1708055 (Refugee)

1708055 (Refugee) [2022] AATA 4150 (7 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Harry Huang (MARN: 9579277)
CASE NUMBER:  1708055
COUNTRY OF REFERENCE:                   China
MEMBER:Luke Hardy
DATE:7 October 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 07 October 2022 at 2:31pm
CATCHWORDS
REFUGEE – protection visa – China – religion – conversion to Catholicism in China – delay in lodging a protection visa application – autistic son – not satisfied that the claimed trigger for PV application is genuine and factual – fear of persecution is not well founded – credibility concerns – Ministerial Intervention referral – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65,417, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants protection visas (PVs) under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, a family, are citizens of China. [Ms A], the wife, arrived in Australia on a student visa on [date] March 2008. Her visa was valid until 15 March 2010. She overstayed the validity of her visa and became an unlawful non-citizen for several years. Her husband [Mr B] arrived in Australia on [date] March 2007, also on a student visa, his expiring on 15 March 2009. He too became an unlawful non-citizen for several years before he and [Ms A] lodged their PV application on 5 May 2016. The third applicant is [Mr B] and [Ms A]’s son who was born in Australia in [year] and who was later joined to the application. All three applicants applied or were included as applicants in their own right; however, neither the husband [Mr B] nor the son have individual claims, and appear to rely on the outcome of [Ms A]’s application in their own cases.
The delegate refused to grant the visas on 30 March 2017. The applicants then sought merits review by this Tribunal and the matter was constituted to me. I find the review application valid.
[Ms A], alone, appeared before the Tribunal on 30 September 2022 to give evidence and present arguments. She was accompanied by her migration agent. The Tribunal hearing was facilitated by interpreter in the Mandarin-English medium.
Criteria for a protection visa
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the "refugee" criterion, or on other "complementary protection" grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, 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).
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.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) ("the complementary protection criterion"). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No 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
The key issue in this case is whether, on accepted evidence, any of the applicants is entitled to Australia’s protection as a refugee or, if not, on complementary protection grounds.
For the following reasons, I have concluded that the decision under review should be affirmed.
Claims to the Department of Home Affairs (the Department)
The claims in this case relate to the s.5J(1)(a) “religion” criterion.
[Ms A] claimed in her PV application that she was born in [year] and given up to be adopted by farmers in Fujian province. She claimed that in 2006 she had “a peculiar disease.” She claimed her adoptive mother took her to doctors who proved unable to do anything for her. She claimed that at this time she was preparing her entrance examination for senior high school and was stressed and worried. She claimed her adoptive mother found a person called [Sr C], a nun in a Roman Catholic “underground” church through a friend. She claimed that [Sr C] came to her home with a priest of the underground church and that with their help, she miraculously recovered. She claimed she passed her entrance examination for senior high school and was enrolled.
[Ms A] claimed she had a summer school holiday for two months between July and August 2006. She claimed that the underground church normally held Catechism classes during that period. She claimed that [Sr C] arranged for her to attend Catechism classes together with her mother. She claimed she and her mother were baptised by a priest in the underground church on[date] August 2006.
[Ms A] claimed that from September 2006 until she left China in March 2008, she studied at [School 1] and got to know [Ms D], another Catholic, who studied together with her at the school. She claimed they both attended a church youth group led by [Sr C]. She claimed there were around 15 members in the group and that it gathered every Saturday evening. She claimed that she and [Ms D] also attended mass with the underground church every Sunday evening.
[Ms A] claimed her adoptive parents expected her to receive a better education in Australia. She claimed that that the money for her study in Australia was borrowed from their relatives and friends. She claimed that shortly after she arrived in Australia she found that it expensive to study and live here. She claimed that cost forced her to stop studying. She claimed that in December 2008, her adoptive father got into trouble with the Public Security Bureau (PSB/police), because he was actively involved in the protests against a real estate development company which failed to pay its workers. She claimed her adoptive father was accused of seriously harming social order and was arrested and detained at Fuqing detention centre for three months. She claimed her adoptive father was eventually released, although her family had to spend money to bribe the police and also to arrange for her adoptive father, who had been mistreated in detention, to have medical treatment. She claimed this put her family more into debt. She claimed she needed to remain in Australia in order to make money and assist her family in repaying its debts.
[Ms A] claimed she attended a Roman Catholic Church from the time she arrived in Australia. She claimed that after she arrived in Australia, she also stayed in contact with [Ms D] via the Internet and telephone. She claimed [Ms D] went on to university in Quanzhou and started her own church activities there. She claimed [Ms D] graduated as an English teacher and later set up an English teaching school [in] Fujian. She claimed the school was supported by the underground Catholic church . She claimed she herself sent money and Catholic church pamphlets to [Ms D] to support the school and provide reading English material.
[Ms A] claimed she moved to Sydney in February 2015 and began attending [Church 1] in [Suburb 1]. She claimed that [Ms D], meanwhile, was forced by the PSB in February 2016 to close her private English coaching school, because the police discovered that she and [Sr C] were disseminating “illegal" foreign church materials at the school. She claimed that [Ms D] and [Sr C] were both arrested and detained. She claimed that after [Ms D] and [Sr C] were detained, the police found that she, [Ms A], had provided of the "illegal" foreign church materials. She claimed that she had since become “blacklisted” by the PSB. She claimed that [Ms D] and [Sr C] were, and remained, jailed.
She claimed she could not return to China because she would not be free to practice as a Catholic in an underground church and because she was blacklisted over her activities in sending religious material to China from abroad. She claimed that her adoptive parents, “step brothers”, and even the families of her biological parents have been implicated and subjected to investigation by the PSB. She claimed that in the event of return to China she will be arrested, detained, and investigated by the PSB, and then jailed and mistreated in detention by the PRC authorities.
[Ms A] submitted an NSW marriage certificate registering her marriage to [Mr B] in a church in [Suburb 2] NSW in May 2016. Their son was born [later] and his birth certificate was also submitted.
[Ms A] also submitted letters of support from the parish priest at [Church 1] in [Suburb 1] who claims she started attending his church in January 2015. She also submitted letters from two parishioners of [Church 1] and from the priest who married her to [Mr B] in [Suburb 2]. One of the two letters from the [Church 1]’s parishioners indicate that, as at October 2016, she had been attending [Church 1]’s for two years. This and the priest’s recollection both appear somewhat inaccurate, considering that [Ms A] did not move to Sydney until February 2016. The second [Church 1]’s parishioner recalls [Ms A] having come to the church “early” in 2015.
[Ms A] attended a PV interview with the delegate on 22 November 2016. For the purposes of this review, she submitted a copy of the delegate’s decision which includes a summary of her oral testimony and which cites relevant issues that were raised for her comment. The decision record put [Ms A] on notice that credibility was a key factor in the delegate’s decision to refuse her PV application. However, the delegate’s credibility findings are not detailed and tend to rely on a perceived absence of evidence rather than on explicit factual contradictions.
Independent country information
I have had regard to the following material[1] from DFAT:
[1] DFAT Country Information Report: China, 22 December 2021
3.24      Under Xi Jinping, China has introduced a renewed campaign to ‘sinicise’ religion. This work, undertaken through the Party’s United Front Work Department and carried out through registered, state sanctioned religious organisations, aims to ensure that a ‘correct’ version of religion is practised by adherents in China, with principles like patriotism, party leadership, and loyalty to the Party emphasised, and doctrine deemed inconsistent with Party supremacy de-emphasised or forbidden. This may involve changing elements of worship such as hymns, clerical attire or architecture to better align with Chinese cultural, aesthetic or political traditions. New religious regulations and implementation organisations aim to enhance government control over the appointment of religious leadership, increase transparency over sources of funding, limit religious practice to venues authorised by the government, reduce links with foreign religious organisations, and give the Party greater say over religious doctrine taught in China. Religious groups that refuse to bring themselves under the authority of state-sanctioned religious organisations face being shut down. Some religious leaders have faced charges like subversion of state power. The 2018 Regulations on Religious Affairs contain broadly worded prohibitions against the use of religion to ‘split the country’, ‘undermine ethnic unity’ or ‘engage in terrorist activities’. Although centrally organised, the situation for religions varies from place to place and is influenced by the actions and motivations of local authorities.
3.25      Professor Fenggang Yang of Purdue University describes religious groups as operating in a ‘red’, ‘grey’ or ‘black’ market. The red market groups are the officially sanctioned churches, such as the ‘patriotic associations’, the name used for officially sanctioned organisations that represent the five recognised religions. Grey markets include unofficial but tolerated (to a degree) religious gatherings. Black markets include underground movements and xie jiao. Some home congregations were originally in the black market but moved to the grey market with increased tolerance over decades. But the recent crackdown to ‘sinicise’ religions is reversing this trend. Those groups that are allowed to exist are subject to close monitoring. CCTV cameras may be installed in religious buildings to monitor congregations and virtual platforms used by religious groups to meet may be monitored or censored.
3.26      Regulations prohibiting proselytising are generally enforced across China and religious education for those under 18 years is not permitted, but according to the 2020 US Department of State International Religious Freedom report on China enforcement of this rule varies from place to place. In recent years, the number of foreign religious workers and foreign NGOs working in areas with a rights and religious focus appears to have decreased significantly.
3.27      Overall, an individual’s ability to practise religion depends on whether the individual worships in registered or unregistered institutions, whether they practise openly or privately, and whether an individual’s religious expression or the religion itself is perceived by the CCP to be closely tied to other ethnic, political and security issues. Adherents of Buddhism (except Tibetan Buddhism), Confucianism, Daoism, folk religions, and syncretic combinations of these that do not have influences from ‘foreign religions’ and that are not associated with other foreign influences, are unlikely to experience significant restrictions.
Christians
3.28      Christianity is growing rapidly in China. Estimates of the number of Christians vary and official figures only count those Christians worshipping at officially registered churches. The Chinese Government reports there are 38 million Christians. The 2020 US Department of State International Religious Freedom Report estimates there are 70 million Christians throughout China; higher estimates also exist.
3.29      Authorities have regulated Christianity to make it more ‘China-orientated’. Bibles are increasingly difficult to obtain and Bible references are censored online. Plans for authorities to ‘re-translate’ the Bible or issue state commentary have been reported by media, but have not been implemented at the time of writing. Sacred images in churches, such as those of the Virgin Mary, have been replaced with portraits of Xi Jinping in some churches.
3.30      Consistent with Yang’s theory of the three markets, many ‘grey-market’ churches have operated relatively openly for many years. Since about 2015, and to some degree earlier, the government engaged in a campaign to remove visible symbols of Christianity from church buildings. Both Catholic and Protestant churches have been affected. Christian media reports the removal of crosses on buildings consistently between 2015 and 2021, and across a wide geographic spread of provinces.
3.31      In a 2018 report, the Pew Research Centre ranked social hostility to people of different religions as low in mainland China, much lower than in Australia. Similarly low scores on hostility are found in other parts of East Asia. DFAT does not rule out the possibility of isolated societal discrimination. For example, a Christian may miss out on job opportunities based on fear that they will proselytise to clients and attract adverse government attention, but DFAT is not aware of incidents ...
3.33      … DFAT is aware of reports of authorities pressuring house churches by cutting off electricity, forcing landlords to evict members, or using procedural grounds to shut house churches. Larger churches are most likely to receive government attention; the larger the congregation, the greater the chance of such attention. This in practice means that small groups may be able to meet in private for unauthorised religious discussions ...
Catholics
3.36      The Chinese Catholic Patriotic Association (CCPA) represents the official Chinese Catholic Church. Globally, matters of Catholic doctrine, ecclesiastical law and the appointment of leaders (bishops) are usually controlled by the Catholic hierarchy, headquartered in the Vatican. The CCPA does not recognise the authority of the Vatican. In the past, the Vatican has had some input into the selection of bishops but a number of Vatican-approved bishops also operate ‘underground’, separate from the CCPA. For some Chinese Catholics, allegiance to the Vatican Catholic Church hierarchy is an important part of faith because of their belief in a succession of authority that can be traced back to St Peter, a contemporary of Jesus. For those Catholics, Party-appointed priests and bishops are unable to validly confer sacraments that are central to their beliefs. On this basis they refuse to participate in religious activities associated with the CCPA.
3.37      In 2018, the Vatican and Beijing signed an agreement that would regularise the status of some Chinese-appointed bishops so they would be viewed as valid by the Vatican. In return, those ‘underground’ Catholic churches would join the CCPA. Most of the details of the deal are not known. The deal was extended in October 2020 for a further two years, allowing for more bishops to be recognised.
3.38      In spite of the deal, reports of a crackdown on Catholics as part of a wider campaign to sinicise religion continue. Underground priests who were demoted from the position of bishop as part of the deal are pressured to join the CCPA, according to various media reports. Some media reports say that underground priests had experienced torture and disappearance if they resisted. Fujian, a traditional stronghold for Catholicism and underground Catholicism in particular, has seen particular efforts to convert underground bishops.
3.39      The numbers of CCPA versus underground Catholics are not clear. Cardinal Zen, formerly Archbishop of Hong Kong and a vocal critic of the Chinese Government, has claimed in media reports the ‘underground community’ has ‘practically disappeared’ because of pressure on underground bishops. DFAT is unable to verify this claim.
3.40      DFAT assesses that some underground Catholics loyal to the Vatican are only able to practise their religion discreetly and some may face severe restrictions. Most Catholics will follow their local leadership, whether it is Party or Vatican controlled, and so leaders are more likely than congregants to face government attention, but the situation differs from place to place and community to community and many Catholics live in rural areas where local conditions may prevail. DFAT assesses Catholics, both underground and CCPA members, are subject to low levels of societal discrimination.

I note the following:
… the five provinces with the largest estimated Christian populations in 2020 are Henan, Zhejiang, Jiangsu, Anhui, and Guangdong. Three provinces with the estimated largest numbers of Catholics are Zhejiang, Hebei, and Fujian.[2]
[2] “Christian population statistics table for China,” Asia Harvest, n.d.,
I also note that
It is estimated that slightly more Catholics in Fujian attend unofficial churches rather than official churches.[3]
[3] Ibid.
I have had regard to the following material in DFAT’s Thematic Report on Fujian Province China, noting that it was published six years ago in December 2016:
3.5     Generally speaking, individuals in Fujian can practice religion within state-sanctioned boundaries, as long as such practices do not challenge the interests or authority of the Chinese Communist Party. In practice, the Chinese Communist Party obstructs religious practice at an organisational level, and is largely indifferent to religious practice at the individual level, with the exception of Party members, who are not permitted to follow any officially recognised or other religion. Religious adherents can be subject to a range of restrictions that are inconsistent or lack transparency. An individual’s ability to practice religion can be influenced by whether the individual exercises [his or her] faith in registered or unregistered institutions, whether they practice openly or privately, and whether or not an individual’s religious expression is perceived by the Chinese Communist Party to be closely tied to other ethnic, political and security issues ...
3.10    Unregistered churches (otherwise referred to as underground or house churches) are predominantly independent Protestant and Catholic congregations which refuse to acknowledge or associate with the officially sanctioned TSPM and CPA. By definition, unregistered churches are clearly subject to less control by the state than TSPM- and CPA-linked churches but also operate at greater risk given their unregistered status. Some in-country contacts questioned the validity of the ‘registered’ and ‘unregistered’ dichotomy, pointing out that members of a congregation will often move between the two.
3.11     Asia Harvest estimates that in 2011 there were 1.57 million worshippers of Protestant-linked unregistered churches and one million worshippers of Catholic-linked unregistered churches in Fujian. Accurate data on the number of unregistered churches in Fujian is unavailable, however in-country contacts report that they are able to be identified and accessed, particularly by Protestants.
3.12     Given that legislative protections for freedom of religious belief extend only to government-affiliated organisations (such as the TSPM and the CPA), the operations of unregistered churches depend on the attitude of local authorities. Their treatment varies greatly across China, and within Fujian. Generally speaking, in-country contacts suggest that local authorities in Fujian tolerate the operations of unregistered churches who operate discreetly, including by limiting the number of worshippers and meeting in inconspicuous locations. DFAT understands that congregations of up to 50 people can meet weekly in private houses without being closed down / repressed by local authorities.
3.13     Broadly speaking, DFAT understands that should an unregistered church or an individual perceived to be associated with an unregistered church engage in active and public proselytising, or are perceived to openly criticise the Chinese Community Party or the framework that regulates religious practice, the church or individual would likely be exposed to harassment, raids and destruction of property, pressure to join or report to TSPM- and CPA-linked churches and occasional violence and criminal sanction. In practice, this is more likely to affect leaders of unregistered churches, rather than individual worshippers. Leaders who amass a large (undefined) and unregulated congregation or personal following can also attract negative attention from the authorities.
3.14     Representative examples of the treatment of unregistered churches in Fujian are difficult to obtain. China Aid documented the destruction of an unregistered church (the Yulin Christian Church) in Fujian in January 2016 (although the events leading up to this incident are unknown). DFAT is unable to comment on the frequency of this occurring in Fujian, but open-source reporting and credible in-country contacts suggest that it has not been a common occurrence.
3.15     Charismatic leaders perceived to be associated with an unregistered church that come to the overt attention of local authorities are sometimes accused of committing offences unrelated to religious practice, such as fraud or corruption.
Evidence to the Tribunal
I asked [Ms A] to describe the “peculiar disease” that her had been unable to treat or cure. She said it was insomnia caused by anxiety about her then-impending senior high school entrance exam. She said she told the doctor she was having difficulty sleeping because of this anxiety. The said the doctor accepted and diagnosed that this was the cause and prescribed her sleeping tablets that, she said, did not work. She said her mother, who was not then a Christian, but who used to burn incense in the tradition of Buddhists, got in touch with [Sr C] through a work colleague. She said that [Sr C] visited her at home and “exorcised” her by sprinkling “Holy Water” on her. She said she soon recovered and was able to sleep. She said she and her mother were baptised in [Sr C]’s underground church four months later.
I invited [Ms A] to give me insights into her conversion over those four months in 2006 from being a person without any religion or interior spiritual life to being a devout and stoic Catholic. [Ms A] did not provide any details about any subjective process of inception of religious faith; she just said that God decided. I asked her if she ever exercised any free will in the process and she said she did not understand me. I asked her if she had exercised any personal choice and she said that God decided she should be Catholic. She was not helpful in explaining, or even trying to explain, how she came to submit subjectively to the will of a divine entity in which she had hitherto not believed, except to suggest that the “Holy Water” had worked some kind of magic. She said that God had made her ill. I asked her if she meant that God forced her to choose Christianity. In reply, she said God selected her. I asked [Ms A] how there could be sin if people cannot choose good over evil, as she seemed to be suggesting; she replied, “God is All Powerful.”
I asked [Ms A] about the religious materials she claimed to have sent back to [Ms D] in China. She showed me what she called examples of the kind of material she used to send including some copies of the [Church 1]’s parish monthly magazine. She said she also used to send scripture sheets. I asked [Ms A] to tell me how many times she sent such material to [Ms D] in China and she said she did not remember exactly. She then said she sent them every two months over a period between 2014 and 2016.
[Ms A] said she used to hide these materials in shipments of milk powder, the latter reportedly fetching a high price in China due to shortages there.[4] She said that she kept sending the material until learning in February 2016 that [Ms D] and [Sr C] had recently been arrested. She said the police found out that she had been the sender of the illegal religious material. I asked her how the police found out and she said that [Ms D] and [Sr C] “must have told them.” She later gave different evidence on this point, saying that the police told her parents that [Ms D] and [Sr C] had told them explicitly that she had been the sender. When I drew her attention to the apparent discrepancy between guessing and knowing how the police found out, she said her first version of events was the product of nervousness.
[4] “Can You Ship Milk Powder To China? Here’s What You Need To Know,” China Merchants Holdings (International) Co., Ltd., >
I note that Chinese authorities are reported to have introduced and maintained a close watch on the importation of milk powder, such as by checking the precise weights of amounts imported for the purpose of levying taxes.[5] A 2015 article from FedEx describes in detail the amount of scrutiny Chinese authorities have evidently set up to regulate the shipment of milk powder into China:
.. exporting milk to China is not child’s play. While you can ship baby formula to private persons in China, the quantity is limited to six cans (each can max 900 gram) for personal use. To do this, you must register as an exporter with the Chinese authorities. Other parties such as the manufacturer have to be registered and obtain approval from the Chinese government as well. In addition, approval by China Certification and Accreditation Administration (CNCA) is required for all other dairy products and is now mandatory for Chinese market access.[6]
[5] “Sending Milk Powder to China - The Do's and Don't’s [sic],” Seven Seas Worldwide, “Eight surprising customs rules to be aware of,” FedEx News, 2015,
It struck me as odd that milk powder imports, being potentially subject to very close scrutiny, would be used as cover for importation of illegal religious material.
I asked [Ms A] to explain why she did not apply for a PV until after [Ms D] and [Sr C] were caught and her name became connected to the smuggling of the religious materials. I asked because, back then, [Ms A] had no legal right to remain in Australia and could have been deported in short order at any time. In reply, [Ms A] said that at that time she had not wanted to use God as an excuse to stay in Australia. I asked her what she meant by that, since eventually she did indeed seek protection on religious grounds, but she digressed. I asked her why she did not apply for protection earlier than she did, say, out of fear that her smuggling activity was risky, and she said that she had been told by [Ms D] that everything was well set-up. I asked [Ms A] to explain how those religious materials managed not to be detected in multiple shipments of milk powder over two years and she said that [Ms D] had told her there was a particular customs officer somewhere who took care of everything for them.
Aware of China’s rigorous importation requirements governing the importation of milk powder, I asked [Ms A] if she could provide any documentary evidence of her involvement in the practice of sending illegal religious documents to China in milk powder shipments. In response, she said she could provide no evidence because, at the time she was sending the material, she did not expect that there would be any problems. This explanation seemed somewhat incongruous, in the claimed circumstances, given the risk that the smuggling process would have involved.
I asked for more detail about the English language school. [Ms A] said that most of the children at the school were underground Catholics, implying that some were not. She said that it turned out some of the parents of pupils at the school were the ones who told the police that the school was using foreign religious texts as tools for learning English, the implication being that they opposed the school pushing indoctrination material on their children under the guise of language instruction. [Ms A] said that those parents did not give permission to the school to use religious materials. I asked [Ms A], who seemed aware of what the school was doing, if she did not think it had been operating dishonestly. In reply, she seemed to avoid the point of the question, saying that most of the pupils were from Roman Catholic families. Then she said, “The parents reported. I don’t know.”
[Ms A] said she found out she had been placed on a police “blacklist” from her parents. She said her parents who were interrogated by the police in 2016. Interestingly, [Ms A] told me that, even after the arrest of [Ms D] and [Sr C] and the supposed exposure of the local underground Catholic church’s activities, her family’s local underground Catholic church had not been shut down. She said her parents both still attended services, listen to the gospel and say their rosaries regularly. I asked her how this could be so, in the claimed circumstances, and [Ms A] said that the church is “small scale” and has no fixed address. She said that Sunday mass rotates amongst the houses of respective church families. She confirmed that this was how things had been the whole 15 years since her family joined the church in 2006. I put to her that her evidence here seemed to confirm independent country information to the effect that conditions for underground churches in Fujian are more relaxed than in some other parts of China. In reply, she said that Fujian authorities are only relaxed in relation to the state-registered churches. Relevant to this response, I note from [Ms A]’s evidence that her local police had had considerable success in establishing the identities of individual members of her family’s underground church, at least by 2016, and yet the latter is evidently still operating essentially unchanged since the days when [Ms A] herself was still in China.
I put to [Ms A] that the claim about the sympathetic, co-opted customs official was a new claim, not hitherto provided in her evidence, and she said that this was correct. I asked her to explain how she knew this information to be true and she said she knew it because she trusted [Ms D].
I put to [Ms A] that had the smuggling of religious materials and its exposure never occurred, it appeared on the facts that she could return to China and continue to worship with the same local church along with everyone else who still does so. In reply, she said that she has no religious freedom in China and has to go to church in secret. I put to her that her family and others have continued to attend her church’s services on a weekly basis all these years, notwithstanding the local police having dealt with the church in the past, and that this seemed to suggest some confidence on their part. In reply, she said that she only knows that her parents’ church is an underground church.
I asked [Ms A] if she could explain why she did not attend the state-sanctioned Catholic church in China. In reply, she said that the state-sanctioned Catholic church in China does not follow Catholic doctrine. I put to her that the state-sanctioned Catholic church in China evidently preaches the same gospel and performs consecrations recognised by the Vatican, and she said that the state-sanctioned church is nevertheless managed by a state-appointed council. I put to [Ms A] that this did not prevent the church from performing its functions such as conducting mass and administering sacraments. In reply, [Ms A] said that Catholics in China are either loyal to the Pope or the State. She seemed to be implying that those who attend the state-sanctioned Catholic church in China are not, and cannot be, loyal to the Pope. Since it was not clear why she said that a person cannot bear relevant allegiances to church and state at the same time, I put to [Ms A] that the Pope himself has never said that the state-sanctioned Catholic church in China is heterodox or heretical, and she said that the government imposes Chinese characteristics upon that Church. She did not provide any insights into what she meant by this.
[Ms A] said that not all persons who attend the state-sanctioned Catholic church in China are even baptised. She did not provide any material to support this claim, and I asked her how such a fact would interfere with her own relationship with God in any event. In reply, she said, “I’m a real Catholic. I’ll still go to the real Catholic church.”
Ultimately, [Ms A] was unable to illustrate any dogmatic, liturgical, ritual or catechetical factors that would prevent her from living as a Catholic within the state-sanctioned Catholic church in China.
In any event, [Ms A] confirmed that she was never repressed during the years she spent as an underground Catholic in China. She said that when she came to Australia she did so because her mother wanted her to receive a better education. She thus indicated that it was someone else’s decision that she come here. I asked her if she initially intended to return to China once her education was completed, and again she implied it was not her choice to make. She said that her mother had not thought that far ahead and had suggested to her that they take one step at a time.
Throughout the whole of the Tribunal hearing, it was extremely difficult, notwithstanding manifold efforts, to ascertain from [Ms A] her own thoughts, insights, inclinations, intentions and motives: according to her evidence, practically every potentially relevant activity and event she described involved her being, as it were, the passive, acquiescent and unquestioning instrument of someone else’s project, be that person her mother, [Ms D] or God. This gave me concerns regarding the quality of [Ms A]’s evidence overall, but one strong impression that I did glean was that she did not have any subjective fear of being persecuted at the time she departed China for Australia, notwithstanding that she had purportedly belonged to an underground church for two years prior to leaving.
I asked [Ms A] for more information about her original student visa. She said that the plan was for her to obtain permanent residence as a skilled migrant. She said she could not complete her studies because life here was expensive and she could not initially find a job. Meanwhile she said she was under 18 when she came here in March 2008. I note, meanwhile, that [Ms A] did not turn 18 until November of that year. [Ms A] said she had already realised she could not continue her studies three months after arriving in Australia, which would have been around June 2008. She said her visa expired, and I note that it did so in March 2010. I asked her if she considered returning to China when her visa expired. In reply, she said that around that time her father fell into financial difficulty and that she thought she might be able to help him by sending money home. By that stage, she said, she had left Adelaide and the homestay where she was accommodated for the first three months of her time in Australia, and had moved to Melbourne where she stayed several years. I asked her if she could provide any evidence of having affiliated with any Catholic church parish in Melbourne during those several years and she said she could not.
[Ms A] claimed that her son cannot return to China because the Chinese government bans under-18 year-olds from attending even the state-sanctioned Catholic church there. She mentioned that she now has a second child, not included in this application. She said that both children were baptised at [Church 1]’s in [Suburb 1]. [Ms A] claimed that because her first son is autistic, and has lived here all his life, a move to a different environment like China would be traumatic for him.
I put to the applicants that the last piece of information might not, on its own, be capable of attracting refugee or complementary protection under the criteria in the Act. I asked them if they meant to ask me to refer the matter of their first son to the Minister in relation to s.417 of the Act and, after some discussion with their adviser, they said they did.
Findings in relation to s.36(2)(a) of the Act
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.[7] 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.[8]
[7] MIMA v Rajalingam (1999) 93 FCR 220 .
[8] 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.

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.[9] 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.[10]
[9] 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
[10] Sun v MIBP [2016] FCAFC 52 at [69].
In this matter, I find that the applicants’ claims have nexus with the “religion” criterion in s.5J(1)(a) of the Act.
I accept that [Ms A] has been attending [Church 1] since 2015. I accept that her witnesses are genuine in their appraisals of [Ms A]’s sincerity. Whether she is a genuine Catholic, however, is a matter to be determined on the evidence as a whole, including evidence from [Ms A] herself.
Since I accept that [Ms A] has been attending [Church 1] since 2015, I must have regard to s.5J(6) of the Act, which states:
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.
[Ms A]’s evidence about her conversion to Catholicism in China was not impressive. She demonstrated what appeared to be somewhat near to an incapacity to articulate subjective spiritual experience. She was not able to articulate how following the state-authorised Catholic church would impinge on individual principles or prevent her from engaging in the Catholic rituals and sacraments. As noted, she seemed to deflect detailed discussions requiring insight and examining motivations onto others. However, apparent ignorance is not in itself evidence of disingenuousness. Hence I am prepared to accept for the purposes of this matter that [Ms A] was baptised in China and that, along with her family, she was a member of an unauthorised Catholic church group there. For this reason, it is reasonable to expect that [Ms A] would affiliate with Catholics in Australia for genuine reasons. Accordingly, her conduct in affiliating with the [Church 1] is not disregarded.
I accept that [Ms A] knows, respectively from school and through her local family church, the two individuals in China she calls [Ms D] and [Sr C].
I accept that [Ms A]’s family has been continuously involved in a small, approximately 15-person, local Catholic family church for well over a decade. I accept that this church conducts services in family homes on a rotational basis in their neighbourhood in Fujian province. I accept that the family conducts its religious life in a small scale, low key manner. I note that [Ms A], for her own part, has called this practice “secret.” However, she has suggested that even after authorities became aware of the church, its pattern of religious practice, rotating amongst respective family homes for more than fifteen years, has been unchanged. On this evidence it is hard to find that adherents of this church have had, or would have, to alter or modify their behaviour to avoid being persecuted. On this point, more later.
I give weight in this matter to [Mr B]’s capacity to affiliate with her church for two years in Fujian without attracting potentially relevant harm or interference. I give weight to the fact that when she left China she was not acting out of fear of being persecuted. I give weight to the fact that when her presence in Australia became unlawful she declined to return not because she was fearful of being persecuted but because she thought she might be able to earn money to send home to her parents. I give weight to the fact that she remained on this path for several years. I give no weight to her suggestion, in essence, that she would have sought protection but for her not wanting to use religion as an “excuse.” On the evidence before me, she did not seek protection for reasons of her religion because she had no genuine need to do so. Her delay in lodging a protection visa application thus remains concerning.
[Ms A] has sought to address this concern in her claims that a catastrophic development arose in 2016 that put her explicitly in danger of being arrested, detained and mistreated on return to China: her being implicated in the contraband and proselytising activities of [Ms D] and [Sr C]. On review of her evidence about this activity and the authorities’ response to it, I am confident that the whole story is a fabrication.
I consider it fanciful that shipments of perishable and highly-taxed milk powder would have been used as a medium for secretly importing potentially banned foreign religious material into China. I consider it far-fetched that such shipments would have continued to be completed every two months for around two years without being intercepted. I find that, to address this concern, [Ms A] improvised the claim about the co-opted customs officer keeping the racket going as long as it purportedly did. I give no weight to [Ms A]’s claimed confidence in assuming that the operation would only ever go well for all concerned simply because [Ms D] said so: this claim had the air of unreality about it. I consider fanciful the evidence of [Ms D] operating, and persisting in operating, an English school that used religious materials to teach English to the children of non-Christian parents, even though most of the children attending the school were purportedly Catholic. I am not satisfied that nerves account for the discrepancy in [Ms A]’s evidence as to how the police found out that she had been the sender of the religious materials. I give weight to the evidence of [Ms A]’s family continuing to practice with the same family church as though none of this had ever happened. Having considered the evidence as a whole, I do not accept that [Ms D] or [Sr C] were ever arrested, let alone that hey remain in jail. Hence I find no relevant reason for [Ms A]’s PV application in 2016 after so many years in Australia. I can only assume that she had other reasons not related to her religion.
In passing, a potential reason for [Ms A] seeking to secure her status in Australia may have been that she fell pregnant to [Mr B] around the middle of January 2016. She and [Mr B] married in May 2016 in time for their first child to be born, as it were, within wedlock. Given [Ms A]’s references to the costs of subsisting alone in Australia, she was likely concerned about the cost of raising her imminent child in China after so many years out of the labour market there. It strikes me as likely that [Ms A]’s reasons for lodging a PV application in May 2016 were triggered by these events and considerations. She still cites the welfare of her child as a reason why she does not want to return to China.
In any event, I am not satisfied that the claimed trigger for [Ms A]’s PV application is genuine and factual.
I have considered the independent country information about efforts by the Chinese government to “sinicise” religious institutions there particularly since around 2018. I accept that the Chinese government has been taking steps to curb the growth of state-sanctioned churches. I give some weight to the analysis, cited above, recognising a “grey” religious “market” in China, notwithstanding developments in and since 2018. Having regard to the independent evidence cited and to [Ms A]’s own evidence about her family’s continuing practice with its local family church, and notwithstanding the banning of under-18s from attending state sanctioned churches, I find that [Ms A] and the other applicants in this matter will not be persecuted if they resume religious life in their local family church. Whilst acknowledging that the local family church operates in a low key fashion, I consider that a significant reason for that behaviour is that it is very small scale: [Ms A] indicates that it only has about 15 members. I do not accept on the evidence before me that this church has been able to operate unchanged for at least 15 years because it is kept secret from authorities. I do not accept on the evidence before me that local authorities are unaware of this church. I find that the local authorities in Fuqing where [Ms A]’s family tolerate this church, mush in the way that Fujian authorities have exercised a relatively relaxed attitude towards house churches for several decades. That is to say that I do not accept that [Ms A] or her family would have to alter their religious behaviour in Fujian to avoid being persecuted.
I have considered whether [Ms A] and the other applicants face a real chance of being persecuted due to having affiliated with the Roman Catholic church abroad, but I am not satisfied on the evidence before me that they do.
[Ms A] claims her son’s religious freedom would be repressed because he is under 18. On the evidence before me, I am not satisfied that he would be prevented from being raised amongst the congregation that constitutes the house church attended regularly by [Ms A]’s parents in Fujian.
On the evidence before me, I am not satisfied that [Ms A] or the other two applicants in this matter face a real chance of being persecuted in China in the reasonably foreseeable future separately or cumulatively for reasons of religion or for any of the other reasons cited in s.5J(1)(a) of the Act. Their claimed fear of being persecuted is not well founded. They are not refugees.
For the reasons given above, I am not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
Having concluded that the applicants not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa), whereby a person who is found not to meet the refugee criterion in s.36(2)(a) 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.
Relevant to this, s.36(2)(aa) refers to a “real risk” of an applicant suffering significant harm. The “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
“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.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment. Essentially, according to s.5(1) of the Act, all three of these forms of “significant harm” require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR.
“Cruel or inhuman treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. “Degrading treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.
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.
Accepting that the applicants are nationals of China, I find that China is the receiving country in this matter.
The applicants’ claims to complementary protection are essentially the same as their refugee claims. Those claims have failed due to a lack of credibility and because they do not meet the “real chance” test. In view of the “real risk” test imposing the same standard as the “real chance” test, their protection claims can no more succeed as complementary protection claims than they have as refugee claims.
One claim that should be considered separately is the claim about harm [Ms A]’s autistic son [would] suffer in the event of being removed to China. On the information before me, I am not satisfied that he would face the death penalty, or arbitrary deprivation of life. Also, I am not satisfied as to the existence of an intention to harm him in any of the other three ways described in s.5(1) of the Act.
On consideration of the evidence in its entirety, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence being removed from Australia to China, there is a real risk that the applicants will suffer significant harm as exhaustively defined under s.5(1) of the Act.
Accordingly, I am not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
There is no suggestion that the applicants satisfy s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, they do not satisfy the criterion in s.36(2).
S.417 referral
[Ms A] requests that the Minister use non-binding powers to intervene and grant a protection visa to her [son]. I refer this request to the Minister, without prejudice as to outcome, observing that the request corresponds with the Minister’s following guideline:
Compassionate circumstances regarding your age and/or health and/or psychological state, that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship.
decision
The Tribunal affirms the decision not to grant the applicants protection visas.
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.
…
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.
…

[2022] AATA 4150

7 October 2022

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