1621148 (Refugee)

[2022] AATA 4750

1621148 (Refugee) [2022] AATA 4750 (26 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Stacey Nitchov

CASE NUMBER:  1621148

COUNTRY OF REFERENCE:                   China

MEMBER:Luke Hardy

DATE:26 October 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 26 October 2022 at 1:15pm

CATCHWORDS

REFUGEE – Protection Visa – China –religion – member of the Church of Almighty God – applicant will have to hide her church activities to avoid being persecuted in China – decision under review remitted  

LEGISLATION

Migration Act 1958, ss 5H, 36, 46, 65, 91, 499

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa (PV) under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, [Ms A], is a citizen of China. She arrived in Australia on [date] June 2016 on a visitor visa. She travelled to Sydney with another Chinese national and, together, they posed as a married couple booked to tour North Queensland. However, as the Department of Home Affairs later found, various documents submitted in the process of obtaining visitor visas were assessed to have been forged. [Ms A] claims that she did not join a tour.

3. [Ms A] lodged a PV application on 6 September 2016. The delegate refused to grant the visa on 28 November 2016. The other Chinese national was granted a PV at the primary stage of determination in 2016.

4. [Ms A] sought merits review by this Tribunal and the matter was constituted to me. I find her review application valid.

5. [Ms A], who has been living in Melbourne for some years, first appeared before the Tribunal in Sydney to give evidence and present arguments in an MS Teams hearing on 20 September. In this instance, the process proved unwieldy and the matter was adjourned. A second hearing was held in-person in Melbourne on 17 October 2022. [Ms A]’s adviser/representative attended both hearings, which were facilitated by interpreters in the Mandarin-English medium.

   Criteria for a protection visa

6. 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.

7. 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.

8. A person is a refugee if, in the case of a person who has a nationality, he or she is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she is outside the country of his or her former habitual residence and, owing to a well-founded fear of persecution, is unable or unwilling to return to that country: s.5H(1)(b).

9. Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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.  

10. 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

11. In accordance with Ministerial Direction No 84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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

    The issues

12. The key issue in this case is whether, on accepted evidence, the applicant is entitled to Australia’s protection as a refugee or, if not, on complementary protection grounds.

13. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Claims

14. [Ms A], who comes from Shanxi province, claims to be a member of the Church of Almighty God, also known as Eastern Lightning, which is banned in China as a xie jiao, or “heterodox teaching,” or “illegal cult” or “evil cult.” A discussion of this church and its teachings appears below. I note that believers purport to place a lot of trust in providence.

15. [Ms A] claims she lived in Datong City in Shanxi with her parents from birth until 2014. She claimed her father is employed in [an] industry. The delegate appears to have taken this to mean that [Ms A]’s father is [an occupation], but her evidence to me suggests that he works or worked at a more skilled level in technical operations.

16. [Ms A] claims to have joined the church in 2014 at the age of [age], four years after her mother joined, two years after her elder sister joined and one year before her younger sister did so. She claims she was inspired by her mother to pray for guidance so that she could succeed in her university [exams], after having previously failed in 2012 and 2013. She claims she took an interest in the church in June 2014 and joined it in August 2014. The delegate apparently interpreted this as having incongruously “waited so long” before joining the church; I attach no significance to the pace at which [Ms A] and her sisters purportedly followed their mother.

17. [Ms A] claims she passed and proceeded to study [at] a university in Changzhe city in the same province. She claims she studied there for one year starting in September 2014. In September 2015, she discontinued her studies. She told the delegate that she accepted this as God’s plan, and explained to me that she came to a point where she felt she had to choose between God and university. The delegate apparently interpreted [Ms A]’s actions in discontinuing her studies as an act of choosing God before study; he found that her doing so was implausible. I do not think that what [Ms A] was saying was as simple as this; and in any event, it is not inherently implausible. [Ms A] told me she started listening to Eastern Lightning talks through earplugs during [the] lectures and became fearful when one of the earplugs came out of her ear potentially allowing others to hear what she was being said. There is insufficient evidence before me to suggest that anyone identified the recording as an Eastern Lightning sermon, but that is a separate matter. She also said she was missing other activities with students and was questioned by her faculty abut why she was sometimes absent. She claims this made her fearful of being caught. In any event, she indicated her academic progress was poor. Essentially she claims she was distracted, and now states that all this would have been in God’s plan. She told me she feared she would eventually do something that would get her caught. In any event, [Ms A] was not discovered to be following Almighty God at university but dropped out all the same.

18. [Ms A]’s claims to protection centre around the alleged arrest of two of her direct church leaders January 2016 in Jincheng city, whence she had moved from Changzhe after leaving university. She claims that upon the arrest of the two leaders, she and a number of other church members moved quickly to Chengzhe where she changed addresses about three times over a period of two and a half months between January and early April 2016. She gave me details of these moves and how her accommodation was paid and, on their own, her claims about these arrangements and how they were afforded on arguably slender means are, on balance, consistent and plausible.

19. [Ms A] claims that up to the time of the arrests of her two leaders, she was a team leader of five young church members. She claims this role was a reason why she became particularly fearful for her own safety after the arrests. Looked at in detail, however, her position in the church hierarchy seems objectively to have been quite low-level.

20. [Ms A] claims she returned to her family home in March 2016 to apply for a passport so that she could get out of China lest she be arrested. Her passport was issued without potentially relevant interruption or delay and she was able to use it to depart China legally. I note that she tried in short order to obtain a visa for [Country 1], apparently unsuccessfully and then for Australia, with success. She acknowledges that the method by which she obtained her tourist visa from Australian authorities was by deception.

21. [Ms A] claimed to me that she and another church member named [Mr B] posed as a married couple, complete with forged marriage certificate and falsified hukou,[1] with a structured itinerary provided through a travel broker (who she says was linked to her church). Both were issued with visitor visas. [Mr B], I note, also lodged a PV application and, I further note, was granted a PV at the primary stage, i.e., by a delegate of the Minister,  whereas [Ms A] was not. She said they continued to study/worship together in Australia, although she said the church members here generally gathered online.

    [1] Household registration book.

22. I asked [Ms A] how she was able to afford to travel to Australia. She said her total individual costs were RMB25,000 or around AUD5,500. She said that RMB10,000 went towards the documents fabricated on her behalf. That would leave around 60% of her total outlay which would leave her with around AUD3,300 for airfare and visa costs. I asked [Ms A] how she was able to raise the RMB25,000. Whereas she had evidently told the delegate that this was not such a large amount of money in China, she agreed when I put to her that it was between a quarter and a third of an annual regional income in that country. [Ms A] said her parents and sister gave her the money, which came mainly from savings out of her father’s salary as a [occupation] and some savings from her sister who operated a [shop]. She told me she could not remember what portion of the RMB25,000 was taken in agent’s fees but she indicated that it was part of the RMB10,000.

23. The delegate found on the basis of questions answered at interview in 2016 that [Ms A]’s knowledge of Eastern Lightning doctrine was only rudimentary, considering that he regarded her as having claimed she was a leader in the church. He cited a number of facts that he considered it incongruous for her not to know at that time. However, the delegate based his conclusion on a particular reading of [Ms A]’s claims about having led a group of five local followers. [Ms A] herself did not evidently claim that this was a high-level role, and other evidence she gave me of local numbers she encountered indicates that that it was not, and hence it may be misleading to infer that she claimed to be a church leader.

24. The delegate made a transcript of the PV interview and, on a plain reading of its contents, I am of the view that [Ms A]’s knowledge of church teaching at the time of the interview, which would have been within about four months of her arrival in Australia, was more extensive and supple than the reporting in the primary decision captures. It is, of course,  open to me to consider whether [Ms A] swatted disingenuously for the purposes of trying to “pass” the PV interview; this appears to be the conclusion drawn by the delegate. Taking account of the information in the transcript, however, I find it hard to conclude that [Ms A]’s knowledge could only have been based on information gathered in the short time since she arrived in Australia. Meanwhile, I give little weight to what the delegate found she did not know at that time: that she was not able to provide two other less-used names for the church, being names that had evidently come to light in the course of the delegate’s research, is in my view of little meaningful consequence.

25. [Ms A]’s knowledge of church dogma is evidently much more comprehensive now, but I give little weight to that, given the time he has been here, compared with what she was able to demonstrate at her PV interview in 2016, and I give more weight to the latter than the delegate appeared to give.

26. I asked [Ms A] about evangelism, given its evidently central place in Church of Almighty God practice. I asked because evidence she evidently gave the delegate struck me as odd. At the PV interview, she reportedly said that she did not evangelise in China “Because when I believe in that at the time God’s task was not to evangelise in China.” (I presume from this she meant God’s task given to her.) I note the delegate relied on an excerpt from this statement, one in which context and distance were excised, and proceeded to give [Ms A]’s evidence negative weight. In any event, [Ms A] explained that her work with the group of five involved her writing short articles for them to read and consider. She more or less described this as low-key evangelism.

27. [Ms A] has submitted a letter from an address in [Country 1]. It purports to be from “the Leader of the Church of Almighty God in North America.” It is dated [September] 2016. The letter purports to be aware that [Ms A], who it identifies by her birth date and passport number, was at the time preaching the Church’s gospel in Australia. It also purports that [Ms A] “is a devout Christian.”

28. This letter gives no clue as to how its author came into possession of [Ms A]’s passport number. It also gives no clue as to how its author, far off in [Country 1], was contacted in the matter or how he or she has been able to assess the genuineness of [Ms A]’s faith.

29. I asked [Ms A] if she had tried to get her church in Australia to substantiate the claims about the two leaders arrested in China. She was vague in reply: she said she did not know; she said she is just a “plain member.”

30. None of [Ms A]’s evidence appeared to suggest that she faces a real chance of being persecuted in China due to her having affiliated with the Church of Almighty God in Australia. Her case pivots on the question of what will happen if she affiliates with that church in China.

31. I asked [Ms A] when she was last in contact with her parents. She said she had not been in contact with them since the time she returned to the family home briefly in March 2016 to arrange her passport. She said she tried to contact them by letter before she left China, asking a church fellow to send or deliver it, but had no knowledge as to whether it reached them. She said she avoided trying to contact her parents in case the issue that made her flee China had led authorities to her. She said it better ensured her parents’ safety that they did not receive calls or messages from her whilst she was abroad. She drew the Tribunal’s attention to the increased use of surveillance of citizens in China in her explanation of the choice she had made to avoid contacting her parents. I put to [Ms A] that she physically went to her parents’ home in March 2016 at a time when she feared she might have been identified and watched by the police. All she had to say on this matter was that she had had no choice at the time but to go to her parents in March 2016 so that she could organise her way out of China.

32. I had some difficulty with [Ms A]’s evidence on this point, as there seemed to me to be other ways she might tried so as to be able to communicate with her parents, says, through other individuals, or for her to ascertain at least whether they were still free from potentially harm. I asked [Ms A] if she had ever tried to ask anyone else if her parents were safe and she said she tried all the time, and when I asked for detail, she said she tried to telephone them; however, when I asked for more detail, she said she had dared not go through with actually calling them. I asked if there was anyone else in the word who could call her parents and she said there was “no-one else.”

    Independent country information

33. I have had regard to the following information provided by DFAT in its DFAT Country Information Report: China, of 22 December 2021:

    Church of Almighty God (COAG) or Eastern Lightning

    3.57      The Church of Almighty God (also known as Eastern Lightning) was banned as a xie jiao in November 1995. COAG operates in secret (both to avoid detection and as a general matter of practice) and so little is known about the Church. It receives academic attention from a small number of foreign researchers, most of whom take a sympathetic view of the religion. COAG is also sometimes reported about in the mainstream Western media with articles that quote Christian groups as critical of the Church.

    3.58      COAG adherents may believe Jesus returned to earth as ‘Almighty God,’ a woman in the 20th Century. ‘Almighty God’s’ sayings are collected in the book ‘The Word Appears in the Flesh’. COAG members believe they are in a constant mortal struggle against the ‘Great Red Dragon’ (a possible reference to the CCP), and that membership of the group will bring salvation from an impending apocalypse. ‘Almighty God’ came to inaugurate the third and final age of humanity, ‘the Age of Kingdom’, which follows ‘the Age of Law’ (the Old Testament) and ‘the Age of Grace’ (of Jesus).

    3.59      Little is known about the identity of the central female figure, which may be because of secrecy. Some non-COAG sources claim that she (as an historical figure) never existed at all and the Church denies claims that she is called ‘Yang’ or ‘Deng’ or that she comes from Henan, which is reported in some sources. DFAT understands from sources that different beliefs about her identity may exist amongst Church followers and DFAT is aware of some members who deny that any such figure exists at all. Others may pay little attention to the female Christ figure without denying her existence. Similarly, COAG texts might refer to ‘Almighty God’ using male pronouns. Some adherents believe that a woman came to earth as a new incarnation of Christ and the ‘ordinariness’ of this woman may appeal to some rural female adherents.

    3.60      There is no formal liturgy or sacraments in the COAG movement but weekly study meetings do occur. The leadership can change quickly. Members of the Church may deny, or not understand, the hierarchy and leadership of the Church, but DFAT understands that there is a hierarchy. Due to the secrecy that surrounds the Church, a common understanding may not be reached by members and questions about practice could genuinely be answered differently by different adherents. COAG members generally do read The Word Made Flesh, the central religious text of the group. DFAT is not aware of any central registry of members and understands that there are no authoritative estimates of the number of members.

    3.61      COAG is controversial. Multiple claims of illegal activity such as homicides and kidnappings have been reported in the media. Members are reportedly forced to break away from families or sell their possessions to give the proceeds to the Church. These claims are disputed by COAG and some members. Other small groups, especially small Protestant groups, are strongly against COAG and many sources that describe the Church come from that origin. Those sources may not be reliable. DFAT understands that some Protestants cooperate with authorities to help them identify COAG activity and arrest members.

    3.62      Separate police action against members may be related to membership of the organisation or alleged criminal activity connected to it. According to research conducted by Dui Hua, an American human rights research foundation, court cases involving COAG ‘rarely involve violence’, suggesting that most cases relate to membership of the group rather than alleged violent crime. Dui Hua reported that the majority of the cases coincided with a prophesied apocalypse in 2012 and an incident in which a person was murdered in a McDonald’s restaurant in Shandong in 2014 (in which the Church denies involvement and DFAT understands from sources occurred at the hands of a schismatic group, not members of COAG itself).

    3.63      COAG is not well understood but it is clearly illegal in China, and reports of widespread arrests are credible. It is illegal for them to proselytise; those who attempt to proselytise, as well as leaders in the Church, are subject to greater scrutiny by authorities. Inability to practise openly and alleged (but disputed) isolation of members from family and society could reduce exposure to societal discrimination. DFAT is unable to verify whether a former member or a person imprisoned for membership would be placed on an exit control list. DFAT assesses that members face a moderate risk of societal discrimination due to high-profile anti-xie jiao campaigns that are critical of the group.

    Findings in relation to s.36(2)(a) of the Act

1. In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[2] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[3]

   [2] MIMA v Rajalingam (1999) 93 FCR 220 .

   [3] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

2. The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[4] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[5]

   [4] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70

   [5] Sun v MIBP [2016] FCAFC 52 at [69].

3. In this matter, [Ms A]’s claims are squarely about being persecuted for reasons of “religion,” a criterion in s.5J(1)(a) of the Act; I accept that the Church of Almighty God is a religious movement and that “religion” is the essential and significant factor in the harm [Ms A] claims to fear.

4. I draw no negative inferences from [Ms A]’s method of obtaining a visitor visa in order to come to Australia. In fact I give some small cumulative weight to what can reasonably be taken to be her sudden vigour in trying to obtain a passport, and then a visa first for [Country 1] and then for Australia all within a short period in 2016. A cynical view might be that she was a university drop-out who may have felt she needed to go abroad to earn any meaningful income, and this view is not necessarily undermined by her apparently having worked only part-time in fairly low-paid situations here in Australia. However, her actions in early 2016 are also not inconsistent with a state of panic.

5. [Ms A]’s claims to be a devout and active member of the Church of Almighty God are discussed in the letter from “the Leader of the Church of Almighty God in North America” purportedly located in [a location]. This letter provides no indication at all as to how its author has been able to make an independent assessment of [Ms A]’s background, activities or experiences. How its author obtained details of [Ms A]’s birthdate and passport number is not explained. There is no ostensible difference between this letter and something made to order, on request. The seal on the letter implies that its contents are authentic and authoritative, but its contents are in fact thin and few. The author’s name is not even provided. I give no weight to this letter and observe in passing that it might have been more helpful, say, were it to provide detailed and substantiated information about the alleged arrests of two of its leaders in China in January 2016.

6. On the evidence overall, I do not believe that [Ms A] has been unable to ascertain the circumstances of her parents. I found her evidence about her action and inaction relating to this issue quite unimpressive. I have given some negative weight to this concern in my assessment of [Ms A]’s overall credibility, and for want of evidence to the contrary, I find that [Ms A]’s parents remain unharmed.

7. However, there is still the matter of [Ms A]’s evidence regarding faith, religious knowledge and church teaching as given to the delegate within weeks of her arrival in Australia, supported by her somewhat detailed evidence to the Tribunal about her experiences in China, both at university and when the [church] group fled to Chengzhe. In both instances, [Ms A]’s evidence was, in my view, quite impressive: she was able to return to aspects of the evidence with which I had some concerns and explain them credibly and consistently, such that she clarified those concerns.

8. In the course of making my findings in this matter, I have made allowances for what presented in both hearings as nervous idiosyncrasies, both in the form of tics and a tendency to race seemingly relentlessly through sequential facts. No professional diagnosis of potentially significant behavioural traits has been presented in this case, but over the course of two hearings, common sense has led me to make allowances in respect of [Ms A]’s individual and, again, idiosyncratic capacity to respond to questions on their respective points.  

9. All this said, it has been somewhat difficult to accept that [Ms A] embraced a banned religion in the course of trying to concentrate on passing an exam. Conversion from something like agnosticism or atheism to a state of religious believing, even in circumstances where the convert is much less likely to be arrested and jailed, or even murdered, for having joined a xie jiao, is reasonably expected to involve more than praying to a god in which one does not yet believe for an earthly outcome and then believing in that god if the outcome is favourable. On the other hand, [Ms A] essentially claims to have discovered calm concentration in the course of praying to her mother’s God. She does not claim to have made the journey unaided. Also, in my opinion, she displayed quite a detailed and supple understanding of Church teachings in her evidence to the delegate, such that I am unable to say with confidence that she only acquired that knowledge after arriving in Australia. Notwithstanding some weaknesses in her evidence, I am prepared to give [Ms A] the benefit of the doubt and accept that she was already following the Church of Almighty God in China, before she came to Australia on her visitor visa.

10. Having concluded that [Ms A] may be a genuine believer in the Church of Almighty God, and may well have been one back in China before she came here, I must now assess whether she faces consequentially a real chance of being persecuted. On the way to making findings on this question, I must have regard, in the interests of completeness, to s.5J(6) of the Act, but having found that [Ms A] is a genuine member of the Church of Almighty God, I find that her conduct in Australia is not to be disregarded. However, there is insufficient evidence in this matter for me to found a conclusion that [Ms A] faces a real chance of being persecuted for reasons of her church activities in Australia.

11. I nevertheless find that [Ms A] will have to hide her church activities to avoid being persecuted in China and that expecting her to do so would be to fall foul of s.5J(3)(c)(i) of the Act. Even, if [Ms A] does modify her behaviour to avoid being persecuted in China, I cannot rule out that the chance of her being discovered and persecuted is greater than remote; therefore, the chance of her being persecuted for following the Church of Almighty God is real.

12. I have shown, in this case, where I differ from the delegate in regard to similar information, which is not to say that I have found [Ms A] a thoroughly reliable or helpful witness throughout this entire process. However, on the evidence overall, and giving her the benefit of the doubt where I have given it, I am satisfied that [Ms A] faces a real chance of being persecuted in China in the reasonably foreseeable future for reasons of “religion.”

13. For the reasons given above, I am satisfied that [Ms A] is a person in respect of whom Australia has protection obligations under s 36(2)(a).

    S.36(3) of the Act

14. I am satisfied on the evidence before me that there are no steps [Ms A] could take to avail herself of the protection of a third country. I am accordingly satisfied that she is not caught by s.36(3) of the Act.

    decision

15. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

    Luke Hardy
    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.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    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 the 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.

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    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (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.

    …