1713499 (Refugee)

[2020] AATA 1139

1713499 (Refugee) [2020] AATA 1139 (21 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1713499

COUNTRY OF REFERENCE:                   China

MEMBER:Cathrine Burnett-Wake

DATE:21 January 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 21 January 2020 at 12:27pm

CATCHWORDS
REFUGEE – protection visa – China – religion – Christian – unregistered ‘house’ churches – claimed detention and harm – credibility concerns – limited knowledge of claimed faith – religious observance at a low level – inconsistent claims – decision under review affirmed

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

CASES
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155

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 on 15 June 2017 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 13 August 2015. The delegate refused to grant the visas on 15 June 2017.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.

7. 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

8. 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.

   Member of the same family unit

9. 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

10. The issues in this review are whether the applicants have a well-founded fear of being persecuted for one or more Convention reasons 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 decision under review should be affirmed.

    Identity

11. 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.

12. 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

13. The applicants claim persecution arising from religion. The applicants attended an interview with the Department. Additionally, the applicants attended a hearing before the Tribunal and both gave verbal evidence.

14. The claims provided in the application and during the Department protection interview can be summarised as follows:

    ·The applicants began practising Christianity in approximately 2009.

    ·The applicants would attend other Chinese Christians’ houses, where they would discuss the Christian religion. The applicants were all baptised at one of these meetings.

    ·Several times these religious meetings have been interrupted by the Chinese authorities who have detained the applicant and his family as a result. The primary applicant claims he has been tortured by the Chinese authorities on several occasions.

    • The primary applicant fears that he and his family will be unable to practise their Christian faith if they return to China, and may be tortured or seriously harmed by the authorities if they are to return.

15. The applicants made the following claims and provided the following verbal evidence at the Tribunal hearing:

    • The primary applicant claimed he and his family are from the Liaoning Province in China and that his parents and siblings still reside in that province, as do the secondary applicant’s family.
    • The applicants claim that the only countries they have travelled to outside of China has been Australia and [Country 1] and that the trip to [Country 1] was for a few days, organised by the travel agent, and occurred after they first initially arrived in Australia.
    • The primary applicant claims that his friend [Mr A], who he met once in China before coming to Australia, assisted him with the protection visa application because he knew the situation in China and had been in Australia for over 30 years. The primary applicant claims that this friend offered to help and send everything to the Department on his behalf as his English is not so good. The primary applicant claims he does not think his friend is a migration agent, rather the friend knew of the situation in China and said that the applicant had possible protection claims.
    • The primary applicant claims that he completed all primary and secondary schooling in China, and afterwards attended college and attained a [specified qualification].
    • The primary applicant claimed that his employment prior to coming to Australia was in a [specified] shop and he was responsible for [specified duties].
    • The primary applicant claims that he and his family travelled to Australia on a visitor visa with the intention of applying for a protection visa, because his friend [Mr A] told them they would have the freedom to follow their beliefs in Australia.
    • The primary applicant claims that he is currently working in Australia in the [a certain] industry and does work such as [deleted]. He claims sometimes he is paid cash, and sometimes he is transferred money into his bank account.
    • The primary applicant claims that in China religious belief is not totally protected and the government only allow you to go to certain places to worship, however that is against his beliefs.
    • The primary applicant claims that if you organise a group gathering at home the authorities will say it is illegal. The primary applicant claimed that if they catch you at a gathering they put you in detention and they treat you in an inhumane way.
    • The primary applicant claimed that the pastor at his Australian church told a story at a gathering in November 2019 following a recent trip to China; this pastor explained to everyone at the gathering that the situation in China was not like we imagined and the government were not open to religion and that more people were being punished for their beliefs.
    • The primary applicant claimed that he and his wife were Christians and they believed in Jesus Christ.

    ·The primary applicant claims that because of his Christian beliefs he was punished by the Chinese public security authority. He claims he was attending a gathering of 7–8 people in approximately April/May 2009 at a church brother’s home. The primary applicant claimed that he assumes an older lady from the same neighbourhood reported to the police there were a group of people gathering, and subsequently the police came knocking at the door claiming they were an illegal group gathering and it was not permitted. The primary applicant claims the police removed everyone from the house and transported them to the police station in police vehicles. The primary applicant claimed that the police hit them and used electrical prods on them. The primary applicant claims that they were all held in a small room and were asked questions and if they did not obey the police, they would be kicked. The primary applicant claims they were held in the police station for one night, then they were transported to a detention centre and they stayed for 6–7 days. The primary applicant claims he was beaten by officers in the detention centre.

    • The primary applicant claims after he was released, he was summoned to the police station and was asked if he had been attending gatherings again. The primary applicant claims they questioned him and made oral threats and said if he was caught again, he would be put back in detention.
    • The primary applicant claimed that he had to report to the police station weekly, and then in 2012 he had to report only on a monthly basis, then less frequently after that.
    • The applicant claimed that nothing happened again after the first detention in 2009, he just felt upset and strained.
    • The primary applicant claimed that both his and his wife’s family back in China are not Christians.
    • The primary applicant claims that he will be harmed if he went back, even though nothing serious happened following the claimed detention in 2009.
    • The primary applicant claims that after he left China the police went to his mother’s home and asked her where he went, to which she responded she did not know. The primary applicant claimed that the police told his mother to make a report that he was missing and that if she heard from him to tell the primary applicant he had to report to them.
    • The primary applicant claims that if he went back to China something similar that happened to him will happen again, because China treats people with religious beliefs inhumanely.
    • The primary applicant claims he and his family cannot relocate due to the household registration issues and if he went back and to another area they will know he’s back.
    • The primary applicant claims he reads the Bible each night and goes to church every week.
    • The primary applicant claims he goes to [Church 1] and his family were baptised again in Australia as it is more formal, and the baptism they underwent in China was not formal.
    • The primary applicant claims his understanding of Christianity is you need to be kind to people and honest. He claims that his reading and interpretation of the Bible is as reading stories, not like some other believers who are obsessed with it.
    • The primary applicant claims that he feels sad when he reads about Jesus being crucified for paying the price of other people’s sins.
    • The primary applicant claims that the Bible he reads was given to him by his pastor and he attends church every week.
    • The primary applicant claimed he did not know what the significance of Christmas was to Christians. He claimed he knew there was Christmas Eve but did not know what occurred on Christmas Eve. He claimed that he attended a concert organised by the Church last Christmas Eve, however as it was all in English, he did not know what it meant.
    • The primary applicant claimed that the significance of Easter was that Jesus came back to life after being crucified, however, he did not know any further details and could only recall them remotely.
    • The primary applicant claimed that he was aware Jesus had followers and one of them betrayed him.
    • The primary applicant claimed that in addition to attending church weekly, he participates in group gatherings at individuals’ homes on a Friday evening, and generally there are around 10 people in the group. He claimed that sometimes these gatherings are at his home, and they discuss their lives and then they take part in a story or discuss a part of the Bible, such as Jesus being crucified.
    • The primary applicant claimed that his wife, the secondary applicant, had a stroke in late 2019 and is currently experiencing memory loss and undergoing therapy, however, she is expected to make a recovery.
    • The secondary applicant claimed that because of her stroke, she could not recall what happened in China before she came to Australia, however, she went to church every week with her husband in Australia and she considers herself Christian.

    Assessment of claims

16. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

17. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.

18. The Tribunal has carefully considered the claims made by the applicants. The Tribunal found the primary applicant to be an unreliable witness. On some matters he was able to give evidence with confidence and clarity, but when it came to questions about his claimed detention and harm in China and his faith, he was less able to provide clear and straightforward answers and required prompting.

19. The primary applicant was able to provide only minimal and general information about his claimed religious practice to the delegate. At the Tribunal hearing, he was able to add some further detail. However, despite having a considerable period to immerse himself in his faith, he was not able to demonstrate more than a very generalised and generic sense of his faith, the reasons for his becoming a Christian, or what his religious practice was or its significance to him. The Tribunal has grave doubts that the applicant considers himself a Christian or part of a Christian group. The Tribunal was unable to explore with any great detail the secondary applicant’s claims regarding her religious observance, given her claimed memory loss as a result of her stroke.

20. However, the Tribunal accepts that the applicants attend [Church 1] in Melbourne, and a gathering of people on a more or less weekly basis. The Tribunal accepts that this Church and the gatherings identify as a Christian group. The Tribunal accepts that the applicants draw some benefit from attending this group.

21. The Tribunal accepts that the primary applicant has some knowledge of Christian teachings and the Bible although, as above, the Tribunal found this knowledge to be general and generic, the primary applicant was unable to recount one story from the Bible, explain the significance of Christmas and only very generally provide details of what the significance of Easter was. The Tribunal considers that this is very little detail for someone who claimed to have been practising Christianity since 2009, and attending church in Australia and other gatherings on a weekly basis since mid-2015 where they supposedly read passages of the Bible and discussed them on each occasion. The Tribunal finds that the primary applicant’s understanding and knowledge of Christianity is superficial.

22. The Tribunal does accept that the applicants went through a process of baptism through [Church 1] in Melbourne in August 2018 and has sighted their baptism certificates. The Tribunal is willing to accept that the applicants, in Australia, have engaged in Christian practices and have some attachment to Christianity.

23. As a person who has been attending a Christian gathering reasonably regularly and has been baptised, although has little knowledge of scripture or the teachings of Christ, the Tribunal is willing to accept that the primary applicant identifies as a Christian who has worshipped at a low level (meaning that although he attends gatherings, prays and spends time with people there, he has not developed more than a superficial understanding of Christianity nor does he engage in any other activities as a Christian). The Tribunal accepts that the secondary applicant attends church on a weekly basis with the primary applicant and that the applicants may wish to continue worshipping in the same low level manner in the future.

1. The Tribunal has serious concerns about the claims relating to the primary applicant’s claimed detention and harm in 2009, and the subsequent reporting to the authorities he claimed he was required to do. The applicant could not provide specific details of the events that led up to the detention, what occurred during the period of detention and the claimed harm that had purportedly occurred. He could also not provide specific details regarding the reporting he was allegedly required to do following the claimed detention.

2. Furthermore, the Tribunal has serious concerns about the inconsistency in the claims made by the primary applicant. In the primary application, it was claimed that the religious gatherings in China had been interrupted by the Chinese authorities on several occasions resulting in detention of the applicant and his family, and that he had been tortured by the Chinese authorities on several occasions. At hearing, the applicant told the Tribunal he was detained on only one occasion, that being April/May of 2009, and it was only himself that was claimed to be detained and harmed. The applicant could not explain why the claim to the Tribunal differed to that in his application.

3. The Tribunal finds that these are significant inconsistencies in his claims and these inconsistencies, and his inability to explain in a clear and compelling way why there are these inconsistencies, leads the Tribunal to disbelieve that these things happened. Further, given the significance of these claims, this leads the Tribunal to doubt his other claims, and his general credibility.

   Country information

4. The Tribunal discussed with the applicant country information from the current Department of Foreign Affairs and Trade Country Information Report on the People’s Republic of China, issued 3 October 2019:[1]

   [1] DFAT COUNTRY INFORMATION REPORT, PEOPLE’S REPUBLIC OF CHINA, 3 October 2019

   RELIGION

   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. This is enforced by Chinese public security officials who monitor registered and unregistered religious groups.

5. The Tribunal explained that this information, consistent with other information, might lead it to infer that he and his family could practise Christianity as he had described it to the Tribunal with only a remote chance of them coming to the attention of or being harmed by the authorities. In response, the applicant claimed that the government tries to stop gatherings and he would be harmed.

6. The Tribunal summarised and discussed further information with the applicant:

   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.

   3.78 There has been an increase in state control of both registered and unregistered churches in recent years, including targeted campaigns to remove hundreds of rooftop crosses from churches, forced demolitions of churches, and harassment and imprisonment of Christian pastors and priests (see Government Framework regarding religion). Some churches deliberately restrict their numbers to avoid attracting adverse official attention. Government officials are more likely to scrutinise churches with foreign affiliations, or those that develop large or influential local networks, and house churches are under pressure to ‘sinicise’ their religious teachings.

   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 (see Political Opinion (actual or Imputed) and Protesters/petitioners).

   13.80 Religious NGOs claim that, while pressure on Christian groups differs from province to province, a trend of increased pressure on Christian groups normalised across provinces in 2018. Authorities apply pressure to Christian churches during monthly ‘tea’ meetings. According to media, authorities cracked down on Christmas celebrations in December 2018. Several cities, schools and government institutions issued instructions not to celebrate Christmas and to promote Chinese culture instead, and at least four cities and one county issued a ban on Christmas decorations. In Langfei, Hebei province, authorities ordered the removal of all Christmas decorations and stopped shops selling Christmas-themed products to ‘maintain stability.’ In Changsha, Hunan province, the education bureau issued a directive to schools not to celebrate ‘western festivals’ such as Christmas, and not to put up decorations, post related messages or exchange gifts. Nevertheless, DFAT notes Christmas decorations were still visible in some department stores in major cities across China.

   3.81 In December 2018, police raided a children’s bible class in Guangzhou, and shut down the Early Rain Covenant Church in Chengdu, arresting 100 members and keeping others under close surveillance in December 2018. In September 2018, one of China’s largest underground churches, Beijing Zion Church, was shut down (see Government Framework regarding religion). Members of the Early Rain Covenant Church were detained by authorities in June 2018 due to plans to hold a prayer service to mark the anniversary of Tiananmen Square and, in May 2018, due to plans to hold a prayer service to mark the tenth anniversary of the Sichuan earthquake.

   3.82 Heightened government sensitivity over foreign influence creates difficulties for prominent members of unregistered churches seeking to travel abroad, particularly for religious events, and for foreign church organisations to work, or liaise with registered churches, in China. NGOs report increasing difficulties for mainland Christians seeking to travel to Hong Kong or Macau for religious activities, and for Christian NGOs or activists from Hong Kong and Macau to travel to the mainland.

   3.83 DFAT assesses members of unregistered churches who participate in human rights activism are at high risk of official discrimination and violence, as are their families (see Political Opinion (actual or Imputed). DFAT assesses the adverse attention relates to their activism and association with unregistered (and illegal) organisations, rather than specifically to their Christian faith.

7. The Tribunal explained that this information might lead it to infer that he and his family could worship as members of an official or unofficial congregation with only a remote chance of coming to the attention of or being harmed by authorities, as the evidence before the Tribunal is that they worship at a low level and were not partaking in political activism or leading Church gatherings. The primary applicant in response said although this may be official information, things in other areas were happening that we would not find out about.

8. The Tribunal explained that there was good reporting of events in China, that the DFAT report it had quoted was compiled from Australian government officials in China who spoke to a range of people about the situation, and so the Tribunal was not sure it accepted that things are happening that we could not know or find out about.

9. In response, the applicant claimed that although this is official information, there are different things happening in different areas and the government does stop people from practising their beliefs.

10. The Tribunal finds that what it has accepted of the applicants’ religious practice and the primary applicant’s description of the gatherings he claims to have attended in China fit descriptions of unregistered ‘house’ churches in China.

    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 have worshipped in a low level manner in Australia and that the description of their religious practice prior to coming to Australia corresponds to descriptions of unregistered ‘house’ churches in China.

12. On the country information above, it suggests that a trend of increased pressure on Christian groups normalised across provinces in 2018, and some of the specific incidents listed appear to have involved ‘ordinary’ church members, however, DFAT assesses members of unregistered churches that come to adverse attention is likely to relate more to their activism than to their religious affiliation or practice. There is no information before the Tribunal that the applicants were involved in activism.

13. The Tribunal finds that if the applicants returned to China, they may wish to practise as it has found they do in Australia – that is, attending a gathering once a week, at which they pray and discuss the Bible. On the country information above, the Tribunal finds that they could do this at an unregistered house church in China.

14. On the basis of these findings, the Tribunal finds that the applicants can return to China, and that their worship and religious observance at a low level would mean there is only a remote chance of them of being harmed by the authorities or anyone else.

15. The primary applicant claimed that he faced a risk of harm and persecution in that he would be detained by the authorities if he returned. The primary applicant claimed that he was detained previously and had to regularly report to the authorities and they made enquiries of his whereabouts after his departure from China. The Tribunal does not accept these aspects of the primary applicant’s claim based on the Tribunal’s serious concerns raised above regarding the distinct lack of detail provided by the primary applicant in establishing this claim, the inconsistencies of this claim compared to the claims in the primary application and based on the finding that the primary applicant is an unreliable witness.

16. Therefore, the Tribunal finds that there is no real chance that the applicants will be harassed, detained or otherwise harmed by the authorities or anyone else for reasons of Christian religion, now or in the reasonably foreseeable future. The applicants did not claim, and there is no evidence to support, them fearing harm on any other basis on return.

17. For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a). Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).

    Are there substantial grounds to believe that the applicant will suffer significant harm if he is returned to China?

18. In MIAC v SZQRB[2] 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.

    [2] 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]

19. As detailed above, the Tribunal has accepted that the applicants are Christian worshippers who practise their faith in a low level manner in Australia and would continue to do so on return to China. On the basis of the country information and reasoning above, the Tribunal finds that there is no real risk that the applicants will be harassed, detained or significantly harmed in any way by the authorities or anyone else, now or in the reasonably foreseeable future.

20. On the information before the Tribunal, it finds that there is not any other basis for a risk of harm to the applicants on return to China.

21. Therefore, the Tribunal finds that there is no real risk that the applicants will be subject to significant harm by the authorities or anyone else, if they returned from Australia to China, now or in the reasonably foreseeable future.

22. The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).

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

24. For the reasons given above, the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c) and cannot be granted the visa.

    DECISION

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

    Cathrine Burnett-Wake
    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.

    …