1712725 (Refugee)

1712725 (Refugee) [2021] AATA 437 (20 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1712725

COUNTRY OF REFERENCE: China
MEMBER:Frank Russo
DATE:20 January 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 January 2021 at 3:35pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Christianity – claim withdrawn – father’s application for refugee status in another country – vague and unconvincing evidence – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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 17 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 22 October 2015. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant is a person in respect of whom Australia has protection obligations.
The applicant was assisted in relation to the review by his registered migration agent.
On December 2020, in accordance with measures introduced in response to the COVID-19 pandemic, the Tribunal invited the applicant to attend a hearing by way of video conference on 18 January 2021. The invitation was sent to the email address for the immigration agent that was provided with the application for review.
On 19 November 2020 the Tribunal received an email response from [a migration service provider], which indicated the agent no longer worked for this company and the company was no longer representing the applicant.
On 23 and 26 November 2020 the Tribunal contacted the agent at her new company to enquire whether she continued to represent the applicant. The applicant confirmed that she remained the applicant’s representative.
On 26 November 2020 the Tribunal sent an updated invitation to attend a hearing by way of video conference o 14 December 2020, to the agent’s new address. On 29 November 2020 the applicant’s agent requested a postponement of the hearing date. The Tribunal agreed to this request.
On 2 December 2020 the applicant was invited to attend a hearing by way of video conference on 18 January 2020.
The applicant appeared before the Tribunal by video conference on 18 January 2020. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant’s agent also attended the hearing by video conference.
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
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J in China and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that they will suffer significant harm.
The applicant provided with his application for review, a copy of the decision of the delegate and notice of this decision from the Department, as well as a copy of his passport. The applicant provided a response to the hearing invitation, but has otherwise not provided the Tribunal with any other documents in support of his application.
The Tribunal also has a copy of the Department file and has had regard to the documents on that file. The Tribunal, in reaching its decision, has taken into account all of the evidence before it. It has also taken into account independent country information about China.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity
The applicant provided a copy of his Chinese passport to the Department, as well as to the Tribunal. On the basis of this information, and without any information to the contrary, the Tribunal accepts that the applicant is who he claims to be, that he is a national of China, which is also his receiving country.
The applicant claimed at the hearing that he did not have a right to enter and reside in any third country. On the basis of the information before the Tribunal I accept this claim and find that the applicant does not have a right to enter and reside in any third country.
Claims
Claims made with visa application
In a statement attached to his Protection visa application, the applicant makes the following claims:
a.That he was born in [Town 1], Fuqing, Fujian and raised by his grandparents while his parents worked in other cities. This resulted in relatively weak relationships with his parents, especially his father, and when he was little, on more than one occasion his father assaulted the applicant and his mother while he was drunk;
b.The applicant has not seen his father [since] 2004;
c.The applicant arrived in Australia holding a Student visa [in] December 2007, and after his arrival he was told that his father had been [overseas] for several years and been granted permanent residency in [Country 1];
d.The applicant ‘renewed’ his Student visa in February 2008 and continued his studies, but dropped out after year 11 high school as he had heard the college he was enrolled in, [College 1], had some problems. This college subsequently closed at the end of November 2009 without notifying its students. The applicant stated that his situation was better than that of other students as he had not wasted money on course fees as his Student visa had been cancelled;
e.In 2009 the applicant’s mother told him that she and the applicant’s sister were relocating to [Country 1] as the applicant’s father had been granted a refugee visa;
f.The applicant’s father became a heavy alcoholic in [Country 1] and would beat the applicant’s mother and sister when he got drunk. They lived separately from the applicant’s father as he had a long-term relationship ‘with other women’. The applicant stated that since then he has never had any contact with his father and hates to hear his voice. He stated that he seldom calls his mother and sister;
g.In September 2010 the applicant returned to China to visit his elderly grandmother because he missed her. He stated that he stayed in China about one-and-a-half months, but instead of staying in his home village, mainly travelled to other areas for tourism purposes. He stated that during this period his father tried to contact him about obtaining a visa to [Country 1], but the applicant refused. He stated that he was not upset when his mother told him it might be impossible for him to migrate to [Country 1];
h.In mid-2010 the applicant asked an agent to help him renew his Student visa. He stated that he did not know the specific circumstances, but believed his visa may have been ‘automatically terminated’ [in] March 2011;
i.The applicant stated that between the closing down of [College 1] and his application for the Protection visa, if he had time he would ‘go and visit the church’. In addition, during this time he was working; and
j.There are two reasons why he has applied for the Protection visa, namely that he might be persecuted on the basis of his religious beliefs, and he is concerned that he is at risk because he is a family member of a ‘former [Country 1] refugee visa applicant’.
Departmental interview and delegate’s decision record
The applicant attended an interview with the Department on 1 May 2017. The delegate’s decision record indicates that at the interview the applicant made the following additions and amendments to his written claims:
a.The applicant fears returning to China as he does not know what might happen to him in China;
b.His fear is based on his father, mother and sister having gained protection visas in [Country 1] in 2007 and 2009, respectively;
c.The applicant has no knowledge of why his family were granted protection in [Country 1], nor any details of why he was refused protection in [Country 1];
d.He has been concerned about returning to China since June/July 2011, when he heard from his grandmother that his father had done something to cause a man to pursue his father in China, but he was unsure of further details;
e.He attends ‘[Suburb 1] church’ when a friend of his is available. He is a recent joiner of this faith and commenced attending in 2011; and
f.He gave evidence that he has not read the Bible, that he was unsure of what Christianity means to him or what elements of Christianity he is fond of.
The applicant stated at the interview that he was not sure what might happen to him should he return to China, because his father, mother and sister were granted protection in [Country 1]. When asked what he feared, he was unable to provide details other than referencing his family fleeing to [Country 1]. He was unclear of the nature of his family’s protection claims, and explained this is because his mother and sister are uneducated and he has a strained relationship with his father.
The applicant stated that he was an applicant for refugee status in [Country 1] in 2010, though he was unclear of the details of the claim or the reasons for the refusal, as his father arranged everything on his behalf.
The delegate found the applicant’s testimony regarding his claimed fear of returning to China, and his previous claims for refugee status in [Country 1], to be vague and unconvincing. The delegate did not accept as credible that the applicant would fail to raise the matter of his protection claim with his mother and sister, given his claim that he speaks to them monthly and he is seeking protection for reasons relating to his family’s circumstances which resulted in their refugee status being recognised in another country.
The delegate raised the applicant’s return to China in 2010, which was subsequent to his father being recognised as a refugee in [Country 1] in 2007, as well as his mother and sister being recognised in 2009, and that he willingly returned to China and was able to leave without incident.
The applicant did not raise his religious claims as outlined in his written statement until prompted. He stated that his church attendance is dependant on the availability of a friend, as they attend the church together. He stated that he has not read the Bible and could not articulate a favourite or memorable part of Christian teachings. The delegate found the applicant’s responses to questions regarding his religious faith were vague and very lacking in detail. The delegate did not accept as credible the applicant’s claim that he is a genuine follower of the Christian faith.
The delegate did not accept that the applicant holds a genuine fear of returning to China and did not accept as credible that the applicant is at risk of harm if he were to return to China.
Evidence at the hearing regarding preparation and contents of application
At the hearing the applicant gave evidence that he made the application himself, was aware of the contents of the application and that its contents are true and correct. He confirmed that he did not wish to make any changes to his application form or add to the claims which he had made.
Evidence regarding the applicant’s background
The applicant gave evidence that immediately before coming to Australia he lived in [Village 1 in] [Town 1], Fuqing City, Fujian Province. He confirmed that he lived in his childhood home, which was also his hukou, and that he has not lived at any other addresses in China.
The applicant gave evidence that his parents and sister live in [Country 1] and they all live at the same address. The applicant’s grandmother continues to live in [Village 1], [Town 1].
The applicant stated that at the time he left China, he was enrolled in year [level] but only studied it for a few months and did not complete it. He worked for one or two months as [an Occupation 1] in a [business] during a summer holiday, but otherwise had not been employed in China.
The applicant stated that he first arrived in Australia [in] December 2007, and that he travelled by plane through [a named] Airport, using his own passport.
The applicant stated that he came to Australia for the purpose of studying. When asked what type of visa he had travelled on, he stated that he could not remember. When asked whether he had travelled on a Student visa, he confirmed this was the case. He stated that he did not know who organised the visa, as his family helped him with it and he just came to Australia.
The applicant told the Tribunal that he did not have a plan to learn a specific course. When asked if he was enrolled in high school in Australia, he stated that he was enrolled at [College 1], where he did a language course for half a year and then entered year [level]. When asked whether he completed any courses of study, the applicant stated no, and stated that this was because he studied for a period of time at [College 1], but the college then closed down. When asked whether he obtained a certificate for the English course he had been enrolled in, he stated that he did not remember, then stated that he probably should have gotten the certificate, but does not remember what he did with it. He stated that [College 1] closed around the end of November 2009, and that he had been enrolled in year [level] at the college for only one or two months before it closed.
When asked what he did after the closure of [College 1], the applicant stated that he just worked, because he had to live on his own. He stated that he did not recommence studying again after this, though when asked if he enrolled in any other courses, he stated that in 2010 he enrolled in another school and studied there for a period of time, but he did not remember the name of the school. When asked whether he was enrolled in high school or a certificate course, he stated that he was not quite sure because he did not study there for long.
When asked whether he held another visa after this, the applicant stated no. He confirmed that he remained in Australia and worked while not holding a valid visa. When asked whether he knew how many Student visas he had been granted, he stated that he did not remember. He stated that he lives alone, rents a house in [Suburb 2] and has been working as [an Occupation 2] for around 7 to 8 years.
Applicant’s claims for protection
The Tribunal noted that the applicant’s claims in his application were that he has family members who had claimed refugee status in [Country 1], and if he were to remain in China he might encounter numerous unpredictable risks, and also that he might be persecuted because of his religious beliefs. The applicant confirmed this was correct and that he had no additional claims for protection.
The Tribunal noted that at the interview with the Department, the applicant claimed that his father had done something in China which caused a man to pursue him. When this was put to the applicant at the hearing, he did not acknowledge it as a claim that he was making, and instead stated that he believed his father had applied for refugee status in [Country 1] on the basis of his religion. He stated that there was a change in policy at the time, which meant that his father was able to be granted the visa.
When asked what he knew about his family’s applications for refugee status in [Country 1], the applicant stated that he does not know the details because he does not have much contact with his father, although his mother told him that they had applied for reasons to do with their religion, but he stated that he did not know the reasons why. Later in the hearing he stated that an amnesty had been granted to people who applied for visas in the year his father applied. He stated that he did not know the details of his father’s application and only knew some information from his mother.
When questioned whether an application for refugee status in [Country 1] had been made on his behalf, he stated that his father went to [Country 1] alone to make the application, and that his mother and sister went to [Country 1] later and they had made an application for ‘family gathering’. When asked whether his mother and sister were recognised as refugees in [Country 1] or whether they were able to live there as part of a family reunion policy, the applicant stated that he was not quite clear about this. He stated that he did not know whether they were able to live there because his father was there, and stated that he did not ask them about this. When asked again whether an application was made on his behalf so he could live in [Country 1], the applicant stated no, as he did not want to go there because his relationship with his father is not good and in the past they would quarrel every day.

As for his religious beliefs, the Tribunal asked the applicant what religion he identifies with or believes in. The applicant responded, ‘I didn’t go to the church later on’, and this translation was confirmed by the translator. The Tribunal then sought to clarify the extent to which the applicant had attended a church. He told the Tribunal that he went to a church for the first time in 2011 and that he went there for two to three months, after which he did not go there again. The applicant stated that at first he went there, but then he found he did not have any interest in going, so he did not attend anymore.
The applicant confirmed that he was raised without any religion and his family members did not have any religious beliefs. He then stated that at the time he was quite young, so he is not sure, but then again stated that his family had no religious beliefs. He confirmed that he had never attended a church or temple in China.
As to his church attendance in 2011, the applicant stated that he attended a church in [Suburb 1] called [Church 1], but when asked what denomination this church was, he stated that he was not clear about this because he just went a few times. When asked why he attended the church in [Suburb 1], he stated that at first he thought it might be interesting and that he went with a friend called [Friend A], who had told him about the church. The applicant stated that he attended the church, but found that it wasn’t interesting, so he did not continue attending. He stated that he stopped attending around early 2012, and that he attended only four or five times, sometimes attending only once a fortnight.
The applicant confirmed that he has not attended any other churches in Australia since then and that he does not consider himself to be an adherent of any religion. He confirmed that he has not read the Bible, stating that this was because he only went to the church a few times. When asked whether he knew any particular stories from the Bible, he stated that he forgot. When asked what Christians believe in, he stated that he did not know. The applicant confirmed that he has not been baptised, does not pray, go to church or practice any religion. He confirmed that he had no letters of support from members of the church community he previously attended.
As to the reasons why he fears returning to China, the applicant stated it is because his father applied for refugee status in [Country 1], and that he was afraid that if he went back to China there might be a problem. When questioned about the basis for believing there might be a problem, he stated that one of their neighbours went to [Country 1] with his father and then returned to China. He stated that his grandmother told him that the police went to the neighbour’s house, which was 50 to 100 metres from where they lived, but he did not know what this was for. He stated that he did not know too much about this, because it was his grandmother who told him, and that when the police could not find the neighbour, they went and asked his grandmother whether they knew the whereabouts of the neighbour. When asked whether he knew if the neighbour had applied for a particular kind of visa in [Country 1], the applicant responded ‘Yes, should be’, because the man went to [Country 1] with his father. When questioned when this event occurred, he stated that it was roughly two to three years ago, and that he could not remember clearly.
When questioned why this would be a source of fear for him to return to China, the applicant responded that it is the same situation for him as that of the neighbour. He stated it was because he did not know why the police went to look for the neighbour when he returned to China.
The Tribunal put to the applicant that his claimed fear appeared to be based on speculation, and that on his evidence it was unclear whether his father was granted refugee status in [Country 1] or was granted permanent residency through an amnesty which involved him being granted another kind of visa. The Tribunal noted that it was also unclear what visa applications their neighbour in China had made or why the police wished to speak to him. The Tribunal asked the applicant whether he had any other information to support these claims or any supporting documents. The applicant responded that he did not know what to say. He confirmed that he had no other information to provide.
The Tribunal questioned the applicant whether on the basis of his evidence that he does not practice any religion, he was no longer claiming fear of returning to China on the basis of any religious beliefs. The applicant confirmed that this was the case. The applicant also confirmed that the only grounds on which he fears returning to China is on the basis of his father’s application for refugee status in [Country 1], which as a family member, he believes might result in him being persecuted if he returns to China.
When questioned about what harm he fears would occur if he were to return to China, the applicant responded that he did not know because he did not go back to China, so he does not know what would happen.
When questioned whether anything happened to the neighbour who returned to China from [Country 1], the applicant responded that he did not know. He stated that he just heard that the police went to look for him but were unable to find him, so the police then went to his grandmother to ask her some questions, and then they went away. When questioned whether it was the local police who were looking for him, the applicant responded yes. When questioned if the neighbour had returned to [Country 1], the applicant stated that he had.
When questioned who he fears would inflict harm if he returned to China, the applicant did not answer directly and instead stated that it would probably relate to his father’s visa. When the Tribunal asked the applicant this question a second time he responded that he is just afraid that his father’s visa might cause some problems for him and ‘they’ would come and question him. When asked whether he feared anything else would happened other than he would be questioned, he responded ‘Just that.’
The applicant confirmed that there were no other events which occurred in China which would cause him to fear persecution. He stated that there was no other reason why he does not want to return to China. He confirmed that there were no other matters which he wished to tell the Tribunal about his religious practice or anything else. In response to a separate question he confirmed that there are no other reasons or basis on which he believes he will be harmed if he returns to China.
As to whether he could relocate to other parts of China, the applicant stated that he has never been to other places and is unfamiliar with them, so he does not know where he could go.
Following a short adjournment, the applicant told the Tribunal that the church in [Suburb 1] that he attended was called [Church 1], but the church has now closed permanently. He also stated that in terms of supporting documents about his father’s ‘problem’ and his permanent residency in [Country 1], it is not that he does not want to provide any documents, but that he can’t obtain any. He stated that when his father obtained permanent residency in [Country 1], he wanted his family to join him there, but the applicant did not want to go and his father was quite angry about this. He stated that if he wanted to get documents from his father, his father would not provide them, and that all of the information he has obtained has been from his mother, and that he does not know all the details.
When questioned when he first started to fear that there might be a problem if he returned to China, the applicant stated the first time was when the police went to look for the neighbour who had returned to China. The applicant confirmed that this event had occurred in roughly 2016 or 2017. The Tribunal noted that the applicant’s Protection claim had been made in 2015, and therefore questioned the basis of his fear at the time he made the visa application. He responded that his father applied for refugee status quite a long time ago, so he also applied for refugee status, and then he became aware of the incident.
The Tribunal noted the applicant returned to China in 2010, which he confirmed was the case. When asked where he went during this trip, he stated just to his village. When asked whether he travelled anywhere else, he responded no, and he confirmed that he stayed with his grandmother. The Tribunal questioned whether he did not fear that something might happen to him, given his father had already been granted permanent residency in [Country 1]. The applicant responded that at the time he was quite young, so he didn’t fear things, and at the time he went to visit his grandparents as his grandfather was not healthy.
Country information
The Tribunal discussed with the applicant relevant information from the most recent DFAT Country Information Report for China[1] in particular that regarding conditions of returnees, entry and exit procedures and Christianity:
[1] DFAT Country Information Report People’s Republic of China 3 October 2019.
Conditions for Returnees
5.44 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. DFAT is unable to verify whether having sought asylum abroad would worsen the situation of individuals attracting adverse attention from authorities for other reasons. Chinese authorities are likely, however, to be aware of the behaviour of Chinese asylum seekers while they are outside of China (see Security situation). Party members or public officials who return to China to face corruption offences are subject to Party disciplinary measures and potentially criminal prosecution …
The Tribunal indicated that what it might infer from this information is that there is no information to suggest that authorities in China target individuals who have sought asylum overseas if they have not otherwise come to adverse attention, and there is no information in the report to indicate that family members of asylum seekers would be of interest to the authorities. The applicant indicated that he did not have any response to this information.
Exit and Entry Procedures
5.40 Chinese law provides for foreign travel, emigration, and repatriation. A number of agencies within the Ministry of Public Security hold responsibility for monitoring entry and exit procedures at airports, including the Public Security Bureau, the Entry and Exit Authority, and the Frontiers Inspection Bureau. China’s major airports have a centralised system with name matching alert capabilities. Facial recognition technology is also widely deployed at all international checkpoints (air, land and sea). Security monitoring capabilities at airports are comprehensive, and departing passengers pass through several identity checks (including passport and ticket/boarding pass inspection) run by different agencies between arriving at the airport and boarding a flight. The government maintains an immigration exit control list.
The Tribunal indicated that what it might infer from this information is that security monitoring at China’s major airports is comprehensive, that passengers go through several identity checks and the government maintains an exit control list of persons who are of interest to authorities, and it is unlikely that someone of interest to the authorities would be able to leave China on their own passport through a major airport without attracting adverse attention. The applicant indicated that he had no response to this information.
The Tribunal summarised the following country information regarding religion:[2]
[2] DFAT Country Information Report, People’s Republic of China, 3 October 2019.
RELIGION
3.30. It is difficult to provide exact figures on the number of religious believers in China. In 2018, the government released a white paper on China’s Policies and Practices on Protecting Freedom of Religious Belief (CPPPFRB white paper). This states the major religions practiced in China are Buddhism, Taoism, Islam, Catholicism and Protestantism, and religious believers total almost 200 million …
Government framework regarding religion
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).
3.38. Article 36 of the Constitution states that citizens enjoy freedom of religious belief, and that no state organ, public organisation or individual may compel citizens to believe in, or not believe in, any religion. Discrimination on the basis of religion is prohibited by law. According to China’s 2018 CPPPFRB white paper, every citizen ‘enjoys the freedom to choose whether to believe in a religion; to believe in a certain religion or a denomination of the same religion; to change from a non-believer to a believer and vice versa. Believers and non-believers enjoy the same political, economic, social and cultural rights, and must not be treated differently because of a difference in belief.’ However, Article 36 of the Constitution also states that no one may make use of religion to engage in activities that disrupt public order, impair the health of citizens or interfere with the educational system of the State.
The Tribunal summarised and discussed further information with the applicant about Christianity in China:
Christians
3.76.    China has seen a significant growth in Christianity since the 1980s. In 2010, the Pew Research Center estimated there were 67 million Christians in China (58 million Protestant, including both state-sanctioned and independent churches). However, 2018 estimates had grown closer to 100 million (unregistered churchgoers outnumber members of official churches nearly two to one).
3.77.    In addition to state-sanctioned Catholic and (non-denominational) Protestant churches in China, SARA historically permitted friends and family to hold small, informal prayer meetings without official registration. This, combined with the controlled nature of religious worship amongst registered Christian institutions, has led to the proliferation of sizeable unregistered Christian communities in both rural and urban China. Independent churches, otherwise known as ‘house’ or ‘family’ churches (for Protestant organisations), and ‘underground’ churches (for Catholic organisations) are private religious forums that adherents create in their own homes or other places of worship. ‘House’ or ‘underground’ churches vary in size from around 30 to several thousand participants/attendees.
…
3.79.    Leaders of both registered and unregistered churches are also subject to greater scrutiny than ordinary worshippers are, and leaders of registered churches must obtain permission to travel abroad. Church leaders (registered or unregistered) who participate in protest activity on behalf of their congregations or elsewhere are at high risk of official sanction, but this is likely to relate more to their activism than to their religious affiliation or practice …
The Tribunal noted that the applicant was no longer claiming a fear of persecution on the basis of religious beliefs, but indicated that from this information it may infer that, if the applicant were to attend a Christian church on return to China, it would be possible for him to practice Christianity either in one of the state-sanctioned churches or a small unregistered church in a manner similar to his attendance at the church in [Suburb 1] in 2011, without attracting adverse attention from authorities. The applicant stated that he had no response to this information.
Concerns raised with applicant
Besides the concerns which were put to the applicant in the course of his evidence, which are summarised above, towards the end of the hearing the Tribunal put to the applicant a number of concerns regarding his evidence and claims to protection and gave him an opportunity to comment or respond to each as a matter of procedural fairness.
The Tribunal noted the applicant was no longer claiming protection on the basis of his religious beliefs, but indicated that on the basis of the evidence and information before it, there was no credible evidence that the applicant is a Christian or that he fears returning to China on the basis of his religion. The Tribunal also raised that there was insufficient evidence to suggest that the applicant would seek to attend a church if he returned to China and there was no evidence that any of his activities when he attended church in Australia in 2011 would be of any interest to authorities in China. The Tribunal also raised that the country information indicates that if he were to attend a church in China and worship in a manner similar to his attendance at the [Suburb 1] church, that he could do so at a registered state-sanctioned church or a small unregistered church, with the chance of him coming to harm or being noticed by authorities being very remote. The applicant declined to comment in relation to each of these concerns when they were put to him separately.
In regards to his claims regarding his father’s claim for refugee status in [Country 1], the Tribunal raised concerns that the applicant’s evidence was vague and unconvincing, and noted that the same concerns had been raised by the delegate in May 2017. The Tribunal noted it was unclear from the applicant’s evidence whether his father had been granted protection in [Country 1] or had been granted permanent residency on some other basis. The Tribunal raised concern that the applicant had little information regarding the basis of any claim for refugee status made by his father and the inconsistencies in the applicant’s claims at the hearing and Departmental interview about when he first feared returning to China and his reasons for this fear. The applicant responded that he really cannot get the information from his father, and in terms of the inconsistency regarding his claimed fear, stated that in 2011 he was aware that his father had made the refugee status application, but the event which involved his neighbour occurred in 2016 or 2017, and that he knew the police went to question his neighbour. When questioned why this incident with the neighbour was not raised at the interview with the Department, the applicant responded that it was probably because it happened after the interview with the Department.
The Tribunal noted the applicant had returned to China in 2010, after his father is claimed to have been granted refugee status in [Country 1]. The Tribunal raised concern that based on the country information discussed with him, this suggests the applicant is of little interest to the authorities and would be able to return to China again without attracting adverse attention. The applicant responded that since then the incident occurred with his neighbour, and that although his neighbour returned to [Country 1], he does not know by what method. He indicated that although nothing happened to him when he returned to China in 2010, he did not know what would happen if he were to return in the future.
The Tribunal noted the applicant’s grandmother continues to live in his hometown in Fujian. The applicant confirmed that this is his grandmother from his father’s side of the family. The Tribunal questioned why the applicant would be of interest to authorities in China, if his grandmother has not been questioned about her son’s claim for refugee status in [Country 1]. The applicant responded this is because his grandmother is just an old lady and she does not have any problem.

The Tribunal again raised concern that based on the country information about conditions for returnees, there is little information to indicate that returnees would be targeted by Chinese authorities on the basis of a failed protection claim, and no information regarding the treatment of family members of persons who have claimed protection, and that based on this information, the fears which the applicant claims appear to be based on speculation. The applicant indicated that he had no response.
The Tribunal put to the applicant that, based on the evidence as a whole, he appeared to have arrived in Australia as a student in 2007, and that this did not work out, and after 2011 he remained in Australia unlawfully and may therefore have had limited options to apply for other visas, and has now made the Protection visa application not for the reasons claimed, but to prolong his stay in Australia. The applicant indicated that he had no response.
The applicant again confirmed that he had no further information to provide to the Tribunal and no other basis on which to claim protection.
The applicant’s agent indicated that there were no oral submissions.
FINDINGS AND REASONS
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant him or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for her or him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.
On the other hand, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, 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 established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
The applicant told the Tribunal that all of the information he had provided as part of his Protection visa application form is true and correct, and stated that he prepared his application himself. The applicant appeared to have no issues communicating with the Tribunal by video conference or in using the interpreter, and no such issues were raised.
In the present case the applicant claims that he fears returning to China on the basis of his father’s claim for refugee status in [Country 1] and his concern that he may encounter risks if he were to return to China. In addition, in his visa application he claimed fear of persecution based on his religious beliefs. Although at the hearing the applicant indicated that he no longer attends a church and therefore agreed that he no longer has a fear of persecution on this basis, to ensure all of the applicant’s claims are addressed, the Tribunal has nevertheless considered the applicant’s claims regarding his religious beliefs.
Claims regarding Christian activities in Australia and Christian faith
The applicant claims that he attended a Christian church in [Suburb 1] in 2011 on four of five occasions over a period of two to three months, and that he last attended this church in early 2012. He claims that he attended with his friend, [Friend A]. He claims that the church is now closed and that he has not attended any other churches in Australia, nor has he attended a church in China. He was unable to say what denomination the church in [Suburb 1] was. The Tribunal notes that at the interview with the Department, the applicant claimed that he commenced attending the [Suburb 1] church in 2011 and continued to attend the church when his friend was available (this was as at 1 May 2017). Notwithstanding this inconsistency, on the basis of his admission of limited attendance at the [Suburb 1] church, the Tribunal is willing to accept that the applicant attended the [Church 1] in [Suburb 1] on four to five occasions from 2011 to early 2012.
Based on the evidence provided by the applicant regarding his religious practice from 2011-2012 and his understanding of Christianity, the Tribunal finds that the applicant is not a genuine Christian. The applicant confirmed in his evidence that he has not been baptised, he has not read the Bible, nor could he remember any stories from the Bible. He was unable to tell the Tribunal what a Christian believes in. He confirmed that he does not currently pray or practice any religion, nor was he raised with any religion. He stated that he stopped attending the [Suburb 1] church in 2012 because he did not find it interesting. The Tribunal found the applicant’s responses and evidence about why he attended the church in [Suburb 1] and about his Christian practice to be vague, general and lacking in any convincing and authentic detail. He has provided no evidence of support for his claims, such as letters of support from pastors or parishioners. He confirmed that he does not consider himself to be a Christian or an adherent of any particular religion. In any case, when asked if his claimed fear of persecution on the basis of his religious beliefs is no longer relevant because he does not identify as a Christian, he indicated that this was the case. Accordingly, the Tribunal finds that the applicant is not a Christian or an adherent of any other religion.
Claims regarding his father’s refugee status in [Country 1]
The applicant claims that he has not seen his father since 2014 and he learned from his mother that his father went to [Country 1], and that in 2007 he was granted permanent residency in that country. He claims that his father applied for refugee status in [Country 1] and that in the year he applied there was a change in policy which meant that all of the people who applied were granted an amnesty. He claims that he learned from his mother that his father claimed refugee status on the basis of his religious beliefs, but claims that he is unable to provide any other information about this. He claims that his mother and sister have now joined his father in [Country 1], but he is unsure of the basis on which they were able to do so, and stated that it may have been possible through a family reunion policy, rather than because they also satisfied the requirements for recognition as refugees.
In his interview with the Department, the applicant claimed that he has had a fear of returning to China on this basis since June/July 2011, when he heard from his grandmother that his father had done something to cause a man in China to pursue him, but he was unsure of any further details. When this was put to the applicant at the hearing, he did not acknowledge it as a basis for his claimed fear of persecution, and instead stated that he believed his father had claimed refugee status on the basis of his religious beliefs. The applicant was asked on at least two occasions whether he had any other claims or any other basis for claiming protection, and on both occasions indicated that he did not. The Tribunal therefore does not accept that there is any basis for a claim for protection on the basis that the applicant’s father was being pursued by a man in China, and the Tribunal does not consider this matter further.
At the hearing the applicant claimed that he made the Protection visa application in 2015 because his father had claimed refugee status in [Country 1], but the basis of his fear of returning to China is the incident which he claims occurred in either 2016 or 2017, where a neighbour from his hometown returned to China and was sought by the police for questioning. When questioned why he had not raised this at the interview with the Department on 1 May 2017, the applicant responded that it is probably because the event occurred after the interview. He confirmed that no other incidents occurred in China and that he has not been subjected to any persecution in China.
The applicant has not provided any supporting evidence regarding his claim that his parents and sister live in [Country 1] or that his father claimed refugee status and was granted permanent residency in [Country 1] through an amnesty or otherwise. He claimed that he is unable to obtain any supporting evidence as he does not speak to his father. The Tribunal accepts that the applicant is from Fujian, China and accepts that the applicant’s grandmother continues to live in his hometown. The Tribunal is prepared to accept that the applicant’s parents and sister live in [Country 1]. However, the Tribunal found the applicant’s claims regarding his father’s claim for refugee status in [Country 1] to be vague and unconvincing. When questioned about the basis for his father being granted refugee status, the applicant claimed that there had been a change in policy and that persons who applied that year were granted amnesty. When questioned whether his father was granted refugee status or some other visa, the applicant was unsure and indicated that he was unable to obtain the information. The applicant however gave evidence at the interview that he speaks to his mother and sister on a monthly basis and has a functional relationship with them, and he confirmed at the hearing that his parents continue to live together.
I do not accept the applicant’s reasons for being unable to obtain further information about his father’s refugee status as credible, given the very basis of his claim for protection relates to his father’s refugee claims. The Tribunal put to the applicant that similar concerns were raised by the delegate in the delegate’s reasons for decision. The applicant has now had a further two-and-a-half years to obtain relevant information about his father’s refugee claims, yet he has again provided very vague claims which are unsupported by any evidence. The Tribunal has considered the applicant’s claims regarding his lack of communication with his father, but does not consider these to be a sufficient reason for his vague claims and lack of supporting evidence.
As noted above, the Tribunal raised with the applicant inconsistency in his claims regarding why his father’s refugee claim is a source of fear for returning to China, as well as inconsistency in the time when he claims he first had this fear. At the interview with the Department, the applicant stated that he has been concerned about returning to China since June/July 2011, when his grandmother told him that his father had done something to cause a man to pursue him in China. Whereas at the hearing the applicant stated that he first feared returning to China in 2016 or 2017, when his grandmother told him about the incident involving the police looking for a neighbour who had returned to China, and who had travelled to [Country 1] with his father. When this inconsistency was put to the applicant, he responded that in 2011 he was aware that his father had made the refugee application, but the event occurred in 2016 or 2017 and he knew that the police when to question this neighbour.
The Tribunal does not accept the applicant’s explanation of this inconsistency. If the Tribunal were to accept this explanation, the basis of the applicant’s October 2015 claim for protection appears to be merely on the basis that his father had also claimed refugee status, and that there were no events or other circumstances which occurred or which were the basis for his claimed fear of persecution until, after his Protection claim was made, and possibly until after the interview with the Department.
The Tribunal does not find that the applicant provided a convincing level of detail regarding the claimed event involving his neighbour in 2016 or 2017. The applicant was vague as to when this incident occurred. He was unable to provide any convincing information about what visa, if any, his neighbour may have held in [Country 1], and when asked whether the neighbour held a particular visa, he responded ‘Yes, should be,’ on the basis that the man had gone to [Country 1] with his father. The applicant stated that he did not know why the local police had gone to look for the neighbour. On his own evidence, the neighbour was able to return to [Country 1]. He stated that he did not know by what method the neighbour left China, and the Tribunal notes that this comment was volunteered by the applicant after the Tribunal raised country information which indicates that the Chinese government maintains an immigration exit control list. The Tribunal finds the applicant’s claims about his neighbour being wanted for questioning by the police to be vague and unconvincing, and the Tribunal considers there is insufficient evidence for a finding that this event occurred or that the neighbour was wanted for questioning by the police, or of how the neighbour was able to depart China without incident if he was wanted in relation to a migration-related matter.
Does the applicant have a well-founded fear of persecution if he returns to China?
As noted above, the Tribunal finds that the applicant is not a genuine Christian and is not an adherent of any other religion. When this was put to the applicant at the hearing, he confirmed that his claimed fear of persecution on the basis of his religion is no longer relevant to his circumstances, and that he does not regard himself to be a Christian.
Given the finding that he is not a genuine Christian, the Tribunal is satisfied that the applicant will not practice Christianity on return to China, and will not attract adverse attention from local authorities for this reason. This is particularly the case given the applicant’s evidence that he was not raised with any religious beliefs, he has no past history or association with religion or services in China, and he stopped attending the [Suburb 1] church in Sydney because he no longer found it interesting. The applicant did not claim, and nor does the Tribunal accept that, the authorities in China would have any awareness of the applicant’s limited church attendance on four or five occasions in 2011-2012.
The Tribunal finds that even if the applicant were to attend a church in China out of interest, given the manner of his engagement with religion in Australia, and with no previous church attendance in China, the Tribunal is not satisfied that his attendance, whether at a registered or unregistered church, would attract adverse attention from authorities. The applicant demonstrated no understanding at the hearing of what it means to be a Christian or of different Christian denominations or churches, and there is nothing to indicate that the applicant would have any objections in attending a registered church in China because of any political or religious values. The Tribunal considers that based on the country information, the applicant could attend a registered or small unregistered church in Fujian, with only a remote risk of being harmed by the authorities or anyone else.
Therefore, although the applicant no longer claims persecution on the basis of his religious beliefs, I am nevertheless satisfied that there is no real chance that the applicant will be questioned, harassed, detained or otherwise harmed by the authorities or anyone else for reasons of religion, now or in the reasonably foreseeable future.
As noted above, I am prepared to accept that the applicant’s parents and sister live in [Country 1], although no evidence has been provided in support of this claim. I find that there is insufficient evidence that the applicant’s father claimed refugee status in [Country 1] or that his father was granted an amnesty and granted permanent residency. Even if the Tribunal were to accept that the applicant’s father applied for refugee status in [Country 1] or that he was granted asylum, the latest country information report prepared by DFAT has no information to suggest that Chinese authorities target individuals solely for having sought asylum abroad if they have not otherwise come to adverse attention. The report contains no information to suggest that members of the families of asylum seekers would be targeted by Chinese authorities. The Tribunal has therefore considered both whether the applicant would be targeted because of his own Protection visa claim or because of that of his father in [Country 1], but based on the DFAT report, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution on the basis that his family has applied for refugee status overseas, or in respect of his own Protection visa application.
The Tribunal finds that the applicant’s claimed fear on this basis is based on speculation, rather than on any convincing information or events. As noted above, the applicant gave inconsistent evidence at the hearing and the Departmental interview as to the reasons for his claimed fear and the year of the onset of this fear, and the Tribunal does not accept as convincing his claims that his neighbour was wanted for questioning by police in 2016 or 2017 after returning from [Country 1]. The Tribunal considers that the applicant has now provided this additional evidence in an attempt to strengthen his claims to protection.
The Tribunal also notes that the applicant’s paternal grandmother continues to reside in his hometown, and there is no evidence that she has been the target of questioning or harassment on the basis of her familial relationship with the applicant’s father. The Tribunal does not find the applicant’s attempt to distinguish his grandmother’s situation from his own as convincing. The Tribunal notes that on the applicant’s own evidence, his grandmother was questioned by police about the whereabouts of the neighbour who had returned from [Country 1], and the Tribunal therefore does not accept the applicant’s claim that his grandmother would not be questioned by authorities because of her age. This further indicates that the applicant’s claims about the questioning he would receive are based on speculation.
Even if the Tribunal were to accept the applicant’s claims regarding his fear of returning to China on this basis, the Tribunal notes the applicant’s vague evidence regarding the nature of the persecution that he fears. As noted above, the applicant did not provide any details of persecution that he fears, other than being questioned. At other points in the hearing he was vague as to what he considered might happen if he were to return to China, stating that he did not know what might happen. The applicant confirmed that he has not experienced any persecution in China and the only incident or event he gave evidence of, was the police wishing to question his neighbour. The applicant has not provided any evidence to suggest that if he returned to China he would be subject to persecution which involves serious harm to the person and that such persecution would involve systematic and discriminatory conduct within the meaning of s.5J(4) of the Act.

The Tribunal also notes that the applicant returned to China in 2010 without incident, three years after he claims his father was granted refugee status in China. Independent information indicates that China’s major airports have a system for monitoring exits and entries. According to the most recent DFAT Report (3 October 2019), security monitoring capabilities at China’s major airports are comprehensive, and departing passengers pass through several identity checks, including passport and ticket/boarding pass inspection, run by different agencies between arriving at the airport and boarding a flight. According to this report, the Chinese government maintains an immigration exit control list.
A similar state of affairs is recorded in the earlier DFAT country information reports, issued on 21 December 2017 and 3 March 2015. According to the 2015 report, China’s major airports have a centralised system with name matching alert capabilities, and security monitoring capabilities at major airports are comprehensive. The Tribunal considers that the applicant’s ability to depart China without attracting any adverse interest, indicates that he is of no concern to authorities. The Tribunal has considered the applicant’s explanation for why he travelled to China in 2010, but nevertheless considers that his ability to enter and leave China without incident and without being questioned about his father’s whereabouts, indicates that the applicant’s father is unlikely to be of interest to Chinese authorities, and by extension the applicant is unlikely to be of interest due to having family members who have claimed protection overseas.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, I find that there is no real chance that the applicant will suffer serious harm amounting to persecution from anyone for any reason, if he returned to China, now or in the reasonably foreseeable future.

100. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.

Does Australia have protection obligations to the applicant under the complementary protection criterion?

101. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a protection visa pursuant to the complementary protection criterion.
102. Section 36(2)(aa) of the Act refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB[3] the Full Federal Court held that a ‘real risk’ test imposes the same test as the ‘real chance’ test applicable to the assessment of ‘well-founded’ fear’ in the Refugee Convention definition.
[3] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagott JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342]
103. ‘Significant harm’ is defined in the Act. 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.
104. As detailed above, I have rejected the applicant’s claims that he is a Christian, and the applicant himself conceded that he is no longer claiming protection on the basis of his religious beliefs, given he has not attended church since 2012, and only attended on four of five occasions.
105. I have also rejected the applicant’s claims that he would experience harm as a result of his father’s claim for refugee status in [Country 1], as well as any claim based on the applicant’s own Protection visa application. As noted above, the harm which the applicant claims he may experience in China is that he may be questioned by authorities about his father’s visa and that this might cause some problems. He confirmed that he did not fear anything else besides being questioned. Given the above findings of fact, the Tribunal does not accept that there would be a ‘real risk’ of the applicant experiencing such questioning, and that such a fear is not well-founded, particularly having regard to the country information about the condition of returnees, the evidence of the applicant’s return to China in 2010 and his grandmother’s continued residence in China, with no evidence that she has experienced such questioning about her son’s whereabouts or visa status. Similarly, the applicant’s claims about the harm he might experience were vague and he has not provided any evidence to suggest he would experience ‘significant harm’ as defined by the Act.
106. The applicant did not claim that he faces a risk of harm for any other reason or on any other basis on return to China, and on the information before me I find that there is not any other basis for a risk of harm to the applicant on return to Fujian, China.
107. In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to China, now or in the reasonably foreseeable future.
Conclusion
108. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
109. 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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
110. 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
111. The Tribunal affirms the decision not to grant the applicant a protection visa.
Frank Russo
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 437

20 January 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Standing