1714128 (Refugee)

[2021] AATA 839

1714128 (Refugee) [2021] AATA 839 (19 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1714128

COUNTRY OF REFERENCE:                   China

MEMBER:Nicholas McGowan

DATE:19 March 2021

PLACE OF DECISION:  Melbourne

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

Statement made 19 March 2021 at 11:42pm

CATCHWORDS

REFUGEE – protection visa – China – religion – joined Local Church in Australia after mother joined in home country – political opinion – mother arrested after protests against domestic violence – ongoing monitoring, harassment and threats by authorities – member of a particular social group – child born to unmarried parents – credibility – no documentary evidence – applied for protection after expiry of student visas and period as unlawful non-citizens – claims not consistent with country information – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5, 5AAA, 5J(1), 5H, 36(2)

CASES

Aporo v MIAC (2009) 113 ALD 46; [2009] FCAFC 123

Dranichnikov v MIMA [2003] HCA 26

Kopalapillai v MIMA (1998) 86 FCR 547

Machmud v MIMA [2001] FCA 1041

MIEA v Guo (1997) 191 CLR 559

MIMA v Rajalingam (1999) 93 FCR 220

MIMIA v Lat (2006) 151 FCR 214

Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

Randhawa v MILGEA (1994) 52 FCR 437

Selvadurai v MIEA (1994) 34 ALD 347

Sun v MIBP [2016] FCAFC 52

SZLVZ v MIAC [2008] FCA 1816

Yao-Jing v MIMA (1997) 74 FCR 275

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

WRITTEN STATEMENT OF DECISION AND REASONS

1. The first named applicant (the ‘applicant’) applied to the Tribunal on 2 July 2017 for a review of her (and the secondary applicants) protection visa (Subclass XA-866) refusals by the Minister’s delegate (refused on 21 June 2017).

2. The applicant is married to the second-named applicant, who the Department has been satisfied is her de facto (as is outlined in the delegate’s ‘Decision record’ (dated 21 June 2017) a copy of which the applicant has provided to the Tribunal). The third named applicant is the child of the applicant and second-named applicant, born [date] in Australia, during a period the applicants were both unlawful non-citizens.

3. None of the applicants are a member of a family unit as a non-citizen in respect of whom the Minister has been satisfied Australia has protection obligations and who holds a Protection visa of the same class as that applied for by the applicant: Section 36(2)(b) and Section 36(2)(c) of the Migration Act 1958 (the Act).

   Mandatory Considerations

4. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Refugee Law Guidelines and PAM3 Refugee and humanitarian - Complementary Protection Guidelines. It has also taken into account the relevant country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, China Country Information Report, to the extent that it is relevant to the decision under consideration.

   Migration history

5. The applicant first arrived in Australia [in] October 2008 on a [student visa].

6. The second-named applicant first arrived (prior to the applicant) [in] April 2008 on a [student visa].

7. The applicant departed Australia [in] December 2009 and returned [in] March 2010.

8. On 15 March 2011 the applicant and second-named applicant became unlawful non-citizens upon the expiry of their student visas).

9. On [date] the third named applicant is born to the applicant and second-named applicant.

10. On 20 January 2015 the applicants (all three) lodged applications for protection (Subclass 866 visas).

    Identity

11. The Department of Immigration has previously accepted that each applicant’s identity is as claimed. The applicant has provided the department with a copy of her Chinese passport bio-page.

12. There is no evidence or claim before the Tribunal that any of the documents provided is a bogus document as defined in Section 51 of the Act.

13. In addition (to the above), no check of the Department’s relevant systems (as referred to by the Minister’s delegate in the Decision record of 21 June 2017), raises any concerns with the relevant authorities that any of the applicant’s has given a false identity.

14. Given the above and based on the information in the applicant’s Department of Immigration file, each applicant has satisfied the Tribunal of their identity as outlined above.

    Receiving country

15. As the Tribunal has found the applicant to be a national of the People’s Republic of China, and there is no evidence (or claim) before the Tribunal that any of the applicants holds any other citizenship or have a current right to enter or reside in a third country) the Tribunal accepts section 36(3) of the Act does not apply to them.

16. Accordingly, the Tribunal finds that for the purposes of this review, China is the receiving country.

    Protection claims

17. The applicant’s protection visa application forms outline the protection claim/s.

18. In the relevant Form, the applicant identified “China (PRC)” (in response to question number 43), as the country from which protection in Australia is being sought.

19. In response to question 44 (Why did you leave that country?) the applicant writes:

    “I was born in [Village 1], [Town 1], Fujian City, Fujian Province, China. My mother was a teacher at [Village 1] Primary School, the only primary school in my home village. Many villagers, including myself, were students of my mother, and she enjoyed a good reputation.

    My father, however, was a drunkard. He often beat up or mistreated my mother after he got drunk. It was quite common in the rural area like my hometown, which was simply regarded as ‘domestic dispute’ instead of ‘domestic violence’. The police or local officials failed to genuinely protect or help my mother through my mother reported them about her sufferings for many times. In the end, my mother had to divorce my father in 2000.”

20. In response to question 45 (Have you experienced harm in that country?) the applicant selected the box “No” and writes:

    “After my parents divorced, my brother and I followed my mother and lived together with her. A primary school teacher’s income was very low in rural areas, and my mother had to resign from [Village 1] Primary School and went to Fuzhou, the Capital of Fujian province, in order to make more money for raising me and my brother. My maternal grandmother looked after me and my brother at home. It was because of my having stayed together with my maternal grandmother for many years that I had a deep affection for her.

    In Fuzhou, my mother was a maid, working and living at someone’s home. As she was not only well-educated but worked very hard as well, my mother could easily find jobs with no bad income. One of my mother’s employers was [Ms A] who ran [company] in Fuzhou. My mother worked at her home for several years. They both became close friends later on. Through [Ms A]’s connection, my mother found a person who was able to organise my study in Australia, because my mother, who used to be a teacher, always expected me to have an opportunity to accept better education. Having been planned and organized by [Ms A]’s friend, I got my passport and my student visa. [In] October 2008, I arrived in Australia.”

21. In response to question 46 (What do you fear may happen to you if you go back to that country?) the applicant writes:

    “After I arrived in Australia, I was subjected to many difficulties. I knew that my mother had spent a lot of money for my study in Australia, and that she placed great hopes on me. However, I was really unable to catch up on the class owing to my poor English, and it made me suffer from more and more pressure.

    [In] December 2009, I went back to China, as I really felt unwell by myself. Furthermore, my maternal grandmother was sick, and I wanted to see her and look after her together with my mother who had also returned to my home village at that time. I cam to Australia again [in] March 2010. Before that, I tried to persuade my mother to let me remain in China, but my mother insisted that I should continue my study in Australia. She said that she and my family including myself would lose face in my hometown if I failed to complete my study successfully.

    However, it was extremely hard for me to continue my study, and I had to stop it not long after I arrived in Australia. But, I dared not let my mother know the truth for quite a long time, because I did not want to make her upset.”

22. In response to question 47 (Who do you think may harm/mistreat you if you go back?) the applicant writes:

    “In 2011, my mother returned to my home village and decided to stay there permanently, because my maternal grandmother’s health got worse and worse and my mother had to take care of her. After then, my mother worked as a private teacher to assist these children, who wanted to enter good middle school, to prepare their entrance examination. [Ms B], a parent of one of my mother’s students, was a devout Christian, and an activist of the Local Church (a.k.a. “Shouters”). After [Ms B] developed a close relationship with my mother, she began to evangelize to my mother. As a matter of fact, my mother experienced a lot and suffered from various difficulties for years. She was always eager to have strong support. She was eventually moved by [Ms B] and became a Christian of the Local Church in 2012.”

23. In response to question 48 (Why do you think this will happen to you if you go back?) the applicant writes:

    “After my mother became a Christian, she evangelized to me and persuaded me to go to the Local Church in Australia. Actually, I was also subjected to many difficulties in Australia. I often felt lonely and helpless. I needed help and support. Therefore, I followed my mother's advice and started attending the church in December 2012.

    In February 2013, I got to know my partner [the second applicant]. We both fell in love at first sight. We really intended to get married, but we were advised that we could not do so as my partner did not have his passport and also did not have his birth certificate. On [date], our son [the third applicant] was born in Australia.

    Around June 2013, my mother established a women meeting group of the Local Church at [Village 1] together with her close friend [Ms B], and the meeting group was developed to over 30 members in the end.

    One of villagers at [Village 1] was [Ms C]. Her husband was an official of [Town 1] township government. But, just like my father previously, [Ms C]'s husband was a drunkard and always mistreated her after he got drunk. As a victim of "domestic violence", my mother felt very much sympathy with [Ms C]. She many times accompanied [Ms C] to approach the Public Security Bureau (PSB) or relevant government agencies. However, neither the PSB nor the relevant government agencies offered any actual helps, as it was still regarded as "domestic dispute" instead of "domestic violence" in the - rural area.

    [Ms C] was an orphan. She was particularly afraid of her husband's official background. She therefore dared not to divorce her husband. But, she finally could not bear her husband's long-term mistreatment. In October 2014, she committed suicide.”

24. In response to question 49 (Do you think the authorities of that country can and will protect you if you go back?) the applicant selected the box “No” and writes:

    “The death of [Ms C] made my mother very upset. She believed that more women would become victims of "domestic violence" if we always kept silent about. With my mother's strong influence among the local villagers, my mother, together with her close friend [Ms B], organized the women in [Village 1] to approach [Town 1] township government and Fuqing municipal government, demanding the government to investigate [Ms C]'s case, to take genuine attempts to stop "domestic violence", and to protect the basic human rights of women in the rural area soon after [Ms C]'s death in October 2014.

    [In] November 2014, my mother and [Ms B] had to organize most of women in [Village 1] to have a protest in front of [Town 1] township government, as the government failed to do anything after [Ms C]'s death. Unfortunately, the protest was suppressed by the police. My mother and [Ms B] were arrested, as they were accused of organizing "illegal" activities to harm social security.

    [Also in] November 2014, my home at [Village 1] was thoroughly searched by the police. The police eventually found the Recovery Version of the Bible used by the Local Church as well as other promotion materials of the Local Church. Since then, my mother has been accused of using "Evil Cult" to organize "anti-government" activities. Right now, my mother is in custody at Fuqing detention centre together with [Ms B].

    On [date] November 2014, my maternal grandmother passed away, as she was deeply hurt by the tragedy of my mother.

    As I have sent some materials of the Local Church to my mother from Australian, and those .materials have been discovered by the police when they searched my home, I fear that I must be implicated by my mother's case and that I - must be arrested and imprisoned by the police in China.

    Moreover, my partner and I have a child born out of wedlock. We will be forced to pay the social compensation fee if we go back to China. We are obviously unable to afford it, and consequently our son must become a "black child" who will be unable to survive in China.

    I, therefore, have to seek protection in Australia.”

25. In response to question 50 (Do you have any documentary evidence to support your claim for protection – including but not limited to membership cards, court documents, photographs, press articles?) the applicant selected the box “No”.

26. The above written claims are the applicant’s protection claims (verbatim) and the totality of the evidence available for consideration by the Minister’s delegate in respect to the applicant’s protection application). No documents or other evidence were provided by the applicant prior to consideration of her claims (by the Minister’s delegate).

    Interview

27. The applicant was invited to attend an interview as part of the delegate’s consideration of his Protection visa application.

28. The applicant attended an interview on 31 May 2017 with the assistance of an interpreter.

29. The information provided at that interview is contained in the Decision record dated 21 June 2017 made by the delegate, and form part of this review.

    Tribunal hearing

30. As the Tribunal was unable to make a favourable decision on the information before it alone, on 3 March 2021 the Tribunal invited, and the applicant attended, a hearing on 17 March 2021 and provided oral evidence and argument(s) in support of the parties protection claims.

31. The applicant was assisted during the hearing by an interpreter, who the applicant confirmed to the Tribunal, she understood.

32. The applicant told the Tribunal she believed the decision of the Department was unfair. The applicant told the Tribunal she believed she complied with the definition of a refugee in the “true sense”. The applicant said she is truly a member of her local church. The applicant said she has tried her best to provide evidence of her mother’s arrest, though “she can’t”. The applicant said now her mother has been released, though they are still harassing her, and have not provided her with anything. The applicant said the authorities have kept approaching her mother and making threats to her and monitored her activities. The applicant said under such circumstances it would be impossible for her mother to go to the church anymore, though she would love to see god, and she is concerned about her safety. The applicant told the Tribunal she is fearful to go back to China because she would have her face at the same local church, even though the church is not under the administration by local authorities. If she returned to China she would attend church, even though it is condemned “as a cult”. The applicant said her mother said the law since 2018 specifically targets churches like theirs in China. The applicant said it was only in 2014 that she started to feel the danger she would be faced with, and that’s why she lodged her protection application the following year. The applicant explained she’d sent some material to her mother, which means she believes she’d be arrested if she returned. The Tribunal asked how the authorities would know she had sent these items. The applicant told the Tribunal her mother was arrested in a protest, and there were a number of people arrested at the same time, and some of these people told the policeman. The Tribunal asked whether any of the items she claims to have sent to her mother in China were illegal material as declared in China. The applicant replied the authorities consider the bible (and other materials) as illegal, as it is from a cult. The Tribunal clarified it was a restorative bible, and other material “reviving holy word” which she sent (and are specifically prohibited by the local authorities in China). The Tribunal asked the applicant, if they are prohibited items in China, why did she send them? The applicant told the Tribunal in China they were in desperate need for such books, and her mother was desperately eager to achieve better union with the Lord. The applicant told the Tribunal she had concerns over the safety of the postage material, so when she posted it she didn’t leave her name, or leave her mother’s name as the receiver, but sent to a friend of her mother’s in an accounting firm under another name.

33. In respect to the country information, the applicant says her church is considered a ‘shelter’ in China, and therefore are considered the number one “cult” in China. The Tribunal asked pointed out to the applicant that the country information contradicted her claims with respect to whether she could go about her religious activities, and in respect to her child’s rights to be registered and receive government support and services, including being formally registered in the household (in China).  The applicant told the Tribunal she believes the local authorities would refuse to provide household registration for her child in China. The applicant said she believed the Department had not taken into consideration, and that the authorities would further prosecute herself and her child based on her religious beliefs. Referring to her mother, the applicant said her mum can’t go anywhere at this time, except working on her farmland, and her human rights are being seriously violated. The applicant said if she returns to China, she will face the same persecution.

34. The Tribunal enquired whether she and her partner were in fact still de facto or married. The applicant appeared to indicate she and the second-named applicant were married, but had lost their marriage certificate, and the second-named applicant had lost his passport, and she was too fearful to enter the Chinese Embassy in Australia to obtain another one for him for fear she’d be arrested.

35. The Tribunal clarified with the applicant’s representative whether there was any further oral evidence to be provided by any other person or applicant. The representative did not seek to provide any further oral evidence from any person, though referred to statements provided pre-hearing, which had been received and have been considered as part of this review. 

36. The applicant’s Protection visa application has been decided on all the available information in the applicant’s protection visa application and the oral evidence and argument(s) as presented at the hearing conducted by the Tribunal on 17 March 2021.

    Analysis

37. The Tribunal notes there is no statement (or any other supportive evidence of any kind) from any other person which confirms the applicant’s claims in respect to the local authorities actions against her mother (past or more recent), including no document or statement from either her mother, or her brother - who the applicant claimed during her interview with the Department had visited their mother while she was in prison.

1. There is sufficient evidence which indicates the applicant is a member (or at the very least an attendee) of a Local Church (in Melbourne), though she has still not provided any evidence she was baptised, though she claims to have been. Various statements have been provided to this Tribunal by the applicant, from her fellow believers. This is in addition to a letter the applicant provided previously from “Church in Melbourne” and various video clips, most recently including activities held by the church and her family’s participation therein.

2. There is no evidence whatsoever (outside the applicant’s brief written claims as detailed above – and again repeated during the interview conducted by the Department and during this Tribunal’s hearing held 17 March 2021) that her mother was ever detained, threatened or abused/assaulted or threatened, or was/has ever been targeted by police (or by other local authorities or officials) in China because of her claimed religious belief.

3. The applicant claims her son (the third named applicant) risks harm because he is a ‘black child’. Unregistered children born in China require registration for their child in the form of an ‘hukou’ (as essential identity document), though the parents of the third named applicant, it is claimed, would be required to pay substantial fines, and may be denied household registration and thus may be denied access to health, education and other basic services. However, the country information clearly indicates this claim is not consistent with DFAT advice (and report) dated 24 March 2016 which states the Fujian Public Security Department’s ‘newly’ implemented provincial Household Registration Management system means the third named applicant “should now have access to household registration, whether or not they pay the fee” (also referred to in the Decision record of the delegate).

41.   There is no evidence beyond the applicant’s oral claims that she has faced any threat whatsoever from any person in China, or elsewhere. The claims by the applicant that items she sent to her mother (though unaddressed and via a third-party) may cause the police to arrest her upon her return to China have been made without any corroboration. The applicant also has no evidence she sent the claimed items, or (at least) any statement by any person (including her mother or church followers outlining how they informed the authorities that the items came from the applicant) after it was claimed the police found them in her mother’s home.

42.   The country information made available to the applicant clearly indicates that local authorities in Fujian generally tolerate the operation of discrete churches and smaller prayer meetings. In this regard the applicant has not satisfied the Tribunal that her mother’s church has been classified as an ‘evil cult’ (the applicant’s description). None of the evidence provided (outside the oral claim by the applicant) supports or corroborates this claim, or provides a coherent account of why Chinese authorities have specifically targeted her mother’s church and followers.

Credibility

1. In determining whether an applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal is also mindful that if it makes an adverse finding in relation to a material claim made by the applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[1]

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

2. However, the Tribunal is not required to uncritically accept all, or any, of the claims made by an applicant[2] or have rebutting evidence available to it before it can find that a particular fact asserted by an applicant has not been made out.[3] The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either ‘well-founded’ or for the reason claimed.

   [2] SZLVZ v MIAC [2008] FCA 1816 at [24] per Middleton J (SZLVZ v MIAC) at [25].

   [3] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

3. Similarly, that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[4]

   [4] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70

4. Although the concept of an ‘onus or burden of proof’ is one that is buried in the practice and procedure of superior courts of law[5] and, as a general proposition, has no application to administrative decision-making,[6] there is no burden upon the Tribunal to make out a case that an applicant has failed to adequately advance.[7] 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 that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.

   [5] Sun v MIBP [2016] FCAFC 52 (Sun v MIBP) at [63] per Flick and Rangiah JJ.

   [6] Sun v MIBP at [6] per Logan J and [65] per Flick and Rangiah JJ; SZLVZ v MIAC at [24] per Middleton J citing Yao-Jing v MIMA (1997) 74 FCR 275 at 288.

   [7] Sun v MIBP at [69] per Flick and Rangiah JJ; SZLVZ v MIAC citing Prasad v MIEA (1985) 6 FCR 155 at 170.

5. While it is inappropriate for the Tribunal to require particular evidence as a precondition for accepting that an applicant’s claims are true,[8] it is a generally-expressed and recognised principle that it is for an applicant to provide his or her evidence and arguments in sufficient detail to enable the Tribunal to establish the relevant facts.[9] As Kirby J observed in Dranichnikov v MIMA:[10]

   [8] Machmud v MIMA [2001] FCA 1041.

   [9] Aporo v MIAC (2009) 113 ALD 46; [2009] FCAFC 123 Spender, Moore and Foster JJ and Sun v MIBP at [69] per Flick and Rangiah JJ; SZLVZ v MIAC citing MIMIA v Lat (2006) 151 FCR 214.

   [10] [2003] HCA 26 at [78], (2003) 77 ALJR 1088 at 1100.

   The Tribunal acts in a generally inquisitorial way. This does not mean that a party before it can simply present the facts and leave it to the Tribunal to search out, and find, any available basis which theoretically the Act provides for relief. [The High Court] has rejected that approach to the Tribunal's duties. The function of the Tribunal … is to respond to the case that the applicant advances …[11]

   [11] As cited in Sun v MIBP at [69] per Flick and Rangiah JJ.

48.   The total absence of supportive material advanced by the applicant, and the paucity of detail accompanying each aspect of her claims means the Tribunal cannot reasonable accept may of the applicant’s claims on the evidence before presented.

Findings of Fact on Relevant Matters

49.   The Tribunal accepts the applicant is a believer, regardless of whether she has a baptism certificate which attests to such (and based on all the information, and oral evidence the applicant has consistently provided, including during an interview with the Department).

50.   The Tribunal does not accept the applicant’s mother was imprisoned or targeted in any way by Chinese authorities, or that she was a focus of the authorities because of her religious beliefs or activities. Put simply, the applicant has simply not provided the evidence which supports these aspects of her claim.

51.   The applicant did not send ‘items’ to her mother, and even were the Tribunal to accept she did, the Tribunal has not been satisfied those ‘items’ have been connected in any way to the applicant (much less connected to her by local police), as they were sent anonymously, via a third-person, and the claim by the applicant that a friend of her mother’s told the police where the ‘items’ came from, has not been established beyond an unsubstantiated claim.

52.   The third-named applicant will not be denied access to household registration as claimed.

53.   The Tribunal has notes the applicants religious practices and activities in Australia, namely their religious adherence, though considers (based on the evidence provided) that there is nothing in their practices or activities in Australia that would lead to a real chance of serious harm on return to China.

Refugee Criteria

54.   Under s.5J(1), a person has a ‘well-founded fear of persecution’ if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person is taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-5LA.

55.   In determining whether an asylum seeker has a ‘well-founded fear of persecution’ s.5J(1)(a) contains a subjective requirement that an applicant, in fact, holds a fear of being persecuted.

56.   Further, s.5J(1)(b) imposes an objective standard that there be a real chance the applicant will be persecuted if returned to his or her receiving country. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility.  However, a person can have a well-founded fear even if the possibility of the persecution occurring is well below 50%.

57.   The Tribunal finds the applicant (including the second-named or third named applicant) does not have a genuine fear of being persecuted. Based on the Tribunal’s findings above there is no reason any of the applicants would have the subjective fear of being harmed in the foreseeable future contemplated in s.5J(1)(a) of the Act. On the basis of the findings of fact above, the Tribunal also finds that the applicants do not have a real chance of suffering any harm, let alone serious harm, in the foreseeable future and therefore do not meet s.5J(1)(b).

58.   The applicants do not have a well-founded fear of persecution as defined in s.5J of the Act. Therefore, they do not meet the meaning of ‘refugee’ set out in s.5H of the Act.

Complementary Protection Criteria

1. Section 36(2)(aa) requires an applicant to have a ‘real risk’ of suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.

2. Therefore, for the reasons above the Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to China, there is a real risk the applicants will suffer significant harm.

   Conclusions

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

62.   Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

63.   There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s.36(2).

DECISION

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

   Nicholas McGowan
   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.

   …