a political opinion. She said that she had had some conflict. She gave two examples of the experiences that led her to resent the education system, and Chinese policies. One of these was having been forced to have an abortion in the second year of her marriage (because she did not have prior permission from her employer). The other was the death of [a student], who had been punished harshly for failing to [adhere to the educational program]. (The Tribunal discusses these in more detail below.)

35. The Tribunal notes that it is difficult to verify either of these claimed incidents, but the critical issue is whether they (or other factors) influenced the applicant’s political views and conduct (which is assesses below). As a preliminary observation, however, the Tribunal notes that these incidents do not appear to have affected the applicant’s continued employment or performance, or her willingness to return to China (after first visiting Australia in 2009). There is also no evidence of them having influenced her conduct, other than in her claimed work for the Society (discussed immediately below).  

    The Society – foundation and the applicant’s involvement

36. The applicant stated that, in 2000, she started a 4-year teacher training refresher course at [a] University. She got to know some other teachers, Ms [(‘ZZ’)] and Mr [(‘TL’)]. They became close friends, and graduated from the course together in [year]. The applicant claimed that the trio kept in touch afterwards.

37. In February 2007, the applicant and her two friends established [(‘the Society’)], of which she was the founder. She claimed this innocuous name was meant to avoid the attention of the PRC authorities. The applicant claimed that the Society met once a month. Its purpose was to exchange views on education, and give members a chance to vent their frustration with the education system and the Chinese Communist Party (CCP). From an initial group of three, it grew to [number] members at the time the applicant left to come to Australia in 2009. At hearing, she thought that there were about [number] members in 2008. By 2013, it had grown to [number] members.

    Motivation to establish a Society

1. The applicant claimed that her overall political opinion and her experiences as a teacher made her critical of the Chinese [school] system, and especially the [educational program] as a political tool. She found common ground with ZZ and TL, and this led them to form a group. In other words, their immediate dissatisfaction was with the [school] system, but it extended more broadly to China’s political system.

2. As noted above, the applicant described how she formed these views during her teaching career. She said there were many instances over the years when she felt frustrated or angered by what she witnessed as a teacher. In both her written and oral evidence, she gave background information on the education system, the role of the [educational program] in [schools], and what she considered to be the political indoctrination of young children.   At hearing, she gave details on adverse experiences that propelled her opposition to the PRC educational and political systems. The applicant’s statements about the [practices] were lengthy, and often delivered in an emotive manner.

3. She stressed that she opposed the political indoctrination of young students, as she felt that schools should concentrate on teaching basic knowledge and skills. The Tribunal noted that the [educational program was] established many years ago [and] the applicant appears to have had a successful career as a teacher, up to 2009, without major incident. The applicant agreed, but said that it was an accumulation of annoyances and frustration that motivated her to become active.

4. The applicant said one trigger was an incident in mid-2006. One [student] [did not adhere to the educational program]. He was punished by being forced to stand in the school playground for hours, in the hot July sun. He passed out, and eventually died in hospital. Although the apparent cause was an undiagnosed [health] condition, the applicant felt that it had been unfair to punish him in that way. She felt even more resentful when the school administration forbade the teachers and pupils from discussing the incident.

5. The applicant gave as another example of the injustices in the education system that, as a female teacher, she was required to apply for permission to have a child. She fell pregnant in the second year of her marriage, and management asked her to have an abortion. She implied that she succumbed to the pressure and proceeded with the abortion.

6. The applicant’s account - of China’s [school] system, with the [educational program] promoted as a political tool, the bureaucracy, the enforcement of family planning regulations and strict discipline at schools – was broadly in line with general country information. The Tribunal has taken this into account in its overall assessment. The key issue, however, is whether she was in fact engaged in political matters that brought her to the attention of the PRC authorities.

   The applicant’s involvement in the Society

7. The applicant claims that she was the founder of the Society, with ZZ and LT. According to her statement of claims, it had two main areas of activity: (a) monthly meetings, in which members exchanged views (for instance, on the need to abolish the [educational program] from schools), and (b) recruiting reliable people who shared the group’s views.

8. The pre-hearing submission highlighted that the Society had broader aims in the education sector, such as achieving more equality and fairness, and reducing corrupt behaviour. It also had the longer-term goal of political reform in China.

9. The applicant told the Tribunal at hearing that Society members discussed issues, and also prepared materials for students to use after school. A major focus had been to learn about education systems and experiences in other countries; the applicant implied that her stay in Australia had advanced this cause. The applicant’s account of the Society’s goals and activities was, in the Tribunal’s view, generalised and repetitive.

10. The Tribunal asked the applicant about the specifics of her involvement, and her husband’s knowledge of it (as she had claimed that he started preparations to come to Australia as early as mid-2007, fearing that her activities would eventually cause the family problems).

    §  According to the applicant’s written statement of claims, and the purported internal documents, the Society met each [month], from [hours]. The applicant initially told the Tribunal that the Society met about fortnightly, and had no regular venue. She then corrected this to say that they met monthly, at ZZ’s home. The applicant’s husband said that the group initially met often, and then about once a month.

    §  Asked about her husband’s discovery of her involvement, the applicant said that she used to go out almost every [weekend] but, when reminded of her claims that it met once a month, clarified that she, ZZ and LT initially met once a week or so in the first three months. The applicant could not remember details of when her husband found out about the group – she thought that it might have been on a [weekend] afternoon. She commented that he thought she had been having an affair. In separate evidence, the applicant’s husband stated that the applicant often went out on [weekends]. He became suspicious and angry, and wondered if she was having an affair. Eventually, she told him that she had set up a political group. The applicant said that her husband never met ZZ or LT in person. When asked about this point, the applicant’s husband gave a vague, ambiguous response.

    §  The Tribunal asked the applicant why, if she was engaged in risky political activities, her husband had taken the lead in preparing for the family’s departure from China, by starting preparations in mid-2007, and making an initial visit to Australia in early 2009. She replied that he realised that she was determined, and could not be dissuaded. So he decided to start preparing for the family’s migration, hoping that she would wind back her political work slowly. In a similar vein, the applicant’s husband said that the applicant has a radical streak, whereas he is conservative and not a real risk-taker. This explained why she continued her political activities, while he meanwhile paved the way for the family’s eventual emigration. 

11. The applicant’s evidence about her activities in the Society, her schedule and commitments included some specific information, and was broadly consistent over time. The second-named applicant generally supported this in his separate evidence. Both parent applicants mentioned that the applicant’s activities had caused some marital tension. The Tribunal acknowledges and gives due weight to these factors. However, an overarching concern is that it was difficult to elicit further specific detail or contextual information from the applicant beyond her written statements and previous oral evidence.

    Existence of the Society

12. A significant, related concern is whether the Society exists at all. The Tribunal accepts that such a secretive group, by its very nature, would not normally be subject to independent corroboration, such as public references, and therefore draws no adverse inference from the lack of such material/  

13. The applicant submitted some documents which were purportedly internal records demonstrating the Society’s existence. In December 2013, she produced copies of four documents, purportedly from the Society’s records.  These are in summary:

    §  The ‘organisational structure’ of the ‘First Office’ shows the applicant as the [senior role], and [number] office bearers, including ZZ ([role]) and LT ([role]). There are a total of [number] positions. The applicant said that the ‘First Office’ reflects the Society’s structure at the time of its establishment in 2007 (except that she later became a kind of external consultant).

    §  The applicant explained that the ‘Second Office’ resulted from the Society’s reorganisation and elections around May 2009, when she vacated her [senior role] position to move to Australia. The organisational chart shows that ZZ took over as [senior role], and there are a total of [number] positions on the committee. The applicant is listed as the ‘[role]’, in other words, a kind of external consultant. As noted above, the applicant thought that the Society had [number] members at this time. 

    §  The guiding principles of the Society, in the detailed version dated [in] September 2007, and an undated shorter version, describe the Society’s programs (a ‘political program’, and an ‘educational program’) and various practical aspects of the association, such as its goals, activities, meeting times and membership requirements. The political program includes the following text: ‘Uniting all democratic parties to overthrow and end the one-party system and dictatorial ruling authorities by the Chinese Communist Party […]’.

14. The applicant submitted copies of these documents, in Chinese, printed on plain paper without any indication of their provenance. The Tribunal has difficulty believing that a secretive society - whose immediate purpose was to meet in person and exchange views on education reform, and whose membership was less than [number] in 2007, and which had grown to about [number] in May 2009 – would have any need to record an organisation chart, ‘guiding principles’ that include the exact time of the monthly meetings, its educational and broader political goals (such as to ‘change the one party dictatorship’), and the names of office holders. At hearing, the applicant explained, without further insight, that these documents were for internal use. Asked about the possible risks this might entail, she said that the documents recorded only the names of leaders (although they appear to involve about half of the membership in both 2007 and 2009), and were stored digitally, on her computer. Asked about the safe storage of this information and how she accessed it in late 2013 (when she submitted it to the Department), she said that she believes that she has still has the computer, but is not sure. The Tribunal is concerned that the applicant did not know how she was able to obtain, in December 2013, copies of sensitive documents allegedly produced in 2007 and 2009. This raises serious questions about when, in fact, the documents were produced.

15. In response to the Tribunal’s concerns about the genuineness and purpose of these documents, the applicant stressed that she had submitted these documents on her own initiative, and not in response to the Tribunal’s request or concerns. This appeared to be a reference to the first Tribunal’s concerns (which focused in part on the lack of ‘credible independent evidence’ that the Society exists), by emphasising that she had already provided these materials to the Department. In the Tribunal’s view, the timing of when she submitted them – whether at the primary stage, or later – has little bearing on what weight can be placed on them as reliable, independent corroboration of the Society’s existence, its structure and its purpose.

16. The Tribunal found the applicant’s evidence about the prevenance, purpose and current storage of these documents to be unpersuasive. It is particularly concerned about her inability to explain how she accessed these documents in Australia, given that they would appear to incriminate the persons named in them, in the eyes of the PRC authorities. It is not satisfied that any of these documents were produced in 2007 or 2009, in connection with the setting up and organisation of the Society. Instead, the Tribunal finds that the applicant produced (or arranged to have them produced) for the purpose of this application. Accordingly, it places no weight on them as independent corroboration that the Society exists (or existed), or of the applicant’s involvement in it.

17. The applicant also submitted a copy of a document, purportedly a notification dated [in] May 2013, from the [government department] office to the [school] where she previously worked. This document refers to the Society, the applicant’s involvement in it and the PRC authorities’ view that it is a subversive organisation. The applicant told the Tribunal that she took leave without pay from the [school], and was originally entitled to retain her position until retirement (ie have indefinite leave without pay). There is no supporting evidence to support this assertion (such as documents to show that the applicant took indefinite leave on such a basis, or country information to confirm this practice in Chinese [schools]). Furthermore, given the Tribunal’s view that the applicant produced documents relating to the Society, it is disinclined to give weight to this letter as independent evidence that the Society exists (or of the applicant’s links with the Society, the PRC authorities’ discovery of it, or the school’s termination of her indefinite unpaid leave).    

18. In sum, the Tribunal finds no persuasive evidence, beyond the applicant’s own statements, that the Society existed. This, together with its view that her account of her activities was problematic, adds to the Tribunal’s doubts about the truthfulness of her claims. It returns to this issue in its overall findings, below.

    The applicant’s participation after 2009

19. The applicant arrived in Australia in April 2009, and claims that in May 2009, the Society elected its ‘Second Office’ and appointed her as the ‘[role]’, a kind of external consultant. This was partly in recognition of her as the Society’s founder. She claimed that she kept in contact with Society members via social media and messaging services, such as QQ and Wechat. On her return trips to China, she used to meet members, and show them materials from Australia. The applicant told the Tribunal that she carried with her photographs, craft items, and various notes and reports, in Chinese and English. Meanwhile, she also used messaging services to communicate with and send other material to her former colleagues. The Tribunal has received no examples of these materials.

20. The Tribunal has significant doubts about the applicant’s claim to have been active in such a group from the time she first left China for Australia, in April 2009.

    §  As an initial comment, it is difficult to imagine what kind of role the applicant, now resident in Australia, was able to provide to this small dissident group, particularly given (a) the Society’s pressing need for secrecy, (b) its work in recruiting new members, and (c) the need for such a leader to keep abreast of local developments (such as changes in education policies and personnel, and political changes).

    §  In terms of her contribution to the group, the applicant said that, in her honorary role as the group’s founder and an external consultant, she obtained useful information about [education] in Australia. The Tribunal found it difficult to elicit details of what exactly the applicant was providing to her colleagues. When asked what materials she took back to China during her return visits, she spoke vaguely about photographs, craft items, and various notes and reports. The Tribunal does not accept at face value that any of these items were linked with the applicant’s claimed dissident activities.

    §  As noted above, the applicant said that she communicated with members of the group through QQ and Wechat, which provide some measure of security in their communications. At the same time, it is difficult to produce screenshots or other evidence showing the content of these discussions.

    -   At the recent hearing, the applicant said that she had offered to give the previous Tribunal member the user name and password for her QQ account, and voiced her displeasure that he had rejected her claims without taking her up on this offer. [She said that she had expressly invited the member to confirm on her QQ account that a former student had sent her a letter of dismissal from the school, and that it was a ‘genuine’ document. However, her comment arguably applies more broadly to her other communications about the Society, assuming that they are accessible.] Indeed, the applicant told the Tribunal that she now has no examples of communications from the Society, as these have all been destroyed.

    -   The current Tribunal undertook to examine and take into account any screenshots that the applicant might wish to submit, with translations, from any online services. It has received no further material of this kind.

    -   The Tribunal places no weight on the applicant’s general offer to give it access to this account. First, it has no persuasive evidence to indicate that such an account exists and holds relevant material. Second, even if it were able to access an account and find potentially relevant material, it would be unable to read untranslated Chinese text, to evaluate when the account was established, or to form a view as to its purpose and/or the content of any exchanges that might be visible. Finally, it considers that the applicant has had ample opportunity to provide any relevant material, with translations, if she considered it relevant to her protection claims.  

    §  The Tribunal explored with the applicant whether the Society made contact with any like-minded groups outside [City 1], and whether she had engaged in political activities in Australia. In both instances, the applicant replied briefly ‘no’.

    -   The Tribunal is concerned that a dissident group, which had allegedly been set up in 2007, grew rapidly and had broad objectives for education and political reform at a national level – such as abolishing the [educational program] and reforming the Chinese political system, had not at least considered or explored what like-minded groups might exist outside [City 1], and given thought to possible links. It was apparent at hearing that the applicant had not turned her mind to this.

    -   Similarly, the applicant appears to have had many opportunities in Australia to explore whether there are like-minded people in Australia or China (apart from the Society itself); to discover whether others share her objectives; and even discuss political activities. Again, the Tribunal formed the impression that the applicant had not turned her mind to these matters. This adds to its doubts about her claims.

    §  Finally, the Tribunal queried what precautions the applicant took when returning to China regularly, particularly in light of the group’s secretive nature and rapid growth, and hence the ever-present risk that the authorities would discover it. She replied that she did not take precautions. In exploring this, the Tribunal had no fixed idea of what precautions a person involved in a dissident group might contemplate, but the applicant’s response added to the impression that she was not in fact part of any dissident group, and had not turned her mind to the need for contingency plans or similar.    

21. The above concerns – taken together with the Tribunal’s doubts about whether the Society exists and whether the applicant engaged in any political activities while still living in China – lead the Tribunal to disbelieve that she was involved in the Society or any such group, at any time. The Tribunal finds that the applicant’s claims lack credibility as a whole. It concludes that there was in fact no Society, and that the applicant was not engaged in any activities promoting ([school]) education or broader political reform in China.

    PRC authorities’ pursuit of the applicant  

22. The Tribunal, having found that the applicant was not a member of any ‘Society’ or other dissident group, and that these claims are untruthful, has strong grounds to disbelieve all related claims, including the Chinese authorities’ alleged ‘discovery’ of the Society and, later, of the applicant’s involvement. It nonetheless addresses these claims below, in order to assess whether there are any related or residual claims that should be considered.  

    PSB discovery of the Society:

23. The applicant claimed that, during her last visit to China (March-April 2013), she learned the Public Security Bureau (PSB) had found out about the Society, and concluded that it was anti-Communist. The applicant realised that she was in imminent danger, and decided to bring forward her return trip to Australia.

    §  The applicant claimed that [in] April 2013, she was at a party with former students.

    §  A friend from the [City 1] [government agency] telephoned her to say that the PSB had discovered the Society, and concluded that it was an illegal, anti-Communist society. This friend said that ZZ, TL, MZ and about [number] others were already on a PSB blacklist (and hence their arrests were imminent).

    §  The applicant said that she immediately cancelled a meeting that she had planned for later that evening, with the Society’s second branch.

    §  The applicant had originally planned to return to Australia [in] May 2013, but brought this forward to [date] April 2014. She was able to leave China with the assistance of a friend.

1. The Tribunal has a fundamental problem with these claims, having found there was in fact no Society. Even at face value, the applicant’s account of the sequence of events that led her to realise that the PRC authorities had discovered the Society and would soon learn of her involvement, and the coincidence that this occurred just prior to her last return to Australia, are curious. A more detailed examination of these circumstances reinforces the Tribunal’s doubts, for the reasons that follow.

2. At the hearing, the applicant explained that a city official tipped her off about the PSB’s discovery of the Society. This person was not a member of the Society, but had been a classmate at the teachers college (at [a] University) and knew that she was close friends with the people who had been arrested (ZZ, TL and MZ). Even if the Tribunal were to take this claim in isolation, it is highly problematic. The applicant claimed that the city official took the initiative to alert her of the arrests, solely on the basis that s/he knew that they had been close friends during the teacher training course, almost [number] years earlier, from [years]. This leaves many loose ends – such as how the city official knew of their ongoing friendship, if the applicant and the other Society members met in secret; how s/he had the applicant’s current contact details (she had left China some four years earlier); and why, if the official was not a member of the Society and did not know of the applicant’s involvement, s/he would risk alerting the applicant about the PSB’s investigations.  

3. The applicant presented at the hearing a printout of an e-ticket, confirming that her original return date was [in] May 2013; and a photocopy of her PRC passport showing her return to Australia was [in] April 2013. The Tribunal agreed that these showed her originally planned return date and her actual return date. However, they do not show that the applicant had changed her itinerary at short notice [in] April 2013, as claimed, or in response to an imminent threat. The Tribunal flagged, for instance, that an electronic copy of the new itinerary, or a receipt for any associated booking fees, might show the date on which the booking was changed. This, in turn, might support the applicant’s claim that, faced with an imminent risk, she managed to get a flight out of China within some 36 hours. The Tribunal has received no further evidence to show that the applicant changed her return flight [in] April 2013, after she (allegedly) learned of the PSB’s pursuit of her.

4. Given the Tribunal’s rejection of the applicant’s claims to have been involved in the ‘Society’, and its broader credibility concerns, it finds that she returned to Australia earlier than originally planned for reasons unrelated to her protection claims. It does not accept that an official tipped the applicant off about the authorities’ discovery of the Society and/or her friends’ involvement in it. It also does not accept that the applicant departed China fearing for her safety, or that she had to rely on friends to ensure that she was able to depart (implying that she was fearful of the authorities apprehending and detaining her).    

   After the applicant’s departure: PSB’s discovery of her involvement:

5. The applicant claimed that [in] May 2013, the police arrested her father, and detained him for one week while they investigated him.

6. At the hearing, the applicant essentially repeated her written claims. She said that her [sibling] had telephoned her [in] March 2013,  after their father had been released, to inform her about her father’s arrest and detention for one week, due to her (the applicant’s) suspected involvement in the Society. The police had interrogated and tortured her father, pressuring him to help them find the applicant. Her [sibling] told the applicant that the police showed her father the records of their interviews with ZZ and MT, thereby confirming that they had disclosed to the police the applicant’s role in the Society. The Tribunal flagged a number of concerns about this account.

   §  There is no apparent reason why the police would show her father any interview records or name their sources. The applicant did not respond directly, but instead repeated that the police told him that ZZ and MT had informed them about the Society, and they warned him not to hide the applicant.  

   §  The Tribunal also queried why the police would not already know that she had left China, given her residency in Australia over the past four years and her departure through the airport. Again, she did not respond directly, but instead commented that they tortured her father, causing him to go deaf in one ear, and that they later interrogated her [siblings].

   §  The Tribunal asked the applicant to describe the exact circumstances in which she received the news from China about her father’s detention – that is, where she and her husband were, and what they were doing. She replied vaguely that she could not recall. In his oral evidence, the applicant husband said that his wife got the news from her [sibling], and that he was there at the time. The Tribunal found it odd that the applicant wife could not recall the details of when she received such startling news (for instance, whether she was alone at the time). The applicant husband’s later evidence does not resolve the Tribunal’s concerns.

   §  The PRC authorities’ discovery of the applicant’s involvement in the Society goes to the heart of her protection claims. Against a background of already serious credibility concerns, the Tribunal finds it difficult to believe that the applicant has been able to piece together the chain of events that explain the authorities’ discovery of her role, and what led them to her father and siblings. It is concerned that this account did not emerge as a result of communications from her [sibling], and of what the police revealed to her father during his interrogation, but rather that the applicant (and others) mapped it out to form the basis for her protection claims and eventual permanent residency.  

7. In light of these concerns, the Tribunal does not accept that the PRC authorities have enquired about the applicant’s departure, harassed or mistreated family members, or signalled their intention to pursue the applicant. This follows in large part from its adverse view of the applicant’s credibility, and rejection above of her previous claims - that she was involved in the Society or similar dissident activities, that the PRC authorities discovered this, and that they arrested the applicant’s political colleagues. Additionally, the Tribunal disbelieves the applicant’s account of her father’s interrogation, which in its view was crafted for the purpose of bolstering her protection claims, and not based on real events. This reinforces the Tribunal’s conclusion that the applicant’s departure from China in April 2013 has not resulted in any adverse incidents, such as the interrogation or harassment of family members.

8. The Tribunal accepts that the applicant’s father may have had hearing or other health problems, such as senility or depression. There is no corroborative evidence (such as medical reports) to indicate that these are the result of one or more police beatings. In light of the above findings, the Tribunal finds that they are unrelated to the applicant’s protection claims.   

   Chinese authorities – PSB black list

9. The applicant claims that she learned [in] April 2013 that ZZ, TL, MZ and others had been placed on a Public Security Bureau (PSB) ‘black list’, and about a month later, her [sibling] informed her that she (the applicant) had also been placed on such a list. According to the applicant’s account, and the purported letter from the [City 1] Municipality [government department], dated [in] May 2013, the PSB had informed the Department of the applicant’s membership of the Society, and they in turn wrote to her school demanding that she be dismissed. The applicant claims that the school then informed her [sibling], and [the sibling] contacted the applicant directly.

10. The Tribunal has significant problems in placing any weight on the purported letter, as evidence of the local PSB having identified her as a dissident, or any of the consequential acts, such as her termination of employment.  Given the extent of its concerns above, and its adverse view of the applicant’s credibility, the Tribunal does not accept that the [City 1] PSB identified her a member of any dissident group; that they informed the [government department]; which in turn instructed the applicant’s school to terminate her employment; or that this led the applicant’s [sibling] to discover that she, too, was now on a PSB black list.

11. The Tribunal considers it possible that the applicant has lost her employment with the [City 1] School, as she has not worked there for some eight years. However, it does not accept that she lost this position due to any reasons linked with her protection claims.

    The applicant’s political views

12. The Tribunal accepts that the applicant may have drawn on some personal experiences or anecdotal evidence when recounting aspects of the Chinese education system, such as the monitoring of family planning regulations among female teachers, and its strict discipline. It also accepts that, having worked in Chinese schools as well as for a private education provider in Australia, she has noticed marked differences in policies and practices; and that she prefers the Australian system.

13. The Tribunal has significant concerns, however, as to whether the applicant holds a political opinion that motivated her to engage in activism in the past, or that forms part of an ongoing political interest. The applicant’s conduct, viewed objectively, gives no hint of her being a person who has political differences with the PRC authorities. For instance, she worked as a teacher right up to the time of her departure; it was her husband (rather than she) who started to prepare for the family’s travel to Australia in mid-2007, and who then first travelled here in early 2009; and the applicant herself returned to China on four separate occasions. The lodgement of the protection visa application only in June 2013 – after the PRC authorities signalled their adverse interest in her because of the Society (a claim the Tribunal has now rejected) – further suggests that she has no strong political opinion that causes her to fear persecution or significant harm (or which she needs to suppress in order to avoid such harm). Finally, there is no persuasive evidence that the applicant has engaged in any political activities, relating to education reform in China or broader political issues, apart from her claimed work with the Society. Even when the Tribunal asked the applicant about the materials that she took back to China during her visits, she referred to photographs of children, craft items, school reports and notices, and some news items. The Tribunal is not satisfied, from this description, that they involved any material that was political in nature, or would be perceived as such.

14. In sum, the Tribunal accepts that the applicant prefers Australia’s educational system and way of life (including political freedoms). It finds her claim that she has a political opinion about the Chinese [education] system and the broader political system; that she feels motivated to act upon this conviction; and that she feels frustrated that she cannot do so safely in China, to be weak. Given its overall assessment of her activities, in China and Australia, and its adverse view of her credibility, the Tribunal does not accept that the applicant has any such political opinion.

    Findings of fact

15. The Tribunal accepts that the applicant disagrees with some aspects of China’s politics and education system, including with their focus on Communist ideology, political instruction, discipline and restrictions on dissension. However, the Tribunal does not accept that she has a political opinion, whether based on her past experiences or political analysis, that led her to set up a dissident group, the Society, or engage in activities aimed at reforming [school] education or, more grandly, China’s political system. Related to this, the Tribunal accepts that the applicant considers Australia’s approach to education and our political environment preferable to those of China, just as it accepts that she appreciates other aspects of life in Australia. However, finds that these do not amount to a relevant political opinion.

16. The Tribunal rejects all claims associated with the Society. These include: - that the applicant organised a group that met regularly to discuss reforms, and to recruit members from [City 1] to bolster their program; that the group realised the inherent danger in expressing their views and organising, and took appropriate measures (like adopting a cryptic name for the society, or meeting in secret); that in 2007, the applicant husband started preparations for the family to move to Australia, as a contingency plan; that, after arriving in Australia, the applicant continued her consultant role with the Society, by providing them with advice and external materials electronically and during her return visits; or that the applicant continued to engage in Society activities during her return visits.

17. The Tribunal also rejects all claims of past harm associated with these activities. These include: - that she and her fellow members acted secretly, in fear; that she learned of the arrest of other group members [in] April 2013, when she was in China; or that she brought forward her return flight to [date] April 2013, fearing that the PSB would soon discover her role (the Tribunal accepts that she returned to Australia earlier than originally booked, but finds this was for unrelated reasons). The Tribunal also rejects the applicant’s claims that, since arriving back in Australia, the PSB arrested her father, detained and mistreated him for a week, trying to find out about the applicant and, in the meantime, causing him serious physical impairments. It also rejects that the PSB revealed to him that they now know of her role in the Society; that she discovered she is on a PSB black list; that her employer in China (the [School]) terminated her long-term unpaid leave under pressure from the PSB and other authorities; or that the PRC authorities have subjected her father, siblings or any other persons to investigation or pressure, in their bid to locate and punish the applicant. The Tribunal does not accept any related claims of past harm linked with her now-rejected work for the Society.

18. The Tribunal finds that the applicant last departed China, and now seeks protection in Australia – together with family members – for reasons unrelated to her protection claims.

    ASSESSMENT – REFUGEE CRITERIA

19. The Tribunal now assesses whether, on the basis of the findings of fact above, the applicant’s future conduct if she returns to China, and relevant country information, she has a well-founded fear of Convention-related persecution, now or in the reasonable foreseeable future.

20. In light of the above findings - that the applicant was not involved in the Society or any other dissident activities in [City 1], and did not come to the adverse attention of the authorities - there is no basis to find that she faces a real chance of serious harm amounting to persecution, from the PRC authorities (including the [City 1] PSB, police and other security agencies, and the education authorities) due to her involvement. The Tribunal further finds that the PRC authorities will have no adverse interest in her for such reasons, or perceive her as being a political agitator.

21. The Tribunal accepts that the applicant is critical of some aspects of China’s education and political systems. However, it does not accept that she has a strong political opinion that motivates her to engage in political activity or expression. It finds that, for the main part, this is merely a preference for Australia’s approaches to [school] education and democracy, just as all of the applicants appear motivated to remain in Australia for various quality of life reasons. The Tribunal does not accept that the applicant will engage in political activities if she returns in China, and consequently face the risk of persecution; or that she will feel compelled to refrain from political activities merely to avoid the risk of persecution. The Tribunal has considered a range of country information about human rights and political freedom in China, including that submitted by the applicant and in general references, but finds nothing to displace or call into question its assessment of the applicant’s personal circumstances and her prospects if she returns to China.

22. The applicant indicated that she is a member of [a certain] ethnic group, and a Muslim; that she attended [a] Primary School, and later [a] Middle School; and that she worked at the [City 1] School. At the hearing, she presented no claims based on her [ethnicity] (most Chinese belong to the Han majority), or her Muslim faith. [Details deleted]. The Tribunal infers from this that the person who filled out the form wrote ‘[(Muslim)]’ to assist the reader in appreciating that [people of her ethnic group] are Muslims, which the applicant also is. The Tribunal is satisfied that there are no claims, actual or implied, that arise from the applicant’s ethnicity or religion. Accordingly, it finds she has no well-founded fear of persecution arising from these Convention grounds.

23. For the reasons set out above, the Tribunal does not accept that if the applicant returns to China now or in the foreseeable future that there is a real chance she will face serious harm amounting to persecution for reason of her (now-rejected) association with a dissident group promoting education and political reform, her political opinion, or in any other Convention reason.

    ASSESSMENT: COMPLEMENTARY PROTECTION

24. The Tribunal has considered whether there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to China. It takes into account all of the claims and evidence before it, and the findings above. It has also turned its mind to her future conduct if she returns to China, and any relevant country information.

25. The Tribunal finds that there is no real risk that the applicant will be subjected to harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflict on her, such as to meet the definition of torture; or to meet the definition of cruel or inhuman treatment or punishment; or to meet the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that she will suffer arbitrary deprivation of her life or the death penalty. The Tribunal finds no grounds that suggest she will be subject to significant harm, for any reason, if she returns to China.    

26. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that she will suffer significant harm: s.36(2)(aa).

    Conclusion

27. For the reasons given above, the Tribunal is not satisfied that the first-named applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, she does not satisfy the criterion set out in s.36(2)(a). Having concluded that the first-name applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that she is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

28. The second-, third- and fourth-named applicants have not made protection claims of their own, and none is apparent on the material before the Tribunal. It follows that none of them satisfies s.36(2)(a) or s.36(2)(aa).

1. As none of the applicants satisfies s.36(2)(a) or s.36(2)(aa), it follows that none of them is able to satisfy the criterion set out in s.36(2)(b) or (c).

2. As none of the applicants satisfies the criteria for a protection visa, they cannot be granted protection visas.

   DECISION

3. The Tribunal affirms the decision not to grant the applicants Protection visas.

   James Silva
   Member

   
   

   RELEVANT LAW

   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, the applicant 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.

   Refugee criterion

   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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

   Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

   Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

   There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

   Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

   Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

   Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

   Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

   In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

   Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

   Complementary protection criterion

   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 a protection 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 the applicant 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’).

   ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). 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.

   There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

   Section 499 Ministerial Direction

   In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take 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 any country information assessment 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.

   Member of the same family unit

   Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include parents and children.