1715136 (Refugee)

[2024] AATA 1586

1715136 (Refugee) [2024] AATA 1586 (19 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Pei Ling Zheng (MARN: 0323862)

CASE NUMBER:  1715136

COUNTRY OF REFERENCE:                   China

MEMBER:Jason Pennell

DATE:19 February 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act 1958 (Cth).

Statement made on 19 February 2024 at 1.05pm

CATCHWORDS

REFUGEE – protection visa – China – religion – Christian – local church – detention – physical assault – local church involvement in Australia – sinicization policy – member of the family unit – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

Chan v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Pei Lan He v MIMA [2001] FCA 446
Prasad v MIEA (1985) 6 FCR 155
Savvin v MIMA [1999] FCA 1265
VCAD v MIMIA [2004] FCA 1005
W161/01A v MIMA [2002] FCA 285
WZAOO v MIAC (2012) 134 ALD 332

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.

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 7 July 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2.The applicant who claims to be a citizen of China applied for the visa on 1 July 2015. The delegate refused to grant the visa on the basis that the applicant was not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act.

3.The applicant appeared initially before the Tribunal via MS Teams on 24 February 2021 to give evidence and present submissions in support of her review application. The member constituted to hear the matter departed the Tribunal without determining the application. As a result, the applicant’s review application was constituted to a new member. The applicant appeared before the Tribunal on 12 February 2024 to give evidence and make submissions in support of her review application in person.   The Tribunal also received oral evidence from the applicant’s husband, [Husband A].

4.On 17 June 2021 the Tribunal (differently constituted) made a decision remitting the department’s decision to refuse [Husband A’s] application for a protection visa with a direction that he satisfied s 36(2)(a) and s 36(2)(aa) of the Act (‘the [Husband A] Decision Record’).[1] A protection visa was granted to [Husband A] on 4 January 2022 and is currently in effect.[2]

[1]    AAT Decision Record dated 17 June 2021; AAT file No 1715431.

[2]   ICSE Check [Husband A] dated 13 February 2024.

5.The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6.The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

CRITERIA FOR A PROTECTION VISA

7.The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.

8.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.

9.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).

10.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.

11.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

12.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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

APPLICANT’S CLAIMS AND EVIDENCE

Applicant’s identity and country of reference

13.The applicant claims that she was born on [date] Fuqing City Fujian Province, China[3] and claims to be a citizen of China. The applicant provided a copy of the biodata page of her Chinese passport to the Department that confirms the date and place of her birth as claimed.[4] There is no evidence to suggest this document is a bogus document. As such, the Tribunal accepts applicant’s identity as claimed.

[3]    Protection visa application form, Dept file [number], Doc ID no: 8095792.

[4]    Certified copy of passport of [applicant’s name variant], Dept file [number], Doc ID no: 8095792.

14.There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the documents provided to the Tribunal it finds that the applicant is a citizen of China and as such her protection claims will be assessed against China as the country of reference and ‘receiving country’ respectively.

Applicant’s migration history

15.The applicant first arrived in Australia [in] April 2015 on a Visitor (Class FA Subclass 600) visa. She applied for a protection visa on 30 June 2015. She has not departed Australia since her arrival.

Member of the same family unit

16.The applicant’s and [Husband A’s] evidence was that they were married in [Village 1] [Town 1], Fuqing City Fujian China [in] April 2009.[5] As a result the applicant has [specified children] born in [specified years] in Fuqing City China. The applicant provided a copy of [one child’s] birth certificate[6] and a copy of her marriage certificate[7] to [Husband A]. However, the statement of [Person A] confirms that the applicant and [Husband A] are married.[8] In addition, the [Husband A] Decision Record confirms that [Husband A] is married to the applicant, and that they have [number] children.[9] Therefore, based on the evidence provided to the Tribunal it accepts that the applicant and [Husband A] are married and that they have [number of children] as claimed.

[5]    Protection visa application form, Dept file [number], Doc ID no: 8095792.

[6]    Birth Certificate AAT file No 1715136, Doc ID no: 12113360

[7]    Marriage certificate AAT file No 1715136, Doc ID no: 121113681

[8]    Statement of [Person A]: AAT file No 1715136, Doc ID no: 11881014.

[9]   AAT Decision Record dated 17 June 2021; AAT file No 1715431.

17.Sections 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 reg 1.12 of the Regulations to include a spouse or de facto partner of the applicant and/or a child or stepchild of the applicant.[10]

[10]  Migration Regulations 1994 (Cth), reg 1.12(2).

18.Based on the evidence provided by the applicant and [Husband A] in relation to the identity of the applicants, the Tribunal finds that pursuant to reg 1.12 of the Regulations, the applicant is a member of the same family unit as [Husband A]. 

Applicant’s claim for protection

19.The applicant’s claims for protection were provided to the Department in her protection visa application as follows:[11]

[11]  Protection visa application form, Dept file [number], Doc ID no: 8095792.

Why did you leave that country(s)?

I left China on a visitor visa. While I was in China, I was dedicated Christian, and I have been following my parents when I was young to practice our religious belief in the underground local church in Fuqing City Fujian Province China. In the process of pursuing my religious belief, I had encountered great difficulties on [a day in March] 2015 when I was arrested and detained by Fuqing Public Security Bureau officers and I was detained for [number] days. I was warned by the police officers not to continue to attend underground church activities in China, otherwise I will bear more serious consequences if I was caught again. I had since engaged an agent to apply on my behalf for a visitor visa to come to Australia.

What do you think will happen to you of you return to that country(s)?

I am concerned that if I return to China in the foreseeable future, I will definitely continue to attend our local family church activities in China. Until now, local family church is still banned by the authority and anyone who is caught for attending unregistered church gathering is subject to arrest and detention by Chinese authority.

Did you experience harm in that country(s)?

Yes. While I was participating in our underground church h=gathering in Fuqing, together with other local church goers, I was arrested and taken to Public Security Bureau for interrogation before being placed in the custody centre in Fuqing where I was detained for a week. I was harassed, threatened and assaulted by the custody officers and I was warned to keep distance from our underground church in Fuqing in the future, otherwise, if I was caught again, I can be sentenced to jail imprisonment.

Did you seek hep within that country(s)?

No. I have nowhere to seek help while I was in China.

Did you move, or try to move, to another part of the country(s) to seek safety?

No. The whole of China is under the ruling Communist Party. Nowhere in China is exempt from persecution so long as local family church remained banned by the authority.

Do you think you will be harmed or mistreated if you are returned to that country(s)?

As a loyal local family church member, I am unwilling to change my religious belief and attend government registered churches, there is strong chance that I will be arrested and detained by Chinese authority again in the future if I continue my religious practice in China at the underground church.

Do you think the authorities of that country(s) can and will protect you if you go back?

No. Only those churches that are registered with Three Self patriotic Associations are protected by Chinese authority. Chinese authority will persecute out local family church.

Do you think you would be able to relocate within that country(s)?

No. There is strict household registration systems in China which will make it difficult to relocate from one place to another.

20.The delegate summarised the applicant’s claims as follows: [12]

·She is a dedicated Christian and practiced in an underground local church in Fuqing City.

·On [a day in] March 2015 she was arrested and detained by Fuqing public security bureau officers and detained for [number] days. She was released with a warning not to continue with anymore underground church activities.

·She fears returning t Cgina as she may be arrested by the Chinese authorities for attending local family church activities, as she will continue practicing of she returned home.

·She does not think anyone could protect her as the local church is banned by the Communist Party which rules China.

[12]  Delegate’s decision record AAT file No 1715136, Doc ID no: 3559938.

Applicant’s evidence

21.The applicant’s evidence was that she was born on [date] in Fuqing City Fujian Province, China.[13] She is ethnic Han and speaks, reads and writes Mandarin.

[13]  Protection visa application form, Dept file [number], Doc ID no: 8095792.

22.The applicant’s evidence was that she was born into a devoted Christian family. Her parents continue to live in Fuqing City. Her father worked as a [farmer] and her mother was engaged in home duties. The applicant has [a sibling] who continues to live in Fuqing City.  [The sibling] is married and works as [an occupation] in [a] business.

23.The applicant was educated in China having attended [School 1] [between specified years] and [School 2] [between specified years].  The applicant did not attend College or University.

24.The applicant’s evidence was that after completing school she commenced work as [an occupation] in [industry 1]. Her evidence was that she worked in various [places] as [an occupation] until her departure for Australia.

25.The applicant was married to [Husband A] [in] April 2008 in Fuqing City. They have [number of children] who were born in [specified years]. They currently attend school in Australia.

26.The applicant’s evidence was that she is a devoted Christian and was a member of the local church in China. The applicant’s evidence was that the local church in China follows the teachings of Watchman Nee and Witness Lee. Watchman Nee founded the local church in Fuzhou City Fujian Province China in 1922. He was imprisoned in the 1950s for his beliefs. Witness Lee established the local church in the USA in 1962 which was introduced to China in 1979. He passed away in 1997. The local church teachings are founded on the New Testament and are referred to as the ‘Shouters’ because they share their experience of Jesus as a community and pray out loudly.[14]  

[14]  Applicant’s statutory declaration dated 8 June 2021 AAT File No 1715136 DOC ID:8511710.

27.The applicant’s evidence was that in China, in addition to the regular Sunday church service, she would also attend and participate in a prayer group meeting and Bible study classes each week. The church service and meetings were all conducted in the homes of church members. The applicant’s evidence was that since her arrival in Australia, she has continued to attend the local church in [Town 2], Victoria[15] on a weekly basis including Bible study groups and prayer group meetings. The applicant’s evidence was that she attends the church 2 or 3 times per week and has participated in 3 national Blending Conferences in Sydney.[16] The applicant provided various photos of her engaged with other members of the local church in [Town 2].[17]

[15]  Statement by [Person A] and [Person B] dated 7 February 2021.

[16] Applicant’s statutory declaration dated 8 June 2021; AAT File No 1715136 DOC ID:8511710.

[17]  Various Photos: AAT file No 1715136, Doc ID no: 11881014.

28.The applicant’s evidence was that on [a day in] March 2015 she was participating in a youth worship group as part of her local church activities. The meeting commenced at approximately 7.30pm and was conducted in a church member’s home in [Village 2], [Town 1], Fuqing City. Approximately 20 people attended the meeting. The applicant’s evidence was that the meeting was raided by 4 or 5 officers of the Fuqing Public Security Bureau, a result of which she was detained, with 5 other church friends, for a period of [number] days.[18] The applicant provided a letter from [Friend A], a friend who was detained with the applicant and a document entitled ‘Certificate of Release from Detention’[19] in support of her claim that she was detained.

[18]  Applicant’s statutory declaration dated 10 February 2021; AAT file No 1715136, Doc ID no: 8096398.

[19]  Applicant’s Certificate of Release from Detention dated [in] March 2015; AAT File No 1715136 DOC ID: 8096441.

29.The applicant’s evidence is that she was held in [Prison 1] for [number] days where she was interrogated by 2 officers. She was separated from her friends and held in a cell with other prisoners. During her interrogation, she was beaten and threatened. The evidence of both the applicant and [Husband A] was that while she was being detained, he was in [a named city] on a business trip. As a result, her mother contacted him to return to help her be released from prison. The applicant stated that she was released after [number] days due to lack of evidence. Upon being released she was threatened by the officers that if she continues be involved in the local church in the future she will be detained for a longer period and possibly be sent to jail.[20]

[20] Applicant’s statutory declaration dated 8 June 2021; AAT File No 1715136 DOC ID:8511710.

30.Both [Husband A] and the applicant gave evidence that [Husband A] had also been detained [in] January 2015.[21] As a result, they were both extremely concerned for their safety in China and looked for a way of escaping the country.[22] The applicant made an application through an agent and her application for a visa was approved on 26 March 2015 and she travelled to Australia in April 2015.[23]  [Husband A] was forced to travel via [Country 1], where he remained for 7 months before joining the applicant in Australia.[24]

[21] Ibid.

[22]   Applicant’s statutory declaration dated 10 February 2021; AAT file No 1715136, Doc ID no: 8096398.

[23] ibid.

[24] AAT Decision Record dated 17 June 2021; AAT file No 1715431.

31.The applicant claims that if she is returned to China there is a real chance she will be seriously harmed as a Christian and because of her involvement in the local church.

Applicant’s supporting documentation.

32.The applicant provided the following additional material to the Department and Tribunal in support of her protection claims:

(a)Various photos of the applicant at church in Australia.[25]

[25]   Various Photos: AAT file No 1715136, Doc ID no: 11881014.

(b)Statement of [Person A] dated 11 April 2023.[26]

[26]   Statement of [Person A]: AAT file No 1715136, Doc ID no: 11881014.

(c)Various media articles concerning treatment of local church members in China.[27]

(d)AAT decision [Husband A] dated 17 June 2021.[28] 

(e)Photos of applicant attending wedding at church.[29]

(f)Applicant’s statutory declaration dated 8 June 2021.[30]

(g)Various news articles.[31]

(h)Applicant’s Certificate of Release from Detention dated [in] March 2015 (with English translation).[32]

(i)Statement by [Person A] and [Person B] dated 7 February 2021.[33]

COUNTRY INFORMATION

[27]   Media articles AAT file No 1715136, Doc ID no: 11881014.

[28]  AAT Decision [Husband A] dated 17 June 2021; AAT File No 1715136 DOC ID: 8692882.

[29]  Photos at church: AAT File No 1715136 DOC ID: 8108430.

[30]  Applicant’s statutory declaration dated 8 June 2021; AAT File No 1715136 DOC ID:8511710.

[31]  News Articles AAT File No 1715136 DOC ID:8511710.

[32]  Applicant’s Certificate of Release from Detention dated [in] March 2015; AAT File No 1715136 DOC ID: 8096441.

[33]  Statement by [Person A] and [Person B] dated 7 February 2021; AAT File No 1715136 DOC ID 8096401.

1. In accordance with Ministerial Direction No.84 of 24 June 2019 under s 499 of the Act, the Tribunal also had regard to the country information assessments prepared by DFAT. The Tribunal has referred to the current DFAT report on China dated 22 December 2021 (the DFAT report).[34] In particular, the Tribunal has considered those parts of the DFAT report as detailed in Annexure ‘A’ of these reasons.

   [34]  DFAT Report on China, dated 22 December 2021.

   CONSIDERATION OF CLAIMS AND EVIDENCE

2. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded to remit the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Act.

   Credibility

3. When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.

4. The mere fact that a person claims fear of persecution for a 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 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 enough 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.[35] Nor is the Tribunal required to accept uncritically all the allegations made by an applicant.[36]

5. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[37] Care must be taken not to exclude from consideration the totality of evidence where a portion of it could reasonably have been accepted.

   [35] Section 5AAA, Migration Act 1958 (Cth).

   [36] 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.

   [37] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 per Foster J at 482.

6. If the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[38] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.

   [38] The United Nations High Commissioner for Refugees’ (UNHCR) Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196.

   Applicant’s refugee claim

   A past fear of persecution is not sufficient

7. A past fear may be a relevant consideration in determining if an applicant has a well-founded fear of persecution. The applicable approach under the Act is whether the applicant is outside his or her country owing to a present, well-founded fear of persecution for a reason that falls within the scope of s 5J(1) of the Act and he or she is unable or unwilling, due to the present and well-founded fear, to avail himself or herself of the protection of that country.[39]

   Applicant’s relevant grounds

   Applicant’s religion

   [39]  Section 5H(a) of the Act. (see as to Art1A(2) of the Convention, Savvin v MIMA [1999] FCA 1265 (Dowsett J, 13 September 1999) at [61]–[62], referring to Chan v MIEA (1989) 169 CLR 379, s 5H of the Act).

8. The applicant claims that there is a real chance she will be seriously harmed if she is returned to China because of her religion as a devoted Christian. An overview of the scope of ‘religion’ as a refugee ground can be found in the UNHCR Handbook. It states:

   The Universal Declaration of Human Rights and the Human Rights Covenant proclaim the right to freedom of thought, conscience and religion, which right include the freedom of a person to change his religion and his freedom to manifest it in public or private, in teaching, practice, worship and observance.

   Persecution for “reasons of religion” may assume various forms, e.g. prohibition of membership of a religious community, of worship in private or in public, of religious instruction, or serious measures of discrimination imposed on persons because they practise their religion or belong to a particular religious community.

   Mere membership of a particular religious community will normally not be enough to substantiate a claim to refugee status. There may, however, be special circumstances where mere membership can be a sufficient ground.[40]

   [40] UNHCR Handbook on Procedures and Criteria for Determining Refugee Status at [71]-[73].

   41.The question of whether an applicant has a well-founded fear of persecution for reasons of religion will often depend on the motivation of the persecutor. In circumstances where a fear is caused by the operation of generally applicable laws, it will depend on a persecutory intent or nature to those laws or to the way they are applied.[41] Therefore, persecution for reasons of religion can arise in many ways including the application of generally applicable religious-based laws, departing from orthodox religious beliefs or transgressing social mores, conversion, apostasy[42] and mixed marriage. It requires an assessment in the light of all the circumstances, including, where relevant, the ‘central tenets’ of the religion, how the applicant would be likely to manifest his or her religious beliefs and the likelihood of that manifestation attracting a persecutory reaction from the authorities.[43]

   [41]   See VCAD v MIMIA [2004] FCA 1005 (Kenny J, 4 August 2004) at [35].

   [42] To be an apostate does not require conversion from one faith to a different faith but does require abandonment or rejection of the first faith: WZAOO v MIAC (2012) 134 ALD 332 at [12] & W161/01A v MIMA [2002] FCA 285.

   [43]   Pei Lan He v MIMA [2001] FCA 446 (Ryan J, 23 April 2001).

   42.In this case the applicant claims that she is a devoted Christian.  As such, it’s claimed that she will be seriously harmed if she is returned to China as a Christian and member of the local church.  Based on the applicant’s evidence, the Tribunal accepts that her claim falls within s 5J(1)(a) of the Act by reason of religion.

   The applicant’s well-founded fear

   43.In Chan v MIEA[44] the Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Justice Dawson noted that the phrase ‘well-founded fear of being persecuted…’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[45]

   [44] (1989) 169 CLR 379 at 396.

   [45] (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.

   44.The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact. In this case, based on the evidence of the applicant, the Tribunal accepts that the applicant has a subjective fear of being harmed or being persecuted if she returns to China.

   45.However, to hold a ‘well-founded fear of persecution’ on an objective basis the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J[46] stated:

   “Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.

   [46] Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397.

   46.In MIEA v Guo, the Court stated that:[47]

   Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is ‘well-founded’ when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.

   [47]  MIEA v Guo (1997) 191 CLR 559 at 572; cfMIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.

   47.The applicant claims there is a real chance she will be seriously harmed if she is returned to China. Having considered the applicant’s evidence together with the available country information, for the reasons expressed below, the Tribunal does accept that the applicant has a well-founded fear of persecution on a subjective and an objective basis for the reasons mentioned in s 5J(1)(a) of the Act.

   Accepted facts.

   48.Based on the applicant’s and [Husband A’s] evidence to the Tribunal, the Tribunal finds and accepts that:

   (a)The applicant was born on [date] in Fuqing City Fujian Province, China.[48]

   (b)The applicant is ethnic Han.

   (c)The applicant is a Christian.

   (d)The applicant’s parents continue to live in Fujian Province China.

   (e)The applicant has a [sibling].  

   (f)The applicant attended [School 1] and [School 2]. 

   (g)The applicant married [Husband A] [in] April 2008 in Fuqing City and they have [number of children].

   (h)The applicant worked in China as [an occupation] in [industry 1].

   [48]   Protection visa application form, Dept file [number], Doc ID no: 8095792.

   Applicant as a Christian

   49.The applicant claims that there is a real chance she will be seriously harmed if she is returned to China because she is a Christian and a member of the local church.

   50.The applicant’s evidence was that she is a devoted Christian and member of the local church. And that she attended the local church regularly in China. The applicant was able to give a detailed description of her involvement in the local church in China including the time, frequency, and location of her church attendance at Sunday services, prayer groups, Bible classes and youth group meetings. In addition, the applicant gave detailed evidence in relation to the manner by which each meeting was conducted and the number of church members in attendance. In addition, the applicant provided the Tribunal with witness statements and various photos that supported her evidence she was a member of the local church both in China and in Australia. Therefore, based on the applicant’s evidence and the documents provided to the Tribunal, it accepts and finds that the applicant is a Christian and a member of the local church as claimed.

   51.The applicant’s evidence in relation to being detained by the authorities was clear and concise. Her evidence was that she was at a local church youth group meeting on [a day in] March 2015 which was attended by approximately 20 church members. The meeting started at around 7.30pm and was held close to her home in [Village 2] at a church member’s home. The meeting was raided by 4 or 5 members of the Fuqing Public Security Bureau, resulting in great confusion and anxiety during the raid. The applicant was detained with 5 other church members and taken to the [Prison 1] where she was held for [number] days.[49] A letter from [Friend A], a friend who was detained with the applicant and a document entitled ‘Certificate of Release from Detention’[50] was provided by the applicant in support of her evidence that she had been detained as claimed. In addition, [Husband A] confirmed that the applicant was detained by the authorities and held in [Prison 1] for [number] days. Therefore, based on the applicant’s evidence and the supporting documentation provided the Tribunal accepts that the applicant was detained for [number] days at the [Prison 1] because of having attended the local youth group meeting as claimed.  

   [49]  Applicant’s statutory declaration dated 10 February 2021; AAT file No 1715136, Doc ID no: 8096398.

   [50]  Applicant’s Certificate of Release from Detention dated [in] March 2015; AAT File No 1715136 Doc ID: 8096441.

   52.The country information reports[51] that the constitution of the People’s Republic of China, states that citizens ‘enjoy freedom of religious belief’ but limits protections for religious practice to ‘normal religious activities’ without defining ‘normal’. Chinese Communist Party (‘CCP’) members and members of the armed forces are required to be atheists and forbidden from engaging in religious practices.[52] In addition the national law prohibits organisations or individuals from interfering with the state educational system for minors younger than the age of 18, the effect of which is effectively barring them from participating in most religious activities or receiving religious education. The Chinese government asserts control over religion and restricts any religious activity or personal freedom which may be perceived as threatening state or CCP’s interests.[53] Only one of the 5 state-sanctioned religions (Buddhism, Taoism, Islam, Protestantism, and Catholicism) are permitted to register with the government and hold worship services.[54]

   [51]  2020 US Department of State International Religious Freedom Report; ibid.

   [53]  ibid.

   [54]  ibid.

   53.The country information[55] reports that Christianity is growing rapidly in China. The estimated number of Christians in China varies. The Chinese Government has reported there are approximately 30 million Christians in China while the US Department of State International Religious Freedom Report has estimated there are around 70 million Christians in China.[56]   It is reported that the authorities have regulated Christianity to make it more ‘China-orientated’.[57] Bibles are becoming more difficult to obtain and Bible references are censored online.[58] The applicant’s evidence was that she was a member of the unofficial local church rather than being a member of an official registered Christian church because she claimed the authorities had too much influence over the registered churches.

   [55]   DFAT Report at p.16.

   [56]   DFAT report p.16; 2020 US Department of State International Religious Freedom Report;

   [57]   DFAT report p.16.

   [58]  ibid.

   54.It’s reported[59] that the police arrest and detain leaders and members of religious groups not registered with the state-sanctioned religious associations. It’s reported that the authorities used vague and fabricated criminal charges to detain, arrest, and sentence leaders and lay believers in their effort to suppress Christianity.[60] The police are violent towards those arrested and detained,[61] with continued reports[62] that those arrested are subjected to torture and physical abuse. It is reported[63] that deaths do occur while in custody. Finally, some of those arrested and detained are subjected to forced indoctrination in CCP ideology.[64]

   [59]  2020 US Department of State International Religious Freedom Report;   ibid; UCAnews ‘Report documents rampant Christian persecution in China’ 16 February 2023;   2020 US Department of State International Religious Freedom Report;   ibid.

   [63]  ibid.

   [64]   ibid.

   55.It’s reported that in recent times Christians in China have continued to face various forms of persecution including sinicization,[65] educational reforms, and widespread rights abuses coupled with stringent laws under the repressive regime of the CCP.[66] In 2022, CCP officials caused the demolition of a number of churches throughout the country.[67] For example in August 2022, the Catholic Diocese of Taiyuan’s Gothic-styled Beihan Church complex was torn down and in June 2022 the church in Hebei province’s Shijiazhuang city was demolished upon Bishop Dong Baolu’s refusal to join the state-run patriotic church system.[68]  In addition its reported that churches and Christian worship centres were demolished in Dalian, Jiangxi, Tongguan, Shaanxi, and other provinces.[69]

   [65]   Sinicization is the act or process of making something more Chinese in character or bringing something under Chinese influence.

   [66]  UCAnews ‘Report documents rampant Christian persecution in China’ 16 February 2023;   ibid.

   [68]   ibid.

   [69]   ibid.

   56.The applicant’s evidence was that if she is returned to China she will continue to be an active member of the local church. Her evidence was that she would continue to attend events and prayer groups within the church community to help spread the ‘good news of Jesus Christ’ more broadly. Based on the applicant’s evidence including her evidence concerning her involvement in the local church in Australia, the Tribunal accepts and finds that the applicant will continue to proselytise the Christian faith and the local church if she is returned to China.

   57.In circumstances where it is the state that has targeted Christians, the Tribunal finds that there is no effective state protection available to the applicant as a Christian and as an active member of the local church. In addition, the Tribunal is satisfied that the essential and significant reason she fears persecution in China is because of her religion. Finally, based on the available country information the Tribunal is satisfied that the persecution the applicant claims to fear is because of systematic and discriminatory conduct by the authorities in China for the purposes of implementing the policy of ‘sinicization’ aimed at limiting promoting and protecting the interests of the CCP. As such, based on the applicant’s evidence and the available country information the Tribunal finds that if the applicant is returned to China there is a real chance she will be seriously harmed because of her religion as claimed. 

   58.Therefore, having considered the applicant’s claim, the Tribunal finds that if the applicant is removed from Australia and returned to China, there is a real chance that she will suffer serious harm as a Christian and as a member of the local church. As such, the Tribunal finds that the applicant does satisfy the criterion set out in s 36(2)(a) for a protection visa and as such is a person in respect of whom Australia has protection obligations under the Act.

   CONCLUSIONS

   59.For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore, [Husband A] satisfies the criterion set out in s 36(2)(a) of the Act.

   60.In addition, the Tribunal has found that the applicant is a member of the same family unit as [Husband A]. The Tribunal therefore finds that the applicant is a member of the same family unit as [Husband A] pursuant to s 36(2)(b) and s 36(2)(c) of the Act and as such is entitled to a protection visa.

   DECISION

   61.The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act 1958 (Cth).

   Jason Pennell
   Senior Member

   
   

   Annexure ‘A’

   Christians[70]

   [70] DFAT report at p.16

   3.28 Christianity is growing rapidly in China. Estimates of the number of Christians vary and official figures only count those Christians worshipping at officially registered churches. The Chinese Government reports there are 38 million Christians. The 2020 US Department of State International Religious Freedom Report estimates there are 70 million Christians throughout China; higher estimates also exist.

   3.29 Authorities have regulated Christianity to make it more ‘China-orientated’. Bibles are increasingly difficult to obtain, and Bible references are censored online. Plans for authorities to ‘re-translate’ the Bible or issue state commentary have been reported by media but have not been implemented at the time of writing. Sacred images in churches, such as those of the Virgin Mary, have been replaced with portraits of Xi Jinping in some churches.

   3.30 Consistent with Yang’s theory of the three markets, many ‘grey market’ churches have operated relatively openly for many years. Since about 2015, and to some degree earlier, the government engaged in a campaign to remove visible symbols of Christianity from church buildings. Both Catholic and Protestant churches have been affected. Christian media reports the removal of crosses on buildings consistently between 2015 and 2021, and across a wide geographic spread of provinces.

   3.31 In a 2018 report, the Pew Research Centre ranked social hostility to people of different religions as low in mainland China, much lower than in Australia. Similarly low scores on hostility are found in other parts of East Asia. DFAT does not rule out the possibility of isolated societal discrimination. For example, a Christian may miss out on job opportunities based on fear that they will proselytise to clients and attract adverse government attention, but DFAT is not aware of incidents.

   Protestants[71]

   [71] DFAT Report at p.17

   3.32 The Three-Self Patriotic Movement (TSPM), established in 1949, is the official governing body for Protestant churches in China. ‘Three-Self’ is a Chinese abbreviation for the church’s three principles of self-administration, self-financing and self-evangelisation taken from 19th century missionary philosophies. It does not refer to the Trinity. The Three-Self Church comes under the authority of the CCP’s United Front Work Department and is the single state-sanctioned Protestant church in mainland China.

   3.33 Most Protestants worship in unofficial ‘house’ churches. These ‘underground’ churches may literally be in a house, or can be large gatherings in, for example, commercial office space. During COVID19, some services moved online, which in some cases increased the size of congregations. In recent years the government has increased efforts to force them to submit to the authority of the TSPM, teach Party aligned doctrine, cut off association with foreign churches, and subject the appointment of leaders to rules set out by the TSPM. Churches refusing to align with the TSPM have been closed or threatened with closure. DFAT is aware of reports of authorities pressuring house churches by cutting off electricity, forcing landlords to evict members, or using procedural grounds to shut house churches. Larger churches are most likely to receive government attention; the larger the congregation, the greater the chance of such attention. This in practice means that small groups may be able to meet in private for unauthorised religious discussions.

   3.34 The situation for Protestants differs from place to place and community to community. DFAT is aware of Protestant communities that have been largely unaffected by increased government oversight and where usual worship activities and practices have continued largely without any interference. The nature of Protestant Christianity is that smaller churches not linked to any central hierarchy or authority are harder to control by either the state or the religious authority but conversely are also less likely to be seen as a threat to the state and thus less likely to be targeted.

   3.35 DFAT assesses that Protestant Christians face a moderate risk of official discrimination and are unable to practise their faith freely. Members and particularly leaders of large underground churches are most susceptible to such discrimination, and anyone who has linked their faith to politically sensitive subjects face a higher risk. DFAT assesses that Protestant Christians face a low risk of societal discrimination.

   Catholics [72]

   [72] ibid

   3.36 The Chinese Catholic Patriotic Association (CCPA) represents the official Chinese Catholic Church. Globally, matters of Catholic doctrine, ecclesiastical law and the appointment of leaders (bishops) are usually controlled by the Catholic hierarchy, headquartered in the Vatican. The CCPA does not recognise the authority of the Vatican. In the past, the Vatican has had some input into the selection of bishops, but a number of Vatican-approved bishops also operate ‘underground’, separate from the CCPA. For some Chinese Catholics, allegiance to the Vatican Catholic Church hierarchy is an important part of faith because of their belief in a succession of authority that can be traced back to St Peter, a contemporary of Jesus. For those Catholics, Party-appointed priests and bishops are unable to validly confer sacraments that are central to their beliefs. On this basis they refuse to participate in religious activities associated with the CCPA.

   3.37 In 2018, the Vatican and Beijing signed an agreement that would regularise the status of some Chinese-appointed bishops so they would be viewed as valid by the Vatican. In return, those ‘underground’ Catholic churches would join the CCPA. Most of the details of the deal are not known. The deal was extended in October 2020 for a further two years, allowing for more bishops to be recognised. 3.38 In spite of the deal, reports of a crackdown on Catholics as part of a wider campaign to sinicise religion continue. Underground priests who were demoted from the position of bishop as part of the deal are pressured to join the CCPA, according to various media reports. Some media reports say that underground priests had experienced torture and disappearance if they resisted. Fujian, a traditional stronghold for Catholicism and underground Catholicism in particular, has seen particular efforts to convert underground bishops.

   3.39 The numbers of CCPA versus underground Catholics are not clear. Cardinal Zen, formerly Archbishop of Hong Kong and a vocal critic of the Chinese Government, has claimed in media reports the ‘underground community’ has ‘practically disappeared’ because of pressure on underground bishops. DFAT is unable to verify this claim.

   3.40 DFAT assesses that some underground Catholics loyal to the Vatican are only able to practise their religion discreetly and some may face severe restrictions. Most Catholics will follow their local leadership, whether it is Party or Vatican controlled, and so leaders are more likely than congregants to face government attention, but the situation differs from place to place and community to community and many Catholics live in rural areas where local conditions may prevail. DFAT assesses Catholics, both underground and CCPA members, are subject to low levels of societal discrimination.

   Jehovah’s Witnesses [73]

   [73] DFAT Report at p.18

   3.41 There is a small number of Jehovah’s Witnesses (JWs) in China. They are reportedly present across China but information about them is very limited. JWs claim their adherents throughout China have experienced home raids, physical abuse, separation from families (including visa cancellation and deportation of foreign spouses), interrogation, detention and placement in re-education centres. Bitter Winter, a website that reports on Chinese religious affairs with an anti-CCP standpoint, claims JWs have been prosecuted under laws that criminalise xie jiao. The same source says JWs have been questioned about their links to foreign actors (headquarters are in the United States) and their political views.

   3.42 JWs are politically neutral and practise proselytisation as a matter of faith. They are linked to a worldwide religion headquartered outside of China. These matters could influence their treatment, but DFAT does not have enough information to make a firm assessment about societal or official discrimination. Church of Jesus Christ of Latter-day Saints (Mormons)

   3.43 There are members of the Church of Jesus Christ of Latter-day Saints (Mormons) in China. The Church’s website notes the large worldwide Chinese diaspora has exposed many Chinese people to their faith. The website cautions members in China to be careful to comply with local laws and not distribute church literature or materials or set up social media accounts to discuss their faith. It says there are local Sunday worship meetings in China. It also says that, because the Church follows government regulations, it has good standing and is respected.

   3.44 A CNN article from June 2020 reports that Mormon worship meetings do take place, but with caution. One member of the Church told CNN he was able to tell people he was a Mormon if he was careful not to preach, while others simply say that they are ‘Christian’. The CNN article notes there are Mormon worship communities in a number of cities, particularly on the east coast but also in Xi’an and Chengdu.

   3.45 The construction of a Mormon Temple in Shanghai was announced in April 2020. At the time of writing, construction has not begun, and it is not clear if it will proceed. CNN further reported that ‘already, authorities in Shanghai’ had ‘suggested’ that ‘prior approval’ for the announcement had not been sought by the Church.

   3.46 Information about Mormons is limited. DFAT does not have enough information to make a firm assessment about official or societal discrimination.

   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.

   …