1713337 (Refugee)

[2020] AATA 991

1713337 (Refugee) [2020] AATA 991 (10 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1713337

COUNTRY OF REFERENCE:                   China

MEMBER:Cathrine Burnett-Wake

DATE:10 January 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 10 January 2020 at 5:37pm

CATCHWORDS

REFUGEE – protection visa – China – religion – Muslim – organising religious study groups – Islamic teaching and conversions – detention – torture – advocating for Chinese Muslims in Australia – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5J, 36, 65, 91R
Migration Regulations 1994, Schedule 2; r 1.12

CASES

Kopalapillai v MIMA (1998) 86 FCR 547
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

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

2. The applicants, who claim to be citizens of China, applied for the visas on 19 September 2014 and the delegate refused to grant the visas on 7 June 2017.

3. The applicants appeared before the Tribunal on 2 December 2019 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicants were represented in relation to the review by their registered migration agent, [Representative A] from [named firm] who attended the hearing.

   RELEVANT LAW

5. 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, the applicant 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.

   Refugee criterion

6. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

9. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

10. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

11. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

12. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

13. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

14. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

15. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

16. 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 a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

17. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

18. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Mandatory considerations

19. 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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Member of the same family unit

20. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include in this case, the applicant’s spouse and dependent children.

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. The issue in this case is whether the applicants have 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. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Identity

22. The applicants provided a copy of their Chinese passports to the Department. On the basis of this information and without any information to the contrary the Tribunal accepts that the applicants are who they claim to be, and are nationals of China, which is also their receiving country.

23. On the basis of the information before the Tribunal it finds that the applicants do not have a right to enter and reside in any third country.

    Claims

24. The applicants claim persecution arising from religion and imputed political opinion. The applicants attended an interview with the Department. Additionally, the applicants attended a hearing before the Tribunal and both the primary and secondary applicant gave verbal evidence. Written statements and supporting submissions from the applicants’ representative have also been provided. The verbal and written statements of the claims made can be summarised as follows:

    • The primary applicant claims he was born in Urumchi, Xinjiang province, China. He claims to be of Hui ethnicity and he and his family members, including his mother, father and siblings identity as Muslim, however, his family members who are still in China are now forced to hide their beliefs in fear of being detained and cannot openly practice their religion.
    • The secondary applicant claims she is of Han ethnicity. However, she converted to Islam in order to marry the primary applicant.
    • The primary applicant claims his profile is greatly enhanced because he travelled to [Country 1] in 2005 to learn about his faith and because he was accused of preaching about Islam in China. He claims due to his previous travel, he was accused of undertaking training with the Taliban. As a result, he claims he was detained for a 12 month period spanning 2005 and 2006 and was subjected to severe torture. The primary applicant claims that as a result he was stripped naked, beaten, electric shocked and sexually harassed. He also claims he had high beam light shone into his eyes. He claims that the severe mistreatment he suffered had a profound effect on his health and well-being. The primary applicant claims that as he came to the attention of the Chinese authorities when previously re-entering the country upon his return from [Country 1], this greatly heightens the chance he would be treated with suspicion and be subject to detention upon return from Australia.
    • The primary applicant claims he was arrested a second time in 2008, upon being accused of teaching and preaching about Islam. The primary applicant claimed he was again detained for a period of 12 months and was released in 2009. He claims there was no due process, he was unable to argue for his freedom and was informed his detention was a matter of national security. As such, he was not eligible for legal assistance. The primary applicant claims he was again subjected to severe mistreatment while detained, similar to the first time he was detained. The primary applicant claimed that upon release, he was warned that if he was caught preaching about Islam again, he would face further serious harm.
    • The primary applicant claims he held an important role in his local community in China, which required him to organise religious study groups and provide information about his faith to the wider community. He claims he would distribute learning materials that provided guidance with respect to religious worship, would speak to small groups about the teachings of the Quran and would hold group sessions where he would teach others about the teachings of Islam.
    • The primary applicant claims that as a Muslim he has a responsibility to teach others, including non-Muslims about his faith. As such, while living in China, he encouraged select members of the Han Community to convert. The primary applicant claims he also assisted in arranging religious ceremonies, including Islamic weddings. He also claims he would organise fundraising activities and encourage his religious community to assist others.
    • The primary applicant claims that through his community work, he organised Quran classes for his son and over thirty other children at the house of [Mr B] and his wife [Ms B]. It is claimed that the secondary applicant also cooked for the children who were attending classes. It was claimed the applicants, [Mr B] and [Ms B] were arrested and detained for 10 days due to their involvement in these classes. It was claimed they were only released upon payment of money.
    • The secondary applicant claimed that whilst she was detained for the 10-day period, she was subjected to severe mistreatment.
    • The applicants claim that given the severe mistreatment they faced, they felt they could not remain in China and purposely travelled to Australia with the intention of applying for protection.
    • The applicants claim in China they were monitored on an ongoing basis, which made it very difficult for them to live freely. The applicants claim they lived in constant fear that they would be detained and harmed again.
    • The applicants claim that in order to escape China, they paid money to secure passports. The primary applicant claims that after his departure from China, the authorities had come looking for him several times and that many Muslims from his local community were arrested due to their Islamic faith. He has not heard from many of them and fears they may have been detained or killed.
    • The applicants claim that since coming to Australia, they have been committed to continue practicing their faith. They claim they attend mosque approximately three to five times per week. They claim they usually attend the [named] Mosque in [named town]. They also claim on the weekend, they attend religious classes at their friends’ home. They claim there are approximately 10 people in attendance of these classes, which are conducted by an Australian man of [specified] background. They claim while the class is more for the benefit of their children’s education, the applicants also listen to the religious instruction.
    • The applicants claim they are also members of [a named Islamic organisation]. The applicants claim they have attended public events arranged by this organisation while in Australia. They claim they also encourage their children to learn more about their faith and their children attend religious classes at [a school], three nights a week after school.
    • The primary applicant claims that while in Australia, he has been distributing posters to the wider community encouraging individuals to support the plight of Muslims in China. He also claims that he has participated in fundraising to promote freedom of laws and democracy in China.
    • The primary applicant claims that he is of the belief that the Chinese government are likely aware of his activities in Australia as a practicing Muslim and activist, in supporting the plight of Muslims and the promotion of freedom of laws and democracy in China. The primary applicant claims there are several instances he believes he has been exposed to a spy network spread over all levels in Australia. He claims an individual of Chinese heritage collected information about worshipers at the mosque he attends. He claims this individual attended on several occasions and gathered names of all Chinese heritage people who worshiped at the mosque, then was not seen again. He claims he subsequently found out that this individual worked for a branch of a Chinese [business] in [Australia] and was not Muslim. The second instance the applicant claims was a health specialist of Chinese heritage he and his wife saw for one appointment. He claims this specialist was asking questions unrelated to the health concerns of his wife and was asking about their religious practices, who else they knew of Chinese heritage that held the same religious beliefs, the names of these people and where they lived.
    • The applicant claims that individuals who are loyal to the Chinese Communist Party (CPP) collect and report information as they or a family member still in China may get a reward, such as money or social privilege, by providing information about people who could be seen to be against the CCP.
    • The secondary applicant claims that she would face issues upon return given she wears a hijab and that the Chinese authorities have increased harassment against Muslims, including not allowing women to wear traditional Islamic head dress.
    • The applicants claim that when registering their youngest son, they were required to state he was Han. They claim that due to this, their youngest son would face significant issues if he tried to openly practice his faith in China.
    • The applicants claim that if they were to return to China that they would likely be detained and/or sent to a re-education institution. They claim that the authorities would separate them from their children and they’d likely never see them again.
    • The applicants claim that they fear they will be killed or die if detained again because of the inhumane treatment by the Chinese authorities of individuals in detention.

    Assessment of claims

25. In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims a 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.)

1. 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.

2. On the other hand, as stated previously, 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).

3. Credibility issues regarding the applicant were raised by the delegate in the Departmental decision record. Additionally, the delegate did not accept the detention documents submitted by the applicants as genuine. The delegate referred to a report from DFAT which suggested Chinese detention documents can be fraudulently obtained in Melbourne. The Tribunal however, does not need to rely on these documents to determine or make a finding of fact regarding the applicants’ religious beliefs and their claim of persecution arising from religion and/or imputed political opinion.

4. The Tribunal finds that the applicants have provided consistent claims throughout the whole process. During the hearing the Tribunal was able to test the applicants’ claims in great detail along with discussing in depth their religious observance and practice both in China and Australia. The applicants each gave evidence separately about the claims made and their religious observance. They both provided clear and straightforward answers which were consistent with each other. The Tribunal finds the applicants appeared credible throughout the hearing.

5. The Tribunal accepts the following:

   ·The applicants practice Islam and identify as Muslims;

   ·The primary applicant openly and publicly practiced his faith in China;

   ·The primary applicant travelled to [Country 1] to explore his faith in 2005;

   ·The applicants have continued to practice their faith in Australia and their claims in that regard have been corroborated through supporting documents provided to the Tribunal as well as verbal evidence at hearing by [Mr A], an  employee of the mosque the family attend;

   ·The primary applicant has, since being in Australia, attended public events and handed out material encouraging individuals to support the plight of Muslims in China and he has participated in fundraising to promote freedom of laws and democracy in China.

6. Regarding the detention of the primary applicant on two occasions for 12-month periods and the treatment he claims to have experienced during these periods of detention, the Tribunal finds that these claims are plausible and consistent with country information detailed below.

7. Regarding the detention of both applicants for a 10-day period and the treatment they claim to have experienced during this time and only released upon paying money, the Tribunal finds that these claims are also plausible and consistent with country information detailed below.

   Country Information

8. The current DFAT Country Information Report on the People’s Republic of China, issued 3 October 2019, relevantly provides the following regarding Muslims in China:

   Muslims

   3.50 Muslims account for 1.8 per cent of the population (approximately 25 million people), although estimates vary. The highest concentration of Muslims is in western China, primarily in Xinjiang (the only Muslim majority province), Ningxia Autonomous Region (NAR), and Gansu. Other significant Muslim populations reside in Henan, Qinghai, Yunnan, Hebei and Shandong.

   3.51 China has 10 major Muslim ethnic groups, the largest of which are the Hui who are predominantly based in the NAR, Gansu, Qinghai, and Yunnan provinces. The Hui are relatively assimilated, speak Mandarin and tend to look similar to Han Chinese, to whom they are ethnically related. Uighurs (see Ethnic Uighurs), primarily based in Xinjiang, are also predominantly Muslim. According to the government, 23,000 of China’s over 30,000 mosques are in Xinjiang.

   3.52 China’s 2018 CPPPFRB white paper notes the Regional Ethnic Autonomy Law (1984; Amended 2001) states organs of self-government in ethnic autonomous areas shall guarantee citizens of all ethnic groups the freedom of religious belief (see Religion). In practice, however, authorities have increasingly restricted expressions of the Islamic faith, and officials apply the law rigorously and tightly control religious activity in relation to Uighur Muslims (see Ethnic Uighurs). Xinjiang is of particular concern to the government due to Xinjiang’s ethnic and religious ties to neighbouring states and an increase in attacks against government workers and civilians, including bombings, and vehicle and knife attacks. The government alleges the East Turkestan Islamic Movement (ETIM), a militant Islamic separatist group, is behind the violence, but experts suggest the threat posed by ETIM may be exaggerated. However, authorities claim such attacks have not occurred in recent years as a result of policies in place in Xinjiang.

   3.53 In 2017 and 2018, restrictions against certain practices were formalised in laws and regulations such as (but not limited to) the Xinjiang Regulations Against Extremism (2017; Amended 2018) (Xinjiang Regulations). These restrictions, which had been in place for some time, target practices such as: ‘generalising the concept of halal,’ wearing full veils or masks, growing beards, using religious names for Muslim newborns, and marrying only in religious ceremonies (without formal marriage under law). It is also illegal under Chinese law for people under the age of 18 to attend prayer at mosques, and for government officials or students to fast during Ramadan, or to participate in private religious education.

   3.54 Article 33 of the Xinjiang Regulations also notes ‘educational transformation institutions such as vocational skill education and training centres shall teach the national common language, laws and regulations, and vocational skills, and; centres should organize and carry out anti-extremist ideological education, psychological correction, and behaviour correction to transform the thinking of the trainees so as to help them return to society, and to their family’.

   3.55 In September 2017, Radio Free Asia reported that Xinjiang police were confiscating all ‘Islamic-related items’, including prayer mats and copies of the Koran. In 2016 and 2017, officials in Xinjiang actively prohibited Ramadan observance, reportedly forcing people to eat during the day.

   3.56 Courts in Xinjiang have handed down a number of sentences to people convicted of conducting religious activities (see Ethnic Uighurs). In June 2017, for example, a court sentenced a person to two years in prison for posting Islamic religious instruction on social media. Reports also indicate Uighurs have been jailed for distributing unauthorised religious material on the internet, and large numbers of Muslims have been sent to ‘re-education centres’. According to media reporting, behaviour which could lead to detention in such a centre includes, but is not limited to: following a ‘halal lifestyle,’ preventing children from attending state education, refusing to watch state television or listen to state radio, and spreading religious fanaticism by having ‘abnormal beards’ or ‘unusual names.’

   3.57 While non-Uighur Muslims in the rest of China have historically experienced greater religious freedom, the government backed China Islamic Association is reportedly developing a five-year plan to sinicise Islam, which media claims is mostly targeted at Hui Muslims. In November 2018, Chinese state media also reported local authorities in the NAR had signed a ‘cooperation anti-terrorism agreement’ with Xinjiang, to ‘learn from the latter’s experiences in promoting social stability.’

   3.58 In August 2018, hundreds of ethnic Hui protested in Tongxin, Ningxia, following the demolition of the newly built, Islamic-style Weizhou Grand Mosque. The Weizhou Grand Mosque had originally been a Chinese styled building which was demolished during the Cultural Revolution. The Islamic-styled mosque was rebuilt with local government support, however was accused of contravening China’s policy of religious sinicisation. Restrictions on religious expression have led some Hui to fear increasing restrictions on their religious practice.

   3.59 DFAT assesses state sponsored religious control of Muslim Uighurs was significant in 2018, and remains so in 2019. DFAT assesses Uighur Muslims in Xinjiang face a high risk of official and societal discrimination based on their religion. DFAT assesses Uighur Muslims outside of Xinjiang face a high risk of official discrimination due to their religion and a moderate risk of societal discrimination.

   3.60 DFAT assesses that non-Uighur Muslims in other parts of China have historically faced a low risk of official and societal discrimination (as they are more integrated and are not perceived to pursue an independence agenda); however, DFAT notes a trend of official discrimination towards all Muslims grew in 2018, and continues to do so in 2019.

9. In considering the applicants claims it is important to have regard to the current situation for Muslims in Xinjiang, China. The current DFAT Country Information Report on the People’s Republic of China, issued 3 October 2019, relevantly provides the following:

   Extra-Judicial Killings

   4.2 Media sources allege that, in some instances, Chinese security forces have committed torture and extrajudicial killings with impunity, and that China is committing cultural genocide in Xinjiang (see Torture). Human rights groups have claimed police in western China have used lethal force to disperse unarmed groups of Uighurs and Tibetans protesting against religious restrictions. The Chinese Government has denied these claims. Restrictions on foreign access to these regions have made it impossible for DFAT to assess these claims.

   Enforced or Involuntary Disappearances

   4.6 Tibetans and Uighurs have disappeared into official custody in recent years, and media and human rights sources have documented the detention of over one million Uighurs and other Muslims in re-education camps in Xinjiang (see Ethnic Uighurs, Muslims, Extra-Judicial Killings and Ethnic Tibetans). Some have later appeared in court on charges of endangering state security or terrorism. Some have received lengthy sentences or the death penalty. The Australian Strategic Policy Institute has used satellite imagery and other sources to document and map the existence and expansion of 28 detention camps in Xinjiang. Media and ASPI report the footprint of the 28 re-education camps had expanded by over 2 million square kilometres by late 2018.

   4.7 DFAT is also aware of numerous reports of family members of Uighur Australians who have become uncontactable in Xinjiang in recent years. Xinjiang officials state the re-education camps are ‘vocational training centres.’ The UN has requested access to Xinjiang to verify ‘worrying reports’ regarding re-education centres in Xinjiang detaining Uighurs.

   TORTURE

   4.18 Media, human rights groups, members of the international community, and Uighurs have also reported the use of violence and torture of Uighurs in re-education centres in Xinjiang (see Ethnic Uighurs, Muslims ). Media and Uighurs’ reports of physical and psychological maltreatment have included, but are not limited to, interrogation, inappropriate clothing for climate, sleep deprivation, administration of electric shocks, having weights tied to feet, indefinite confinement, forced administration of medication, psychiatric drugs, injections, blood tests, DNA sampling, and medication to stop menstruation, as well as intrusive medical examinations.

10. Although the applicants are not of Uighur ethnicity the current DFAT report provides information that impacts both Uighur and other minorities in Xinjiang and relevantly provides:

    Uighurs

    3.9 There is considerable international concern regarding the treatment of Uighurs in Xinjiang. In September 2018, the UN Committee on the Elimination of Racial Discrimination (CERD) reported over one million people, including large numbers of ethnic Uighurs and other Muslim minorities, had been detained in political and cultural re-education centres in Xinjiang. The Australian Strategic Policy Institute has produced a map, informed by satellite imagery, detailing the locations of re-education centres in Xinjiang. While the government denied these claims, in October 2018, the Xinjiang government issued regulations regarding the use of ‘vocational skills and educational training centres’ to ‘counter extremism’ though ‘transformation.’

    3.10 UN CERD has also expressed concern over claims of human rights abuses in Xinjiang, including:

    people being held in incommunicado detention without being charged or tried, often for long periods, under the pretext of countering religious extremism;

    mass surveillance disproportionately targeting ethnic Uighurs, including frequent police stops, scanning of mobile phones at police checkpoint stations, and mandatory collection of extensive biometric data of Uighur residents (including DNA samples and iris scans);

    imposition of travel restrictions (as detailed above), including on those wishing to travel for religious purposes;

    cases of Uighurs who had left China allegedly returned against their will, with fears for their safety, and;

    banning of Uighur language education from schools (sources report this change to the language of educational instruction has generalised across Xinjiang).

    3.12 The government has implemented a zero-tolerance campaign against separatists and terrorists and maintains a heavy security presence across Xinjiang, which has increased ethnic tensions (see Security Situation). This approach has intensified since August 2016, when the former Party Secretary of Tibet, Chen Quanguo, became Party Secretary of Xinjiang.

    3.13 The government has carried out high-profile prosecutions of persons with suspected links to violent incidents. These have included mass arrests, mass trials and mass sentencing. Sentences have included the death penalty and executions have been carried out. Some Uighurs have received lengthy sentences for their political views: a prominent Uighur academic, Ilham Tohti, has been serving a life sentence since 2014 for alleged separatism for advocating on social media greater cultural and religious autonomy for Uighurs. Others have reportedly received lengthy prison sentences for conducting religious activities that have included circulating passages from the Koran, praying in groups, and observing Ramadan (see Muslims). Chinese authorities tightly control access to information about incidents of violence in Xinjiang and related legal cases, and information is difficult to verify.

    3.14 DFAT is unable to verify claims that the government subjects many Uighurs in rural prefectures to forced labour (‘hashar’). Media has reported that government officials in Hotan announced a new ban on hashar in 2017, despite the Party claiming compulsory labour had been banned in Xinjiang decades earlier. Media has also reported that Uighurs detained in re-education centres in Xinjiang have been taught ‘vocational skills,’ including manufacturing in textiles, and are providing labour in nearby factories (see Arbitrary Arrest and Detention).

    3.15 Authorities cite the need to curb extremism to justify extreme security measures in Xinjiang. In November 2016, the government confiscated the passports of all Uighurs in Xinjiang, citing the need to prevent terrorists from travelling to the Middle East as foreign fighters. In 2017, media reported the passport recall expanded to all Uighurs in China, as a part of heightened security measures linked to the 19th Party Congress. Any Uighur wishing to travel abroad had to apply to have their passport returned. The government has also increased efforts to surveil and control the Uighur diaspora: Chinese authorities ordered Uighurs studying abroad to return by May 2017 and, at the request of Chinese authorities, over 200 Uighur students living in Egypt were arrested and returned to China in July 2017. Media reports claim some returning Uighur students were detained in re-education centres, and some died in custody. Chinese security agencies have also allegedly detained family members of Uighurs living abroad, in some cases to force returns (see Arbitrary Arrest and Detention). Sources report officials regularly subject Uighur families to ‘homestays,’ during which Uighur families are reportedly required to provide officials with information about their lives and political views and are subjected to political indoctrination.

    3.16 In May 2019, Human Rights Watch published a report, China’s Algorithms of Repression, detailing the capacities of a mass surveillance app used by Xinjiang police and other officials to communicate with the Integrated Joint Operations Platform (IJOP) used for mass surveillance in Xinjiang. Human Rights Watch reports that officials use the IJOP app collect personal information; report on activities or circumstances deemed suspicious (Xinjiang authorities consider many forms of lawful, non-violent behaviour - including not socialising with neighbours or not using the front door - as suspicious); and prompt investigations of people the system flags as problematic. The IJOP system surveils and collects data on everyone in Xinjiang, and tracks the movement of people by monitoring the trajectory and location data on mobile phone handsets, ID cards and vehicles. The IJOP app collects personal information including, but not limited to, the colour of a person’s car and their height, and links this information to their national identification number. Dependent on the level of perceived threat and based on factors programmed into the IJOP system, an individual’s freedom of movement can be restricted. Restrictions include detention in re-education centres, house arrest, not being allowed to leave a registered location, not being allowed to enter public spaces or not being allowed to leave China. The IJOP app also scores government officials on their performance in fulfilling tasks and is a tool for higher-level supervisors to assign tasks to, and monitor the performance of, lower-level officials.

    3.19 DFAT assesses that Uighurs in Xinjiang and in other parts of China face a high risk of official discrimination due to their ethnicity, particularly where authorities perceive them to be politically or religiously active (see Muslims). As a result of the government’s zero-tolerance campaign against separatists and terrorists, and social pressures enforced by reporting obligations under the national security laws, DFAT assesses Uighurs in other parts of China face an increasing risk of moderate societal discrimination due to their ethnicity (see Security Situation and The Social Credit System).

    Do the applicants have a well-founded fear of persecution if they return to China?

11. As above, the Tribunal has accepted that the applicants are practicing Muslims. On the available evidence, including their consistent account of their religious observance, the Tribunal is satisfied that the applicants' religious activity in Australia has not been engaged in for the sole purpose of strengthening their claims for protection. Rather, the Tribunal is satisfied that they have engaged in these activities because they are genuine Muslims and followers of Islam.

1. The Tribunal is satisfied that the applicants are genuine believers of Islam. The Tribunal accepts they will continue to be active and committed followers of Islam if they return to China.

2. The country information, the Tribunal finds, indicates that practising Islam, such as it finds the applicants do, is severely restricted and they would face a real chance of being harassed, detained or otherwise harmed by the authorities because of their religious belief and worship. The Tribunal finds their religious beliefs are the essential and significant reason for the persecution. The Tribunal notes the country information details strict surveillance of residents of Xinjiang. As such, the Tribunal finds that there would be a real chance the applicants would come to the attention of the authorities in the course of practicing their faith.

3. On the basis of these findings, the Tribunal finds that the applicants cannot return to China, and worship in the way they have been worshipping in Australia. On the weight of the country information it accepts that the applicants would have to alter or hide their religious practice or expression of their faith in any manner if they returned to China, and could not continue to worship and practice their faith in the manner they have done.

4. The Tribunal finds that it is apparent from the above country information that the applicants’ religious community is facing serious issues in China. While this country information serves merely as an overview of the situation, the Tribunal finds it is highly apparent the Chinese Government’s suppression of the applicant’s religious community has continued to escalate and the persecution the applicants may face involves systematic and discriminatory conduct. Given the primary applicant’s past travel to [Country 1] and his past profile, the Tribunal finds it there is a real chance the applicants would face harm upon return to China. The chance of them facing serious harm is greatly enhanced by the fact they have openly practiced their faith in Australia and have remained abroad for a prolonged period.

5. As the Tribunal has found the applicants to be genuine adherents of Islam, and given the above country information reporting, the possibility cannot be dismissed as remote that they will, because of their involvement with a religion which is easily identifiable, come to the adverse attention of the authorities.

6. The Tribunal is satisfied that there is a real chance they will suffer serious harm if they return to China for reason of their religion.

7. Accordingly, the Tribunal finds the applicants have a well-founded fear of persecution in China on account of their religion.

8. As the harm they fear is from the state itself, the Tribunal accepts that adequate state protection will not be available to them in China.

9. Further, the Tribunal finds that the real chance of persecution relates to all areas of China.

10. For the reasons given above, the Tribunal is satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.

    DECISION

11. The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.

    Cathrine Burnett-Wake
    Member