1721039 (Refugee)

1721039 (Refugee) [2022] AATA 966 (14 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1721039
COUNTRY OF REFERENCE:                   China
MEMBER:David McCulloch
DATE:14 February 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 February 2022 at 4:07pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Roman Catholic – underground church – credibility concerns – departed country legally on own passport – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li 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 dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 30 August 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of the People’s Republic of China (China), applied for the visa on 28 April 2017. The delegate refused to grant the visa.
The applicant appeared before the Tribunal on 10 February 2022 at 9.30am to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by video using Microsoft Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted remotely. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant’s registered migration agent attended the hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–5LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (the complementary protection criterion). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The Tribunal has before it the DFAT Country Information Report – People’s Republic of China, 22 December 2021, a copy of which was provided to the applicant prior to the hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant was granted an FA 600 tourist visa on 25 January 2017. The applicant entered Australia [in] February 2017. The applicant applied for the protection visa on 28 April 2017.
The following information is apparent from the application for protection forms. The applicant was born on [date] in Fuqing, Fujian, China. The applicant is a Roman Catholic of Chinese Han ethnicity who speaks, reads and writes Mandarin. The applicant is married. His wife and two children reside in China. The applicant’s parents and sister reside in China, and the applicant is in contact with them by phone. The applicant lived at two addresses in Fuqing City, Fujian from birth until December 1999 and from January 2000 until February 2017. The applicant attended primary and high school from 1984, graduating from [School 1] in [year]. The applicant was self-employed doing [Occupation 1] from July 1993 until December 1999 in [Village 1], Fuqing, Fujian, and from January 2000 until November 2016 in [Village 2], Fuqing, Fujian. From February 2017 until the time of application, the applicant was unemployed.
The applicant provided a statutory declaration, declared at Sydney on 28 April 2017, setting out his claims for protection as follows (not corrected for spelling or grammar):
I, [the applicant]
[Address 1]
Make the following declaration under the Statutory Declaration Act 1959:
1.     [In] February 2017, I arrived in Australia. I am a citizen of China (PRC). I am a faithful Roman Catholic and active member of the Roman Catholic underground church (the underground church) in China. I believe that I must be subjected to persecution by the Chinese government if I go back to China.
2.     On [date], I was born in [Location 1], [Village 1], [Town 1], Fuqing City, Fujian Province, China. My parents were farmers. I had only one sister.
3.     I have studied at school for totally 9 years, including 6-year primary school from September [year] to July [year], and 3-year junior high school from September [year] to July [year].
4.     My home village is located in a remote rural area, [close to] the sea. There are less farmland and more people. For my family, we only had a very small piece of farmland, and our income from it was very limited. In order to make our basic livings, we were engaged in [a] business in which we would [details of business activities redacted].
5.     After I graduated from the junior high school in July [year], I began to [work in the specified] business together with my parents. In January 2000, I began to run my family's [specified] business independently by myself. I then moved the business to an old house, which owned by my grandfather, in [Village 2], [Town 2], Fuqing City, because it was in a good location, easily accessible and transportation was very convenient.
6.     In January 2000, I began to run my family's [specified] business independently by myself. I then moved the business to an old house, which owned by my grandfather, in [Village 2], [Town 2], Fuqing City, because it was in a good location, easily accessible and transportation was very convenient.
7.     [In] January 2002, I got married with my wife [Ms A]. Our son [Child B] was born on [date] and our daughter [Child C] was born on [date]. At that time, the Chinese government implemented "Birth Control" policies. One couple were normally just allowed to have one child, unless their first child was a girl. As my wife and I had got a son already, our daughter was regarded as a child born out of "Family Plan". As a result, we were forced to pay a heavy fine (a.k.a. "social compensation fee") of 38,000 RMB. It was really big money for us. My wife and I were unable to afford it at all. Fortunately, [Mr D], a devout Roman Catholic, kindly paid the fine for us. Otherwise, my wife and I could not get household register (hukou) for our daughter. [Mr D] ran a [store] also in [Village 2], [Town 2]. I got to know him during my business activities, because I [visited] his store. He was honest, and always kept his word to me. I was deeply affected by his Roman Catholic beliefs.
8.     From January to June 2007, introduced by [Mr D], I attended a 6-month Catechumen class organised by the Roman Catholic Underground Church (the underground church. There were around 10 participants in the class. We gathered together at a garage in the backyard of [Mr D]’s [store] on the evening on every Friday and Saturday, studying teachings of Roman Catholic Church. In June 2007, I was baptized together with other participants after the end of Catechumen class.
9.     After I was baptized, I followed [Mr D] to attend the underground church, including Mass, celebrations of important days of Roma Catholic Church, as well as other church activities such as visiting people who were sick. I also had small group meetings at church members' homes, including my home. Influenced by me, my families became Roman Catholics and joined the underground church.
10. When I went to the underground church for the first time, there were around 20-30 people. Until 2016, our underground church was extended to more than 100 people in [Village 2], [Town 2]. It was really crowed when we held Mass or meetings all together at the garage of [Mr D]'s [store]. Therefore, [Mr D] decided to build up a new house in his backyard for our Roman Catholics of the underground church to have enough room to have our church activities. His decision was widely supported by our church brothers or sisters. We not only made donations for it but also built up the new house together with him. In October 2016, the house was eventually completed.
11. On the other hand, with continuous development of our underground church, the PRC authorities made more and more troubles to us. The police from the Public Security Bureau (PSB) many time questioned [Mr D], as well as key members like me. They warned us that we were not allowed to gather so many people together at the underground church unless we fully co-operated with the Communist government and guaranteed all of our church activities to be under strictly supervision of relevant government agencies. After the PSB found that we built up a new house solely for our church activities in October 2016, they are very upset. The police threatened us that our underground church would be banned and our key members would be arrested if we failed to stop our church activities at the new house and failed to limit the size of participants of our meetings.
12. On 10 November 2016, when [Mr D] and I were discussing about how to negotiate with the PRC authorities about our church activities at the new house, both of us were suddenly arrested by the police. Meanwhile, the new house was demolished by the Communist government. We were accused of destroying the government's religious policies and making use of our underground church to have anti-government activities.
13. From [November] to [December] 2016, I was detained at the detention centre in [location]. During my detention, I suffered from inhuman treatment and cruel torture. I was released mainly for two reasons. Firstly, [Mr D] took all responsibilities for everything in order to protect me. Secondly, my wife spent a lot of money to bribe the police. However, I had to report to the PSB once a week. Furthermore, I was not allowed to have any church activities, because I was still under the investigation of the PSB. Not long after I was released, [Mr D] was secretly transferred to a prison in [City 1], Fujian.
14. After I was released, I was continually in troubles with the police. I was even not allowed to have my business activities. In such a situation, my only thoughts were to flee the country. I told my cousin, [Ms E], about my situation and she understandingly organised for my escape. She worked at a foreign trade company within Fuzhou as a saleswoman and so she had a lot of social connections including some of the government officials. With her careful arrangement and organisation, I finally left China [in] February 2017.
15. If I return to China, I must become a victim of persecution by the Chinese government. Therefore, I have to seek protection in Australia.
Provided to the Department was:
·A letter from [Father F] dated 13 August 2017 indicating that the applicant is a member of the [Location 1] Catholic Chinese Community. It indicates that the applicant has been regularly attending Sunday services since first arriving in Australia in February 2017. This date of first attendance has been given to the writer by the applicant.
·A letter dated 13 August 2017 from [Mr G] indicating that the applicant is a member of the [Location 1] Catholic Chinese Community and has been attending the church since February 2017.
·Eight photographs showing claimed participation by the applicant in church activities in China.
·Four photographs showing claimed participation by the applicant in church activities in Australia.
Provided to the Tribunal was:
·A letter dated 25 January 2022 from [Father H] indicating that the applicant has since February 2017 been regularly attending Catholic mass at [Church 1]. During COVID-19 lockdown the applicant continued to attend church activities online. The date of first attendance was provided by the applicant.
·A letter dated 25 January 2021 from [Mr I] indicating that the applicant is an active member within the [Location 1] Catholic Chinese Community. The applicant has been attending activities since February 2017 including online during lockdown. The time of first attendance of the applicant was provided by the applicant.
Independent information
The 2021 DFAT report on China provides the following information:
RELIGION
3.22    China officially recognises five religions: Buddhism, Daoism (Taoism), Catholicism, Islam and Protestantism. Daoism, Buddhism and Confucianism (which while not an official religion has had significant influence on Chinese culture) have an ancient presence that has long shaped Chinese culture. The 2020 US Department of State International Religious Freedom Report on China estimates that 52.2 per cent of the population are unaffiliated with any religion, 21.9 per cent practice traditional folk religion, 18.2 per cent are Buddhist, 5.1 per cent are Christian and 1.8 per cent are Muslim.
3.23    Religion in China is traditionally not as separate from everyday life as in the West. Chinese people, especially those of traditional Chinese faiths like Buddhism, Confucianism and Daoism integrate religious practice into their everyday life and lifestyles, including perhaps with home shrines and/or cultural festivities and events. Buddhist, Daoist and Confucian practices are not mutually exclusive; it is common to practice more than one these faiths. Some religious figures might be seen as better at answering prayers than others and some traditions might suit certain life events (for example, weddings and funerals) more than others. Adherents of non-Chinese religions like Christianity, Islam and new religious movements are more likely to separate their faith from their everyday lives and may label other beliefs as ‘superstition’. By extension, many Western religions and new religious movements require exclusivity and loyalty to that particular faith.
3.24    Under Xi Jinping, China has introduced a renewed campaign to ‘sinicise’ religion. This work, undertaken through the Party’s United Front Work Department and carried out through registered, state sanctioned religious organisations, aims to ensure that a ‘correct’ version of religion is practised by adherents in China, with principles like patriotism, party leadership, and loyalty to the Party emphasised, and doctrine deemed inconsistent with Party supremacy de-emphasised or forbidden. This may involve changing elements of worship such as hymns, clerical attire or architecture to better align with Chinese cultural, aesthetic or political traditions. New religious regulations and implementation organisations aim to enhance government control over the appointment of religious leadership, increase transparency over sources of funding, limit religious practice to venues authorised by the government, reduce links with foreign religious organisations, and give the Party greater say over religious doctrine taught in China. Religious groups that refuse to bring themselves under the authority of state-sanctioned religious organisations face being shut down. Some religious leaders have faced charges like subversion of state power. The 2018 Regulations on Religious Affairs contain broadly worded prohibitions against the use of religion to ‘split the country’, ‘undermine ethnic unity’ or ‘engage in terrorist activities’. Although centrally organised, the situation for religions varies from place to place and is influenced by the actions and motivations of local authorities.
3.25    Professor Fenggang Yang of Purdue University describes religious groups as operating in a ‘red’, ‘grey’ or ‘black’ market. The red market groups are the officially sanctioned churches, such as the ‘patriotic associations’, the name used for officially sanctioned organisations that represent the five recognised religions. Grey markets include unofficial but tolerated (to a degree) religious gatherings. Black markets include underground movements and xie jiao. Some home congregations were originally in the black market but moved to the grey market with increased tolerance over decades. But the recent crackdown to ‘sinicise’ religions is reversing this trend. Those groups that are allowed to exist are subject to close monitoring. CCTV cameras may be installed in religious buildings to monitor congregations and virtual platforms used by religious groups to meet may be monitored or censored.
3.26    Regulations prohibiting proselytising are generally enforced across China and religious education for those under 18 years is not permitted, but according to the 2020 US Department of State International Religious Freedom report on China enforcement of this rule varies from place to place. In recent years, the number of foreign religious workers and foreign NGOs working in areas with a rights and religious focus appears to have decreased significantly.
3.27    Overall, an individual’s ability to practise religion depends on whether the individual worships in registered or unregistered institutions, whether they practise openly or privately, and whether an individual’s religious expression or the religion itself is perceived by the CCP to be closely tied to other ethnic, political and security issues. Adherents of Buddhism (except Tibetan Buddhism), Confucianism, Daoism, folk religions, and syncretic combinations of these that do not have influences from ‘foreign religions’ and that are not associated with other foreign influences, are unlikely to experience significant restrictions.
Christians
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.[1]
[1] DFAT, Country Information Report – People’s Republic of China, 22 December 2021, pp. 15–17.
…
Catholics
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.[2]
[2] Ibid, pp. 17–18.
…
DOCUMENTATION AND FRAUD
Exit and entry procedures
5.31    Exit and entry is strictly regulated. The government knows when people enter or leave the country through air and seaports. It uses artificial intelligence, facial recognition software and biometric databases to check passenger identities and to check identity documents for fraud. Various government agencies can feed data into databases including from to tax, customs, police or judicial authorities. This technology is used to create an exit control list. The way that list works is not clear and bans may appear arbitrary.
5.32    National security might be cited as a reason for refusing permission for a person (or those associated with them) to leave the country – an exit ban may only become apparent at the airport when travel is attempted. Exit bans are sometimes applied to family members of people residing outside China to coerce the foreign resident to return to China to face charges. Those suspected of a crime, persons of interest on ‘national security grounds’, activists and human rights defenders may be refused a passport upon application or, if they already have one, may be prevented from leaving the country due to being on an exit control list. DFAT is also aware of instances where members of certain ethnic minority groups have been denied passports.
5.33    If a person is on an exit control list it is very unlikely, probably impossible, that they would be able to leave China. DFAT has not seen evidence of compassionate exemptions being granted to a person for family and health reasons. There is a legitimate risk that family members of an individual under investigation by Chinese authorities could be subject to an exit ban. This is not only for sensitive charges but also economic charges such as fraud.
5.34    Exiting China by land outside of border crossings would be very difficult. The far western borders are less policed but also much harder to cross due to very harsh conditions. Border checks exist at Hong Kong and Macanese ports and land crossings, and special provisions are in place at the Mongolian border to allow passage of Mongolian and Russian citizens that use ‘one-time passports’ that allow travel to only one country. The borders with Vietnam and Myanmar are more porous but efforts have been made in recent years to strengthen them. China is reportedly building a 4.5 metre fence on its Southeast Asian borders. Checkpoints have been set up in Vietnamese border areas and local villagers help officials to patrol remote areas.
5.35    DFAT assesses it is almost impossible to exit China without authorities’ knowledge. It is difficult or impossible to forge identity documents that would be able to be used in practice and technology and algorithms (rather than a human official who may be liable to bribery) may make decisions. Even if a human does inspect the document an ordinary citizen would find it difficult to bribe border protection agents because of sensitivities to corruption, and the professional and comparatively well-paid status of public security officials.
National identity cards
5.36    Citizens over the age of 16 are required to apply for identification cards, while those under 16 years can voluntarily apply with the assistance of a guardian. The PSB issues and manages ID cards according to the Resident Identity Cards Law (2003). Cards are valid for: five years for children under 16; 10 years for individuals aged between 16 and 25; 20 years for individuals between 26 and 45; and, permanently for individuals aged 46 years or older.
5.37    Use of China’s latest (second generation) resident identity cards (RICs) became mandatory in 2013. RICs include the cardholder's name, sex (male or female only), ethnicity, date of birth, residential address, a unique 18-digit ID number and colour photograph. Embedded digital microchips in each card contain the same identifying information as well as work history, educational background, religion, police record, medical insurance status, landlord’s telephone number, and reproductive history. Cards issued in ethnic minority areas contain corresponding text in the minority language. Han Chinese in ethnic minority autonomous regions must have text listed only in Mandarin.
5.38    Second-generation cards are difficult to counterfeit. Places such as banks, train stations and airports have card readers. Valid ID cards are required for hukou registration, employment, opening bank accounts, obtaining passports and drivers licences, applications for tertiary study, travel by plane or train, marriages and court matters. Internet cafes and some shops also require proof of identity.
Passports
5.39    Passport applicants must provide their RIC, hukou, recent photos, an application form and, if required, permission to enter and reside in the country to which they are intending to travel. Renewal might also require a certificate of Chinese nationality. Ordinary passports have the holder’s name, sex, date and place of birth, date of issue, term of validity, place of issue and issuing authority.
5.40    The term of validity of an ordinary passport is 10 years (five years for a person aged under 16). Passport applications may be refused if a person is serving a prison sentence, is a defendant in a criminal case, or is a criminal suspect. According to Freedom House, the government has refused passports to millions of people on these grounds, many of them religious and political dissidents, including Uyghurs and Tibetans. China does not recognise dual citizenship.
5.41    It is difficult to use a fraudulent passport within China. Extensive databases that can be checked by officials would easily expose a fraudulent passport. This does not mean that fraudulent passports are not common but they will only likely be presented once the applicant is outside of China.
5.42    Another common form of passport fraud is to falsify documents within a passport, for example a visa granted by another Western country that was never actually issued or to change small pieces of biometric data within a visa or the front page of a passport.
Other documents
5.43    Births and deaths are recorded on a hukou and a birth certificate is required to apply for a hukou. Without a hukou, the issuance of a passport is unlikely. Registration of a child on a hukou must be done inside China.
5.44    Bank statements, academic transcripts, proof of employment and other documents are much easier to create fraudulently than are passports or NICs. DFAT assesses that these documents are relatively easy to obtain and are in common circulation.
5.45    In general, fraudulent documents in China are very common and the scale of fraud is unmatched anywhere in the world. Fraudulent documents and the criminals who create them are highly sophisticated. Criminal syndicates may provide a suite of documents to asylum applicants. As most applications for visas are made online there is further opportunity to doctor copies of genuine documents that are uploaded into the system.[3]
[3] Ibid, pp. 40–42.

The 2019 DFAT report on China provides the following information (underlining added):
3.30 It is difficult to provide exact figures on the number of religious believers in China. In 2018, the government released a white paper on China’s Policies and Practices on Protecting Freedom of Religious Belief (CPPPFRB white paper). This states the major religions practiced in China are Buddhism, Taoism, Islam, Catholicism and Protestantism, and religious believers total almost 200 million (including more than 380,000 clerical personnel). The white paper also notes the majority of 10 of China’s ethnic minorities, totalling 20 million people, follow Islam (around 57,000 clerical personnel); 6 million follow Catholicism (8,000 clerical personnel); and 38 million follow Protestantism (57,000 clerical personnel).
3.31 The CPPPFRB white paper indicates there are also approximately 5,500 religious groups in China, including seven national organisations: the Buddhist Association of China, Chinese Taoist Association, China Islamic Association, Chinese Catholic Patriotic Association, Bishop’s Conference of Catholic Church in China, National Committee of the Three-Self Patriotic Movement of the Protestant Churches in China, and the Christian Council. There are also an estimated 144,000 places of worship in China: 28,000 Han Buddhist temples; 3,800 Tibetan Buddhist lamaseries; 1,700 Theravada Buddhist temples; 9,000 Taoist temples; 35,000 Islamic mosques; 6,000 Catholic churches and places of assembly spread across 98 dioceses, and 60,000 Protestant churches and places of assembly. China also has 91 religious schools, approved by the State Administration of Religious Affairs (SARA), where more than 10,000 students study, including: 41 Buddhist, 10 Taoist, 10 Islamic, nine Catholic and 21 Protestant schools. It has six national level religious colleges: the Buddhist Academy of China, High-Level Tibetan Buddhism College of China, Chinese Taoism College, China Islamic Institute, National Seminary of the Catholic Church in China, and Nanjing Union Theological Seminary.
3.32 In practice, the number of religious believers, places of worship and religious organisations is likely to be much higher - particularly with respect to unregistered organisations (including house churches) which operate in parallel to state sanctioned Christian churches. Freedom House estimates there are more than 350 million religious believers in China who are mostly Chinese Buddhists (185 to 250 million), followed by Protestants (60 to 80 Million, of which only 30 million are registered), Muslims (21 to 23 million), Falun Gong practitioners (7 to 20 million), Catholics (12 million, of which 6 million are registered) and Tibetan Buddhists (6 to 8 million). Other otherwise unaccounted for groups tend to observe aspects of Buddhism, Daoism and ‘folk religion’. Discrepancies between official statistics and international estimates are due to the fact that China does not recognise worshippers who engage in religious activity outside of state-sanctioned organisations or believers who are under 18.
Religion in Fujian
3.33 While a wide variety of religions are practised across China, they are generally able to thrive to a greater degree in Fujian province (Fujian). This is largely due to Fujian’s ethnic and linguistic diversity and historical geographical isolation from other parts of China. However, Fujian’s links with other areas of China increased following the mid-1950s completion of a railway line that connected Xiamen to other areas of China.
3.34 Fujian, home to only 2.8 per cent of the Chinese population, is located in the southeast of the People’s Republic of China, bordered by Zhejiang Province to the north, Jiangxi Province to the west and Guangdong province to the south. Its main cities are Fuzhou, Xiamen and Quanzhou, which are all located along or close to the coast facing the Taiwan Strait. Quanzhou linked Tang dynasty China (618 – 907) with Southeast Asia through trade and shipping.
3.35 Because of poverty and poor agricultural productivity, Fujian residents have a long history of emigration to Southeast Asia and, in more recent times, to the United States, Europe, Australia and Africa. Fujian is the historic ‘hometown’ of many overseas Chinese and in 2017 there were an estimated 15.8 million people originating from Fujian residing across 180 countries and regions overseas. The historical willingness of people from Fujian to travel overseas continues in 2019.
3.36 DFAT assesses that individuals in Fujian have historically practised religion more freely within state-sanctioned boundaries than in other parts of China, as long as practices do not challenge the interests or authority of the Chinese Communist Party. However, DFAT assesses religious control in Fujian has incrementally tightened, albeit from a looser base, in line with the rest of the country (See Government Framework regarding religion).[4]
[4] DFAT Country Information Report – People’s Republic of China, 3 October 2019
Hearing, credibility, findings and assessment
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169–70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
In considering overall the credibility of the applicant the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of China and accordingly his claims will be assessed against China.
The Tribunal has the following credibility issues with the applicant’s claims.
Firstly, the applicant’s evidence in the hearing as to multiple police visits to church gatherings warning of too great a number of worshippers, but continuing to allow gatherings without specific action being taken, was not plausible to the Tribunal.
In the hearing, the applicant indicated that police visited the church gatherings that took place on [Mr D]’s premises in February, March, June, September and October 2016. On each occasion the police would warn that the number of those gathered (approximately 50) was too many and that gatherings needed to be limited to between 20 and 30 people. On each occasion, the participants were warned that they would be closed down if these directions were not complied with. The applicant indicated that on no occasion of visits by the police was anyone arrested or further action taken by police.
The Tribunal put to the applicant that it was not plausible to the Tribunal that the police would attend these unlawful gatherings on multiple occasions and simply warn that they should not continue. The Tribunal considers that much more definitive action would have been taken after the initial warnings, preventing multiple future gatherings.
In response, the applicant indicated that gatherings would stop for a period after police visits with a view to seeking to negotiate.
Notwithstanding that gatherings ceased for a period, the Tribunal has credibility concerns with the scenario put forward of multiple police visits warning of continued gatherings, yet gatherings continuing to occur without more definitive police action. The Tribunal does not accept that unlawful gatherings would be allowed to continue for many months with multiple warnings provided by the police.
Secondly, evidence by the applicant of the building of a chapel on [Mr D]’s premises to accommodate the hundred worshippers at the church was not plausible to the Tribunal in light of frequent police visits to the premises while the chapel was being built.
In the hearing, the applicant indicated that gatherings in [Mr D]’s garage were split in two groups of 50 each given that this was the occupancy limit of the garage. The applicant indicated that from March 2016 a chapel was being built in the backyard to accommodate the hundred worshippers of the church.
The Tribunal noted to the applicant that it would seem that police would have readily detected the building of the chapel from multiple visits to the premises from March onwards, before the chapel was completed in October 2016.
In response, the applicant indicated that the building works were not detected as being for a religious purpose as the building could have been for other purposes.
The Tribunal maintains credibility concerns that police would not have investigated the purpose of the construction given that the premises were being used frequently for religious gatherings.
Thirdly, it is not credible that a chapel holding 100 worshippers would be built if police had been warning since before the beginning of its construction in March 2016 that religious gatherings were limited to between 20 and 30 people.
In response, the applicant indicated that it was intended to create an official church so that negotiations could occur for its approval by authorities. The Tribunal put to the applicant that it did not accept that the church would be built in advance of the church being officially recognised. In response the applicant indicated that it was not proposed that the church be a registered church but that it be dedicated for gatherings and approval would be sought for this.
The Tribunal is not satisfied that, in the absence of any form of government approval, and police having an active adverse interest in church gatherings at the premises that a standalone religious structure for gatherings for a hundred people would be built.
Fourthly, the applicant has not been consistent in terms of him being individually approached by police warning him of church activity. In the hearing, the applicant indicated that the only encounters he had had with police were when police visited the church gatherings warning that they need to be limited in number. The Tribunal put to the applicant that in contrast, in the interview with the delegate, he had indicated that he was personally warned by police on many occasions, including at his home.
In response, the applicant indicated that this could be an interpretation issue. The Tribunal read to the applicant a transcript of his interview with the delegate in which multiple questions are asked, the responses to which indicate personal approaches from the police. The Tribunal also indicated that the applicant’s written claims make reference to the applicant being questioned multiple times by the police.
In response, the applicant indicated that others were present when he was approached by the police.
In the Statutory Declaration provided by the applicant after the hearing, the applicant indicates that he never said in the interview with the delegate that he was personally targeted by police. He says that he told the delegate the police made trouble and came to his home after he was released from detention. Police came to his home once a month after detention.
Reviewing the interview with the delegate, the Tribunal does not accept this explanation. The applicant initially indicates in the interview that police used to threaten him all the time, and said that church activities needed to be controlled. He indicated that they came around once a month. They said that if they do not stop the church activities the applicant will be arrested.
The reference to a threat that the applicant would be arrested clearly indicates that the police approaches were being claimed before he was in fact arrested. Further, evidence has not been given that the applicant attended church gatherings after he was arrested and released, particularly noting that he was, as claimed, required to report regularly to police.
The Tribunal considers that the evidence discloses an inconsistency as to whether the applicant was warned by police outside of their visits to church gatherings. Given multiple references in the interview with the delegate to police visits, the Tribunal is not satisfied that these are interpretation errors. For the reasons indicated, the Tribunal does not accept that the reference to police visits in the interview is referring to visits after the applicant was released from detention.
Fifthly, it is very unlikely that the applicant would have been able to have left China if, as he claims, he was of continuing adverse interest to authorities after his detention. The applicant confirmed in the hearing his written claims that he was required to regularly report to authorities after his release from detention.
The applicant indicated that he was able to leave on his own passport without difficulty, because a relative had made arrangements to bribe officials.
The Tribunal noted that the 2021 DFAT report indicates that it would be very difficult to escape detection leaving the country through bribery. This is because decisions are made with technology and algorithms rather than by individuals. In addition there is sensitivity by officials to corruption and the fact that security officials are relatively well-paid. These matters mean bribery would be unlikely to facilitate an escape from detection of individuals of adverse interest.
In response, the applicant maintained that money was able to facilitate his departure from China without detection.
The Tribunal maintains its credibility concerns as to this being possible given the DFAT information.
Sixthly, it lacks plausibility to the Tribunal that the applicant would leave his wife and two children in China for the purpose of practising his religion freely in Australia, particularly when there are many individuals in China who are able to practise their religion. The Tribunal indicated that the Tribunal might consider that there were other motivations for the applicant in coming to Australia.
In response, the applicant indicated that he faces persecution if he were to return to China and cannot practise his religion. The applicant indicated that his parents, wife and children are unable currently to practise their religion.
The Tribunal certainly accepts religious practice is a significant motivational drive in the case of dedicated believers. Nevertheless, the Tribunal has significant scepticism that the applicant, an individual with a wife and two children, would leave China and them for another country for the key purpose of religious practice, particularly when the independent information indicates that there are millions of practising Christians in China.
The Tribunal considers these six credibility concerns cumulatively. Considered together, they are very significantly adverse to the applicant’s credibility generally and in terms of his claims. The Tribunal is not satisfied that the applicant is a truthful or credible witness. The Tribunal is not satisfied as to core claims of what the applicant claims occurred in China.
The Tribunal is not satisfied that police detected, visited and warned church gatherings participated in by the applicant on any occasion. The Tribunal is not satisfied that a chapel was being built on the premises of [Mr D] to facilitate gatherings of a larger number of people in an unregistered church. The Tribunal is not satisfied that the applicant was detained by authorities in the circumstances claimed or that he facilitated his release from detention through bribery or was subject to ongoing reporting obligations.
The Tribunal is not satisfied that the applicant was of adverse interest to authorities but was able to leave China on his own passport through bribery. The Tribunal is not satisfied that authorities in China have had or have any ongoing adverse interest in the applicant.
The Tribunal is not satisfied that the applicant’s family in China are currently prevented from undertaking religious activities as claimed.
The applicant has provided evidence of Catholic activity in Australia after arrival. The applicant has provided photographs that he indicates are of him participating in church activities in China and Australia. The Tribunal accepts that the applicant has been religiously involved in Australia, and is prepared to accept that he was a Catholic in China and practised in an unregistered church. However, the Tribunal is not satisfied that the applicant or his church ever came to the adverse attention of authorities as claimed.
The Tribunal is prepared to accept that the applicant would wish to continue to practise as a Catholic in China on return.
The Tribunal put to the applicant in the hearing that DFAT information (extracted in this decision) indicates, from its 2019 report, statistics (from Freedom House) of 6 million registered Catholics in China and 6 million unregistered Catholics in China. The information indicates that there are millions of practising Christians in both registered and unregistered churches. Unregistered churches can be tolerated by authorities and there has been traditionally a more liberal approach to religion in Fujian.
The Tribunal put to the applicant that credibility concerns could indicate opportunism on his part. The Tribunal indicated that it was not likely to accept that, on return to China, the applicant would wish to practise Catholicism in a way which would attract the adverse attention of the state. This is the case notwithstanding a recent tightening in China of restrictions in relation to religion.
The Tribunal notes the 2021 DFAT report making reference to different categories of tolerance of religious activity in China and that religious activity in both registered and unregistered churches can be although is not exclusively, tolerated by authorities. Thus, there are Christians in China who are able to worship without difficulty.
The applicant indicated that everything he has said is true and that his family in China are not able to practise their religion because of government restrictions. As indicated, the Tribunal is not satisfied of the applicant’s core claims and that his family are currently unable to practise their religion in China.
The Tribunal considers the applicant would be able to continue to practise his religion in China without difficulty from authorities, as the Tribunal finds he has been able to do in the past. The Tribunal is not satisfied that the applicant has a fervency in relation to the practise of his religion such that he would seek to involve himself in church activity contrary to the interests of the state.
Given these findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm as a result of adverse interest by authorities in the applicant because of past religious activity in China, or on the basis of any future practise of his religion in China.
The Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm for any of the reasons claimed.

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).
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).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
David McCulloch
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.
…

[2022] AATA 966

14 February 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction