1711984 (Refugee)

1711984 (Refugee) [2021] AATA 2383 (14 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1711984
COUNTRY OF REFERENCE:                   China
MEMBER:C. Packer
DATE:14 May 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 May 2021 at 3:03pm
CATCHWORDS

REFUGEE – protection visa – China – religion – practice of Buddhism and Yi Kuan Tao – Yi Kuan Tao no longer categorised as an evil cult – decision under review affirmed

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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 10 May 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of China, applied for the visa on 12 February 2016. A delegate of the Minister interviewed him on 10 May 2017.
The applicant’s claims in the application had been centred on the parents’ fear of a loan shark, and his and his family’s practice of Buddhism and Yi Kuan Tao, supported with a Baptism card for Taoists issued 23 January 2016. In the review he supported his claims about his practice of Yi Kuan Tao with photos, and statements and evidence of practitioners in Australia. At hearing he stated his parents had returned the borrowed money and he did not claim to fear a loan shark. After considering his evidence and the material before the Tribunal, I find he would not face serious harm or significant harm in China and my assessment follows.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.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, FINDINGS
Background
The applicant’s protection visa application provided some basic background information, and the applicant supplemented this with further details in the review and at the hearing. The applicant is a mature man born and raised in a village in Fuqing city in Fujian province. His father, mother and sister are in the home village in China. He completed secondary schooling in China before travelling to Australia as a student. His application showed that he entered Australia in May 2008 on a student visa. His application showed employment in China as a worker when at high school, and casual labour in Australia.
At hearing he stated he works in Australia as a [Occupation 1]. He has sent money to his parents. He stated in China his mother stays at home, the father is a [Occupation 1] and the sister is single and [works]. The family has a field and they farm [crops].
I note that Yi Kuan Tao may be referred to variously as Yiguandao and Yi Guan Dao.
Summary of claims
In his application the applicant claimed to fear harm in China from loan sharks and the authorities. A summary of his claims:
·His parents were originally Buddhists but started worshipping Yi Kun Tao after receiving evangelism from a Taiwanese missionary.
·The parents also set up a family hall for Buddha worship.
·He also pursued Tao.
·In his last year of High School the village authority shut down their family hall, fined them for evil cult activities. Their activities ceased.
·After arriving in Australia “there was no chance for me to practice Tao”.
·“My family borrowed a lot of money. My parents ran away from those creditors- loan shark as they urged them to pay up. My financial pressures grow gradually thus I could hardly focus on studying and mentally suffered.” His family warned him it was not safe in China as the loan shark was looking for us. Therefore he stayed here.
·“One of my relatives was wanted by the gangs hired by the creditors whom he made a usurious loan. His home was destroyed by the gangs. Local government did nothing about it. They protect the gangs indirectly.”
·“I appointed a so called "agent" to help me pay the school fee but yet it did not happen. Later I found out it was a fraud and the money was gone.”
·“In 2011, one of my countryman introduced Yi Kun Tao to me. Since then, we went to pursue Tao for 2 years in family hall.”
·He started practicing Tao here. He and friends made a house altar. He wanted to preach in China but “my idea stopped when my fellow countryman was arrested in 2014.”
·In 2015 his parents were arrested due to preaching Tao. Currently they are still under the surveillance of local government.
·“Recently, I found a house alter formed by a Taiwanese.”
The delegate’s decision (a copy provided to the Tribunal by the applicant) shows that at the delegate’s interview:
He mentioned at the PV interview that his parents had borrowed money from loan sharks to fund his
study and that he held fears in this regard. It was put to him that the information provided to the
Australian visa processing office in support of his student visa application indicated the money was
borrowed from a legitimate financial institution. The applicant responded that he didn't know about it.
The applicant arrived in Australia on [date]/5/08 and lodged his PV application on 12/2/16. When this was
put to him at the PV interview he was unable to provide a plausible explanation in regard to the eight
year delay.
The applicant provided inconsistent information in regard to when he started practicing Yi Guan Dao
in Australia. At interview he said he started practicing in early 2016. In his written statement he claims
to have been introduced to the religion in Australia in 2011. I am not satisfied he provided a plausible
explanation for the discrepancy.
Whilst he claims to have been practicing Yi Guan Dao since he was in high school he was unable to
provide any detail in regard to how he practiced the religion in China or Australia. When asked why he
did not continue to practice the religion in Australia after arriving in 2008, he said he couldn't find
anyone.
When asked to provide details of how he has been practicing Yi Guan Dao in Australia his responses
were vague, lacking in detail and not indicative that he was speaking from personal experience.
He was given a number of opportunities to explain to the interviewing officer his understanding of the
specific beliefs associated with Yi Guan Dao. However his responses were superficial, general in
nature, and not consistent with available information in the religion.
At hearing I discussed his claims concerning the loan shark. He stated his parents had once had problems with the loan shark, so they left the province, and they only returned home to the village in 2015. The parents had now returned the borrowed money to the loan shark. I put to him that this means he no longer fears harm from a loan shark, and he agreed that he is just afraid because of his religious belief.
Evidence
The evidence before the Tribunal includes the following material:
·the applicant’s Protection visa application form lodged in February 2016, and statement which gives his reasons for seeking protection in Australia
·passport pages (former passport)
·a Baptism Card for Taoists issued [date] January 2016
·the Protection visa decision record (‘delegate’s decision’) dated in May 2017, which is the subject of this review. He provided a copy to the Tribunal
·the application for review
·photos in Australia
·supporting statements
On 5 May 2021 the applicant appeared by video before the Tribunal to give evidence and present arguments. The hearing was conducted with the assistance of an accredited interpreter in the Mandarin and English languages. The applicant stated he understood the interpreter, and during the hearing he did not tell me he had any particular difficulties with the interpretation. A witness Mr [A] also gave evidence that mirrored his written statement.
At the start of the hearing I asked whether he was well and able to talk about his claims, and he stated he was. During the hearing the applicant appeared to fully understand questions and gave coherent answers and explanations. Overall, I assess that he was competent to give evidence and had a full opportunity to put forward his claims and arguments.
Assessment of claims
The applicant claims to be a national of China. He had previously provided a copy of his Chinese passport. At hearing he had his current passport issued [in] 2019 and valid to [2029]. All the available evidence, including the applicant’s oral evidence and familiarity with China, supports his claim to be a Chinese national. China is therefore the receiving country for the purpose of assessing both the applicant’s protection claims, and his claims under the complementary protection grounds. Having considered the material before the Tribunal including the applicant’s evidence given at the hearing, I accept he has the identity claimed.
Returnee/failed asylum seeker
As discussed at hearing he has a valid Chinese passport and so he has evidence of his Chinese nationality. He would be able to travel to and enter China and Fujian. Country information[1] shows that Chinese law provides for foreign travel, emigration, and repatriation. On return at the airport he would be monitored by the border control authorities. However, in light of the foregoing there is no material before the Tribunal that suggests he would be on a centralised list of high-profile individuals who are prevented from traveling internationally or that would put him under greater scrutiny on arrival.
[1] DFAT COUNTRY INFORMATION REPORT PEOPLE’S REPUBLIC OF CHINA, 3 October 2019 (the DFAT report)
As discussed at hearing the DFAT report[2] states that while DFAT is not able to verify the treatment of failed asylum seekers returned to China, DFAT has no information to suggest authorities target individuals solely for having sought asylum abroad if they have not otherwise come to adverse attention.
[2] DFAT report: Exit and Entry Procedures at 5.40-5.43; Conditions for Returnees at 5.44-5.45
In light of the foregoing there is no material before the Tribunal that suggests the applicant has done anything in Australia that would otherwise attract the adverse attention of the authorities. He has not openly expressed dissenting political views or criticised the Chinese Communist Party either in Australia or before he departed China. As discussed at hearing, I do not accept he is on a black list or that he would face harm because of his long time away from China, or because he waited before renewing his passport, or because he had sought Australia’s protection.
As discussed at hearing on return he would be required to apply for a resident identity card. He would need to present his hukou for examination by public security authorities, and the cost is not prohibitive. The DFAT report states in part:[3]
Costs of new or renewed cards vary according to location and the circumstances of the applicant. For example, the law exempts payment for urban residents on subsistence allowances and rural residents who live in ‘specially straitened’ circumstances. Breaches of the law can lead to disciplinary warnings, fines (ranging from RMB 200 to 1,000 - approximately AUD 40 to 200) and up to ten days detention.
[3] DFAT report: National Identity Cards at 5.51-5.53
After considering the documents and information before the Tribunal, including the applicant’s evidence at hearing, I do not accept there is a real chance the applicant would face harm on returning to Fuqing city, Fujian China because of his time away from China and time in the West, or because his passport expired and he had to renew it, or because he had sought Australia’s protection. I find that in Fujian there is not a real chance the applicant would face serious harm amounting to persecution, and not a real risk the applicant would suffer significant harm, because he would be a returnee and/or failed asylum seeker.
His practice of Yi Kuan Tao
At hearing I asked about his family in the village. He claimed that the parents and sister all practiced Yi Kuan Tao in the home. I put to him that Buddhism was legal in China, and he responded that his parents had been Buddhists who then practiced Yi Kuan Tao privately as it was illegal. I queried whether the family had faced any problems in China, and he responded that at the time he graduated they had been fined, because there was a place at home (an altar) where they bowed and this was discovered. Also, when they returned to the village in 2015 they had been detained 15 days and fined 5,000rmb.
At hearing I queried that if he had been practicing Yi Kuan Tao before he departed China and travelled to Australia as a student, why hadn’t he practiced Yi Kuan Tao when he arrived in Australia in May 2008 where he was free to practice. He responded that he was in a strange country and was unable to find any Buddhist place; then in 2011 when he was working in [Industry 1] someone told him about Yi Kuan Tao and he set up a home altar; and in 2016 he found [Temple 1]. Later in the hearing I queried why he and his family, being Buddhists, decided to practice Yi Kuan Tao and he stated that he had been very young in China and under his parents’ influence. Then in 2011 when he was working in [Industry 1] someone told him about Yi Kuan Tao and he did not do anything until 2016 when he went to the monastery.
I put to him that he had provided his Baptism Card for Taoists that shows it was issued on [date] January 2016; and in their statements, [a named person] and [Mr A] state the applicant came to the monastery on [date] January 2016. I queried why he was issued a Baptism Card for Taoists on his first visit to the monastery/temple when he was not known to them. The applicant at first responded that the Card was only issued after he completed all the procedures, and when I pointed out it appears to have been issued on his very first visit, he agreed and said he had misunderstood the question. I pointed out my concern that on [date] January 2016 he first went to the monastery, was immediately issued a Baptism Card for Taoists, and then a few weeks later on 12 February 2016 lodged his application, and so it appeared he went to the monastery to build a claim to be a refugee. He responded that no, he had not known where to contact until 2016.
At hearing the applicant discussed how he got warmth, good feelings and much more from Yi Kuan Tao. I queried how the actual practice of Yi Kuan Tao differed from Buddhism and he responded he cannot tell clearly. I asked what he did now in Yi Kuan Tao that is different to what he would do in practicing Buddhism, and he responded nothing different. He added that after he listened to explanations of Yi Kuan Tao he understood what they said. I put to him his evidence seems to be that how he practices Yi Kuan Tao is no different to how he would practice Buddhism. He responded that he agrees but he likes the monastery and the people there.
At hearing I asked how he would practice at home in China. He responded that Yi Kuan Tao is illegal and so he would lose his belief. I pointed out that if he returns to the home village he would be able to practice at home, and as his practice is no different to practising Buddhism he would not come to the adverse attention of the authorities. He responded that he has told the truth.
As discussed at hearing, in the DFAT report DFAT broadly assesses[4] that restrictions on the free practice of religion continue to tighten in mainland China and so would likely affect followers of Yi Kuan Tao, and so they may face a degree of harassment and be subject to suppression by Chinese authorities and police. The DFAT report also discusses Buddhism and Taoism in China, and states in part:
3.37 Chinese law recognises five religions (Buddhism, Taoism, Islam, Catholicism and Protestantism), members of which must register with the government’s Patriotic Associations mentioned above (Protestants must be non-denominational). These organisations must be independent of foreign associations (for example, the Vatican).
3.48 DFAT assesses an individual’s ability to practise religion can be influenced by whether the individual exercises 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 CCP to be closely tied to other ethnic, political and security issues.
3.49 While the Constitution and 2018 RRA allow for sanctioned religious belief, DFAT assesses adherents across all religious organisations – from state-sanctioned to underground and/or banned groups - faced intensifying official persecution and repression in 2018, which continues in 2019. However, DFAT assesses that as Buddhism (as compared to Tibetan Buddhism) and Daoism are part of China’s cultural heritage and are not associated with foreign influence, believers are unlikely to experience significant restrictions.
[4] DFAT report at 3.75

As discussed at hearing, significant discussion about the religious practice in China is contained in a chapter of an authoritative source: a chapter by Ching-chih Lin, Assistant Professor in Chinese Religions Studies at the National Chengchi University in Taiwan, published in the edited 2017 book Religion and Nationalism in Chinese Societies.[5] Lin discusses the historical treatment of the Yiguandao practitioners and then notes that since the 1990s, Yiguandao has been associated with preserving cultural heritage in China:
From the 1990s, Yiguandao members became traditionalists preserving cultural heritage in mainland China. Some Taiwanese Yiguandao educators were discreetly invited to return to the mainland and help promote Chinese tradition, in order to slow down the rapid growth of Christian churches and sectarianism in rural areas. [p234]
[5] 3 ‘Yiguandao under the Shadow of Nationalism: Traitors, Conspirators, Traditionalists, or Loyalists?’, Ching-chih Lin, Chapter 8 in ‘Religion and Nationalism in Chinese Societies’, edited by Cheng-tian Kuo, 2017, Amsterdam University Press
Lin asserts that although Yiguandao had been suppressed in mainland China, ‘the situation changed in the mid-1980s’, and the ensuing ‘National Studies Fever’ of the 2000s provided a means for Yiguandao to contribute to the revitalisation of traditional culture:
There has been no legal status for Yiguandao as loyalist or traditionalist under the PRC’s rule. Yiguandao has been categorized an evil cult since the very beginning of the PRC. In order to be considered good citizens, followers of Yiguandao had to relinquish their membership and publicly denounce the religion and its leaders and followers. Traditional culture was disregarded and massively destroyed before the end of the Cultural Revolution. By then, there was no social or cultural space in which Yiguandao could survive. However, the situation changed in the mid-1980s.
The call for restoring traditional culture gave space for the reading of classics and the restoration of Confucius’ status. Taiwan’s experiences in promoting the movement of reciting classics and poems were then demanded in mainland China also. The PRC needed traditional culture to restore national glory and strengthen its national identity. The ‘National Studies Fever’ (guoxuere 國學熱) began in 1993 in the universities, gradually spreading to the public and becoming popular in the 2000s. Scholars, educators, and parents were devoted to the trend, while the state invested national resources to construct infrastructure and to promote the movement. The establishment of Confucius Institutes abroad represents the crystallization of the National Studies Fever. There are now 500 branches offering 1000 courses in 134 countries, educating in the Chinese language and propelling Chinese culture into the world. This can be considered a revitalization movement that the state and society use to try to restore the missing traditional culture, though Yiguandao also tries to syncretize Buddhism, Daoism, Christianity, and Islam with Chinese culture, mainly Confucianism. Yiguandao has thus participated in the trend. [p243]
According to Lin, representatives of the mainland Chinese government engaged in dialogue with Yiguandao representatives in Taiwan during the 1990s and 2000s. Lin references a book based on the Ph.D dissertation of a mainland Chinese official, which ‘suggests that the PRC government is seeking a way to allow Yiguandao to return to mainland China’:
[…] In fact, the backroom communication between the PRC and Yiguandao representatives started in the 1990s, and the public interactions began in the mid-2000s. In the first stage, the PRC government sent scholars with special backgrounds, such as retired police officers or officials of the Taiwan Affairs Office or the United Front Work Department to contact Yiguandao in Taiwan and abroad. Yang Liuchang (楊流昌), an official of the Taiwan Affairs Office, earned a PhD in Beijing investigating the history of Yiguandao and its development in Taiwan and published his dissertation in Hong Kong. This book suggests that the PRC government is seeking a way to allow Yiguandao to return to mainland China as it concentrates on the process of legalization and negotiations between the KMT and the religion.[p244]
Lin suggests that the PRC government may be seeking ways of legalising Yiguandao, but faces issues including how to manage its past criticism of the group, a situation also faced by the Taiwanese government thirty years ago
[…] The PRC government is facing a similar situation that its KMT counterpart experienced three decades ago: after criticizing and suppressing Yiguandao for decades, how does it now legalize the religion and reinterpret that past criticism and suppression? One potential discourse explains that Yiguandao in Taiwan has fundamentally transformed its conspiratorial tendencies into a patriotic and philanthropic religious association. The PRC government needs a reasonable discourse to legitimate the return of Yiguandao. [p244]
Lin also states that the Chinese authorities did not include Yiguandao on official lists of ‘evil cults’ issued in 2000 and 2005, indicating a change in the attitude of the authorities. ‘Mutual understanding’ between Taiwanese Yiguandao groups and mainland authorities commenced in the 1990s and was strengthened by invitations to Yiguandao leaders to visit mainland China from 2006. The status of Yiguandao in China changed to a ‘gray’ area:
From feudal superstition and counter-revolutionaries to protectors and missionaries of national culture, followers of Yiguandao are now expected to be loyal to the PRC by playing the traditionalist role against Christianity. On the list of evil cults announced in 2000 and 2005, Yiguandao was no longer categorized as an evil cult. Some branches were tacitly connived with to return to mainland China, as long as they did not cross over the ‘red line’ and preach religion in public. In the past, most activities of Yiguandao in mainland China were under surveillance; some religious leaders were even arrested or exiled. Now Yiguandao shifts its status in China from ‘red zone’ to ‘gray zone’, to borrow Yang Fenggang’s concept. It took more than five decades to overturn the relationship between Yiguandao and the PRC government. Mutual understanding began in the early 1990s when Yiguandao associations made donations to assist victims of several natural disasters. Yiguandao leaders entrusted messages to scholars to communicate with the think-tank Institute of World Religions, Chinese Academy of Social Science in 1996, and also invited the Institute’s faculty members to visit branches of Yiguandao and attend academic forums organized by the religion in Taiwan from 1997 onwards. Yiguandao leaders were also invited to visit mainland China by various bureaucratic administrations from 2006 onwards. The United Front Work Department even invited several top leaders of Yiguandao branches to visit several historical sites of the religion and the hometowns of the religion’s modern founders, Zhang Tianran and Sun Huiming (孫慧明). Former KMT Chair, Wu Boxion, helped pass the Yiguandao organization’s message to former CCP Chair and PRC President Hu Jintao (胡錦濤) with the suggestion of legalizing Yiguandao in mainland China on 26 May 2008. [p245]
At hearing after discussing the foregoing country information I put to the applicant that on returning to China he would be able to practice Yi Kuan Tao at home with his family. He responded that he had been in Australia for 13 years and loves the country and wants to contribute.
In sum, I cannot discount the possibility that as the applicant claims, the parents were fined in about [year] (ie the last year of his secondary schooling) and the family hall for Buddha worship shut down; and in 2015 on returning from another province they were detained and fined for preaching, and the authorities keep an eye on them. Nonetheless, the parents were fined in [year] when the applicant was a young school student some [number] years in the past. The last occurrence is years in the past and did not involve the applicant and the parents/family have continued for years to practice their religion at home in the way they wish. I do not accept the applicant has been blacklisted in the past in China.
In sum, I have considered the applicant’s documents and evidence including his evidence at hearing, the evidence of his witness that mirrored the witness written statement, and the other written statements. Despite the applicant first attending the [Temple 1]/monastery in early 2016 and then promptly applying for a Protection visa, I accept that since then he continued to attend the temple/monastery, listen to preaching, and socialise. I accept that he practices Yi Kuan Tao. In light of the evidence and the foregoing country information, I consider that on returning to his home village, the applicant would be able to continue his practice of Yi Kuan Tao. The applicant does not claim that he would seek to preach Tao in China. As he states, his religious practice is no different to how he would practise Buddhism. As discussed at hearing, DFAT assesses that as Buddhism and Daoism are part of China’s cultural heritage and are not associated with foreign influence, believers are unlikely to experience significant restrictions. And as the foregoing authoritative source discusses, Yi Kuan Tao is no longer categorised as an evil cult and in recent years has shifted “its status in China from ‘red zone’ to ‘gray zone’, to borrow Yang Fenggang’s concept.”
I accept that in China he would be unable to attend and socialise at the [Temple 1]/monastery and in China he may be unable to locate a temple in his home area. However, as discussed at hearing, the inability to attend and socialise at a particular venue does not constitute persecution or significant harm.
After considering the documents and information before the Tribunal, including the applicant’s and his witness’ evidence at hearing, I do not accept that his Buddhist/Yi KuanTao beliefs and practice of Buddhism and Yi Kuan Tao would cause the Chinese authorities to have an adverse interest in him now and in the reasonably foreseeable future. I do not accept that his family’s Buddhist/Yi KuanTao beliefs and practice of Buddhism and Yi Kuan Tao would cause the Chinese authorities to have an adverse interest in him now and in the reasonably foreseeable future. I find that in Fujian there is not a real chance the applicant would face serious harm amounting to persecution, and not a real risk the applicant would suffer significant harm, because of his and/or his family’s religion and religious practice, now and in the reasonably foreseeable future.
I find that in Fujian there is not a real chance the applicant would face serious harm amounting to persecution, and not a real risk the applicant would suffer significant harm, arising from his family’s past use of a loan shark.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant faces a real chance of serious harm amounting to persecution, due to his time, activities and return as a failed asylum seeker in Australia, religion, his parents’ religion and activities, or any similar reason (such as imputed political opinion, or membership of any putative particular social group), from any sources, when considered singly or cumulatively, if he returns to China. The Tribunal is therefore not satisfied that should he return to China he has a well-founded fear of persecution for one of the reasons enumerated in s.5J(1). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). For the reasons given above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China there would be a real risk that he will suffer significant harm. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant 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, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
C. Packer
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.
…

[2021] AATA 2383

14 May 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction