1708386 (Refugee)

[2022] AATA 2845

1708386 (Refugee) [2022] AATA 2845 (15 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Harry Huang (MARN: 9579277)

CASE NUMBER:  1708386

COUNTRY OF REFERENCE:                   China

MEMBER:Luke Hardy

DATE:15 July 2022

PLACE OF DECISION:  Sydney

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

Statement made on 15 July 2022 at 1:38pm

CATCHWORDS
REFUGEE – protection visa – China – religion – brought bibles or Christian publications for relative when returning from working in third country – arrested, interrogated and tortured for association with cult – harassment and threats to family since departure – wife a Christian in home country and applicant in Australia – credibility – inconsistent claims and evidence – released without charge – minimal church knowledge and activity – members of family unit – second applicant wife applied in own right but made no separate claims and assessed as dependant – Australian-born child – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H(1), 5J(1)(a), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sun v MIBP [2016] FCAFC 52

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 dependants.

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 applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants, husband [the first applicant], wife [the second applicant] and their [Age] year-old child, are citizens of China. The husband and wife arrived in Australia on [in] November 2014. They lodged protection visa applications on 29 January 2016. The child was born here in [Year 1] and added to the present application. The delegate interviewed [the first applicant] and [the second applicant] and refused to grant the visas on 5 April 2017. The applicants then sought merits review by this Tribunal and the matter was constituted to me. I find that the review application is valid.

3. The applicants, who are represented, were invited to attend a hearing before the Tribunal on 13 July 2022 to give evidence and present arguments. Initially, [the first applicant] and [the second applicant] indicated through their adviser that they would both attend along with the latter, but in a subsequent communication, the adviser informed the Tribunal that [the first applicant] would attend alone. No reason was given in that notification for [the second applicant]’s non-attendance and no hearing postponement was requested.

4. [The first applicant] attended the hearing alone on 13 July 2022. He confirmed the written advice about [the second applicant] not attending. There was some discussion about this, the upshot of which was that there was still no request for a re-scheduling to allow [the first applicant]’s wife to be heard.

5. I asked [the first applicant] if there was any compelling reason for [the second applicant]’s decision not to appear, and he said she has been experiencing emotional stress over the murder of her brother. He said this happened before he and [the second applicant] came to Australia in 2014. He said it had nothing to do with his or her protection claims. He said that to the best of his knowledge his brother-in-law had been killed in a matter involving illicit drugs and the killer had been caught and jailed. He said that eight years later, [the second applicant] still suffered frequent bouts of compulsive grief. [The first applicant] confirmed again that there was no request to postpone so as to allow [the second applicant] to appear before the Tribunal at some later time. Meanwhile, I have received no such request from their migration agent. Although [the first applicant] said [the second applicant] takes medication prescribed by a psychologist, no information from any health professional has been submitted. By contrast, the applicants have submitted medical reporting to the effect that their daughter in China is being treated for epilepsy. I put to [the first applicant] that [the second applicant] had attended the delegate’s interview, in what would appear to have been similar circumstances as far as her brother’s death is concerned, and he acknowledged that she had done so. 

6. After due consideration, I decided that I would hear [the first applicant]’s evidence at the hearing as scheduled. On the information before me, I decided not to give [the second applicant] a further opportunity to appear. I decided that, as to her own claims, I would make a decision on the material already before me, and that I would also include her, along with the applicant child, as a dependent applicant, meaning that if [the first applicant]’s application succeeded, she and the child would be included in the decision as his immediate family members.  

7. The Tribunal hearing was facilitated by an interpreter in the Mandarin-English medium.

8. For the purposes of the review, the applicants have submitted a copy of the delegate’s decision, which contains a summary of their claims and evidence to the Department of Home Affairs (the Department) along with citations of relevant, independent country information.

   Criteria for a protection visa

9. 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.

10. 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.

11. 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).

12. 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.  

13. 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

14. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration - PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines - and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF Claims and evidence

    The issues

15. 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.

16. For the following reasons, I have concluded that the decision under review should be affirmed.

    Claims to the Department

    [The first applicant]

17. In their primary application form, the applicants made the following claims through [the first applicant]:

    1.     On [Date 1]. 1 was born on [Village], Pingtan County, Fuzhou City. paragraphs Fuj ian Province. China (PRC).

    2.     From [Year 2] to [Year 3], I studied at [Village] Primary School. From [Year 3] to [Year 4]. I studied at [Town] Middle School. I could not complete my junior high school education, as my family was poor and I had to assist my parents to make basic livings.

    3.     When I was just over 14.5 years old in [Year 4], 1 started working as [an Occupation 1] on [work] sites. At the beginning. I followed those senior [work sector 1] workers, and I gradually became skilful and experienced later on. I sometimes contracted jobs by myself, and sometimes joined the projects which were contracted by my friends.

    4.     [In] October 2010, I got married with [the second applicant]. Our daughter [Ms A] was born on [Date 2].

    5. Before my daughter was born. [Mr B], who used to live in the same village with my family and who ran a [Business 1] in [Town, Country 1], backed to my hometown for a holiday. He took the opportunity to recruit people to work for him in [Country 1]. By then, I worked as a [work sector 1] worker for nearly 10 years. I really expected to have a job that I needed not to work too hard but earn good money at the same time. I, therefore, was interested in [Mr B]'s offer and obtained my passport in [2012]. However, my daughter was not in good health in the first year after she was born. I had to remain at hometown until March 2013.

    6.     On [Day 1] March 2013, 1 left China for the first time, and arrived in [Country 1] on [Day 2] March 2013. I worked at [Mr B]'s [Business 1] for one year. On [Day 3] March 2014, I left [Country 1] for a holiday in China, and I arrived in China on [Day 4] March 2014.

    7.     I spent more than one month in China. During this period, I met my distant relative [Mr C] who grew up together with me. When I was a little. [Mr C] and his parents gave my family a lot of supports and helps, because my family was subjected to financial hardship. Before I left for [Country 1] for the first time in March 2013, [Mr C] was a self-employed [Occupation 2], doing [work sector 2] business. Unfortunately, in June 2013, [Mr C] suffered from a serious accident. Although he luckily survived, he lost one of his [body parts]. After I heard the tragedy. I felt sympathy with [Mr C], and I thought that he would live in great difficulties from then on. However, when I met [Mr C] during my holiday in China, I found that he was unexpectedly full of confidence to his future. He told me that he was saved by Lord Jesus and that he became a devout Christian. I was not a Christian, but I was very happy for [Mr C]. Furthermore, I lent him RMB 100,000 for him to open a small [Business 2] so that he could make basic livings for his families.

    8.     On [Day 5] April 2014, 1 left China for the second time, and I arrived in [Country 1] on [Day 6] April 2014. After that, both [Mr C] and I always contacted with each other through WeChat or QQ on the Internet.

    9.     On [Day 7] September 2014, I returned to China on a business trip, because my boss [Mr B] wanted me to get supplies for his [Business 1] in [Country 1]. Around one week before that. I contacted [Mr C] for the last time, telling him about my trip to China. He then asked me to bring some Christian publications to him, because I used to tell him that there were many Christian books or magazines, which were mainly published in Taiwan, in [Country 1]. With helps of [Mr B] and particularly his friends who were Christians, I collected about 15-16 Christian magazines or books and brought them to China.

    10.   On the morning of [Day 8] September 2014, I was suddenly arrested by the Public Security Bureau (PSB), because I was accused of providing financial support to develop illegal groups of "Evil Cult" in China. Meanwhile, the police discovered those Christian magazines or books, which I did not have time to give to [Mr C]. The police suspected that I was not only actively involved in illegal groups of "Evil Cult" but brought "illegal" publications from the overseas to China. I later on learned that [Mr C] was arrested by the police when he secretly organised a weekly worship at his [Business 2] on the evening of [Day 9] September 2014; and that he was subjected to inhuman torture by the police; and that he had to confess everything. As a result, I was in big trouble with the police.

    11.   From [Day 10] September to [Day 11] October 2014, I was detained at [a detention centre] for over three weeks. During my detention, the police interrogated me for many times. I repeatedly told the police that I was not a Christian at all and that I had never been involved in any illegal groups of "Evil Cult", but the police tortured or mistreated me with high light or electricity or water or police batons during the interrogation. Finally, I had to make confession under torture and sign on the statement which had actually prepared by the police. After that, I was seriously ill and fainted many times. My good friend [Mr D], who was the nephew of [Mr B], took this opportunity to bail me out for medical treatment through bribing the police. Therefore, I was released on [Day 11] October 2014.

    12.   I knew that it was the only chance for me to escape from China, because my case was not finished and I had to report to the PSB on every Monday. With helps of my wife's families, I obtained an Australian visa afterwards. On [Day 12] October 2014, [Mr D] arranged me to leave China with my wife from Fuzhou airport through his friends. [In] November 2014, my wife and I finally arrived in Australia.

    13.   My wife gets pregnant now.

    14.   Her expected date of confinement will be on [Date 3].

    15.   Since I left China, the police have harassed and threatened my parents and brother for many times. I have been blacklisted by the PSB.

    16.   My wife became a Christian when she was in China. Since we arrived in Australia, my wife brought me to attend a Christian church regularly.

    17.   If I go back to China, I must be arrested by the PSB immediately. I will be sent to the jail and once again subjected to inhuman or cruel torture or mistreatment. My wife must be deeply implicated by my case. Therefore, we have to seek protection in Australia.

    My migration agent, Pricilla International Co. Pty. Ltd., has read and explained to me the contents written in English and Chinese in the Statutory Declaration. I clearly understand and agree all contents written in English and Chinese in the Statutory Declaration and the Statutory Declaration accurately and completely presents my claims.

    I understand that a person who intentionally makes a false statement in a statutory declaration is guilty of an offence under section 11 of the Statutory Declarations Act 1959, and I believe that the statements in this declaration are true in every particular.

    Evidence to the Tribunal

18. At the Tribunal hearing, [the first applicant] gave different evidence in relation to a number of seemingly significant facts.

19. [The first applicant] said that the materials he took back to China in his luggage were ten Bibles, not “15 - 16 Christian magazines or books.” He said that he was arrested and held on suspicion of being “a member of a Cult” and when released was still under suspicion of being a cult member, but did not suggest that the police accused him or charged him or took any action on the evidence of the alleged smuggling, whether the material smuggled was Bibles or other books or magazines. Asked about the church in Australia that he had claimed to have been taken to by [the second applicant], [the first applicant] indicated it was not a church but “some crazy person’s house” perhaps in or near [Suburb].  At one stage in the hearing he said he thought (“I think …”) his friend may have bribed the police to have him let out on bail, whereas in his original statement to the Department he was unequivocal in claiming that a bribe had been added to bail. [The first applicant] told me that police pressure on his family caused his daughter in China to come down with epilepsy, whereas in his statement to the Department he said that she had been sickly since birth. When I asked him on what professional advice he was relying when he said that police pressure had caused his daughter’s epilepsy, he said this was “just [his] “opinion.”

20. In his evidence, [the first applicant] said that neither his Christian boss in [Country 1], [Mr B], nor his cousin, [Mr C], advised him of any risk about smuggling Bibles or other foreign Christian publications into China but had, rather, told him that there would be “no problem.” This struck me as being somewhat implausible.  

21. When I asked [the first applicant] why the police did not charge him with the smuggling offence but, rather, released him merely on suspicion of something else, he merely said that he himself did not know at the time that he had done anything illegal.

22. [The first applicant] told me [the second applicant] is Christian and that he is not a believer in Christianity. He indicated he has not been baptised. However, I note his previously having told the Department that, since being taken to “church” by [the second applicant], he identified as a Christian even though not yet baptised.

23. [The first applicant] told me he works in Australia as a [Occupation 3]. He said he sends money back to China to support the daughter there who has epilepsy. At one stage of the hearing he said he had done little paid work in China. I asked him if the need to send money home from abroad was part of the reason he wanted to stay in Australia and he said he would rather be in [Country 1] where he could start a business by setting up a store.

24. [The first applicant] said he had planned to return to China after a few years but had not done so because the police have told his father he should return to hand himself in. He said the police in China do not follow due process like police on TV. He said he did not know which church his cousin followed. He said that to local police in China any unauthorised church is a “cult.”

    [The second applicant]

25. Though applying for a protection visa in her own right (by applying as a “Part C’ applicant), [the second applicant] made no claims to the Department of her own. She indicated, however, that she was relying on [the first applicant]’s statement which I have cited above.

26. [The second applicant] evidently declined or was unable to answer questions at the protection visa interview with the delegate:

    At the beginning of the interview Applicant 2 was able to respond when confirming her understanding of the purpose of the interview and confirmed her understanding that she her protection claims indicated that she fears returning to China because she has converted to Christianity.

    However, during the interview Applicant 2 was unable to express any of her claims for protection and did not answer most of the questions asked. Applicant 2 was asked if she could tell me what Christians believe in and Applicant 2 gave no response.

    Applicant 2 was … given multiple opportunities to express her claims for protection and given a break in order to speak to her representative; however she was still unable to answer most of my questions in relation to her claims for protection.

    Applicant 2 was given 7 days to respond to my concerns in writing as it became apparent that she could not respond to my questioning. Applicant 2's representative agreed to this arrangement.

    No further submission were made by Applicant 2 or her representative …

1. [The second applicant] did state at Part C Q.33 of her application form that she is “Christian.” The only other testimony to that effect is in [the first applicant]’s reference to her having become Christian before they came to Australia and the claim about her having taken him to a church, or “some crazy person’s house,” at some stage after they arrived in Australia.

2. I take particular note that notwithstanding having been given an opportunity through her own adviser to respond to the delegate in writing, [the second applicant] provided no further information to the delegate.

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

3. 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.[1] 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.[2]

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

   [2] 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.

4. 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.[3] 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.[4]

   [The first applicant]

   [3] 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

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

5. I note that he previously claimed to the Department that he identified himself subjectively as a Christian. However, he declared to me that he did not believe in Christianity. Apparently, the basis on which he previously claimed to be a genuine Christian was that his wife had taken hm with her to church in Australia, which could still conceivably mean that he was briefly a genuine believer, except that he changed his evidence at the hearing, claiming that the “church” was actually “some crazy person’s house.” On this information it is hard to conceive [the first applicant] was ever credulous about Christianity in particular or even religion in general. On the evidence before me I find that [the first applicant]’s claim to the Department was false at the time he made it. That in itself does not mean he did not illegally import Christian literature as a favour to a Christian friend, but it does raise a serious concern as to [the first applicant]’s overall reliability.

6. In addition, however, [the first applicant] provided other discrepant and seemingly implausible evidence. His claim about the “ten Bibles” was not the same as “15-16 Christian magazines or books.” His claim about police pressure causing his daughter’s epilepsy turned out to be just an opinion he claimed to hold. In evidence to the Tribunal, [the first applicant] omitted suggesting that the police accused him of illegally importing foreign Christian literature, instead telling me they accused him of being a member of a “cult.” On the evidence before me, including [the first applicant]’s many references to local police in China being draconian and far from fair, it struck me as implausible that local authorities purportedly had all the evidence they needed to convict him for having illegally imported foreign religious literature, and purportedly suspected him of a more serious offence, they let him out on bail. Meanwhile, his evidence about his friend posting bail varied between knowing and merely thinking that this friend also added a bribe. Meanwhile, it struck me as implausible that [the first applicant] took on the task of illegally importing the books or magazines he claims to have imported unaware that he was doing something that might cause him problems with the authorities if detected.

7. Interestingly, in [the first applicant]’s oral version of events, the Chinese authorities knew ahead of his return that was carrying the banned literature, but did not make an arrest at the port of arrival. On the evidence before me, the authorities gave him ample time to get rid of the offending material entirely as they did not come to his house until the next day. When I asked him how it had come to pass that his luggage was not inspected at the airport, leading to his arrest right there, say, before he could pass the illegal material to someone else, he said that this was because his cousin and [Mr B] had told that importing the material was “okay.” Given the suggestion that the authorities had foreknowledge of the importation offence, it strikes me as incongruous and implausible that mere local cops were sent to call on [the first applicant] at home the next day. Overall, I find that [the first applicant] merely concocted this story and was unprepared when asked to speak to it in any kind of plausible detail.

8. Whereas [the first applicant]’s claims about the importation of the Christian literature are claims have nexus with the s.5J(1)(a) criterion of actual or imputed “religion,” I am not satisfied that they are credible. I am not satisfied that [the first applicant] imported any banned literature, or that he has ever been suspected of association with a “cult.”

9. I give no weight either way to [the first applicant]’s assertions about his wife being a Christian. Hence I am not satisfied that [the first applicant] faces a real chance of being persecuted in China for reasons of association with his wife [the second applicant].

   [The second applicant]

10. Notwithstanding that she has applied for protection in her own right, [the second applicant] evidently relies entirely on the success of [the first applicant]’s claims.

11. As noted, the only evidence to the effect that [the second applicant] is Christian is her bald assertion to that fact at Q.33 of her original protection visa application and the similarly bald references that [the first applicant] made in his original statement of claims and in oral evidence at the Tribunal hearing. I have been unable to give these references from [the first applicant] any weight either way in respect of his claims about himself. I am also unable to give them any weight with regard to [the second applicant]’s own case. That leaves me with nothing more than [the second applicant]’s bald assertion about being a Christian. However, [the second applicant] has not enabled this bald assertion to be tested in any detail.

12. Ultimately there is insufficient evidence on which to be satisfied that [the second applicant] is a Christian; hence I am unable to be satisfied that she faces a real chance of being persecuted in China for reasons of actual or imputed “religion” in the reasonably foreseeable future.

13. In the alternative, even if I accept that [the second applicant] is a Christian, simply on the basis of her one-word answer to Q.33 in her protection visa application form, and even if I accept that she has been a Christian for some unspecified period before she came to Australia, that bald fact alone is insufficient basis on which to be satisfied that she faces a real chance of being persecuted in China for reasons of being a Christian.

    The third applicant

14. The child of [the first applicant] and [the second applicant] is included in this application as a Part C applicant, which on the face of things means that he is claiming protection in his own right. However, it is evident from all that has been submitted to the Department and the Tribunal that as an infant born in Australia in [Year 1], and one who has never lived in China, he is making no claims of his own and is reliant on the outcome of either his mother’s case, or father’s, for the success of his own application.

15. In light of findings above, the application of the third applicant must fail.

    Conclusions

16. Having considered all of the evidence before me in its entirety, I am not satisfied that any of the applicants face a real chance of being persecuted in China for any reason cited in s.5J(1)(a) of the Act. Their claimed fear of being persecuted is not well founded. They are not arefugees.

17. 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

18. Having concluded that do 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.

19. 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).

20. “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.

21. 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.

22. “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.

23. 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.

24. Accepting that the applicants are nationals of China, I find that China is the receiving country in this matter.

25. The applicants’ claims to complementary protection are essentially the same as their refugee claims. Those claims have essentially failed to meet the “real chance” test. [The first applicant]’s claims were generally found to be unreliable and there was insufficient evidence on which to be satisfied that [the second applicant] faced a real chance of being persecuted. The fate of the third applicant’s case is also detailed above. In view of the “real risk” test imposing the same standard as the “real chance” test, the applicants’ protection claims can no more succeed as complementary protection claims than they have as refugee claims.

26. Having considered all of the evidence before me, 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 any of the applicants will suffer significant harm.

27. Accordingly, I am not satisfied that any of the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).

    Other findings

28. There is no suggestion that any of the applicants satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, they do not satisfy the criterion in s.36(2).

    decision

29. 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.

    …