1722986 (Refugee)

1722986 (Refugee) [2022] AATA 5001 (6 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Simon Sen Tao (MARN: 1277816)
CASE NUMBER:  1722986
COUNTRY OF REFERENCE:                   China
MEMBER:Rodger Shanahan
DATE:6 December 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 06 December 2022 at 12:59pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Christianity – member of underground church in China and mainstream church in Australia – parents’ house church raided – credibility – inconsistent claims and evidence – baptised after delegate’s refusal decision – low-level, confused knowledge of church teaching and civil wedding – husband’s separate protection visa application in progress – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (6), 36(2)(a), (aa), 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2
CASE
EFP19 v MICMSMA (2021) FCCA 1508
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 8 September 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of China, applied for the visas on 18 October 2016.
The applicants appeared before the Tribunal on 9 November 2022 to give evidence and present arguments. The Tribunal also received oral evidence from [Reverend A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicants were represented in relation to the review.
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-LA, 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Claims and evidence
Protection visa application
The applicant made the following claims in the October 2016 protection visa application:
The applicant claimed she would be subject to arbitrary arrest, interrogation, illegal detention and imprisonment due to her religious practice. She was not committed to her religious practice before she left Fujian for Melbourne in 2004, so there was no adverse information regarding her at this time.
She claimed that she belonged to the Shouters, established in 1962 by Li ChangShou a US citizen. Shouters have always been persecuted by the Chinese government. In 2014 a woman was killed in McDonald’s and Shouters were blamed even though the perpetrators were from a breakaway group who were the followers of Almighty God. The crackdown on Shouters became more intense and if she returned to China she would be persecuted and detained if she was found practising her faith
On 20 August 2017 an amended statement was provided in which she claimed the following:
I was born [in] FuQing City, Fujian Province ol China. I had resided in Fujian until I came to Australia with a student visa [in] Sep 2004. From Sep 2004 to March, 2011, I was in Melbourne. I met a fellow countryman whose name is [Mr B] and had a child with him. But later, he left Australia with our child discreetly without my knowing. In March, 2011 I relocated myself from Melbourne to Sydney: In May, 2013, 1 commenced de facto relationship with my current partner [Mr. C] and our daughter, [the second applicant] was born on [Date].
My mother has been a member of an underground church, called [Name] Local church, and she began to lake me with her to attend the Church gathering and Service when I was in [High] School. The venue of gatherings changed from one place to another frequently. The church did not have any pastors or Ministers. We addressed the person who in charge of organizing congregations and other church-activities; "San Shif.' (Third Uncle). My mum was given a recovery bible and the Church services normally started by singing Hymns, followed by reading passages from the recovery bible or from the Moring Revival written by Witness Li ChangShou, which I did not realize until I became a committed follower of Jesus recently.
As I was only young and receiving the govemment’s atheistic education since childhood, my mum’s participation in the local church, from my then perspective, was rather superstitious activity. I was always trying to find excuse(s) not going to the Church with my mum by telling her, that I had to focus on school assignments or/and prepare for High School Exams (HSC in Australia), but my mum and later, my father insisted me to take part in the church service on Sundays, and told me it was for my own benefit. The church service did not take me too much time anyway. Other than that, I was talked into being baptized by my parents.
In Nov or early December 2003, when I was studying at [Institution]; the police received tipoff from a local neighbourhood security committee, saying few dozens of people were having illegal religious gathering. The police soon turned up and barged into the house where San Shu was leading the church members to say prayers. San Shu was taken away by the police whereas my parents and other members were asked to produce their ID cards plus contact numbers of their immediate family members. The police registered the details of all the participants and had all the books (the Recovery Bible) and other books written by Witness Lee like God's economy confiscated.
I was so frightened and told my parents afterwards, that 1 did not want to engage in the activity as such anymore as I had no interest in the teachings of the Bible and more importantly, if the police informed my college, then it'd leave a bad record in my personal profile and in turn, may comprise my prospects of employment.
My parents seemed to agree with what I said, and from that incident onwards, they did not force me to engage in the local church anymore. Before long, my parents made arrangements for me to further my education in Australia. Shortly after having arrived in Australia, I met my ex-partner and soon became pregnant. I was living a secular life as most of people at my age do. Going to the Church or joining other religious organizations did not appeal to me at all. Even through, at invitation of friends, I had been to various churches on many occasion, listening to the sermons and noticed few differences between the churches in Melbourne and the local church that my parents took me to in FuQing , but I was not committed to the Christianity and could not be bothered to explore the theological reasons behind the discrepancies between the Mainstream Christian church and the local church (Shouters).
Since I began to cohabit with my current Partner. [Mr C] In in May 2013, I had been taking contraceptive measures to avoid pregnancy. However, [I] accidently fell pregnant. Given our immigration status, I believed it was not the right time to have a child, but my partner insisted, that raising a child together would further strengthen our bond as a family’ and affections towards each other.
But my previous relationship told me, having a child means enormous responsibility and obligation. When the responsibility becomes excessive; our relationship would be inevitably affected, even broken down like what happened previously. I was in great predicament; on the one hand, I really wanted to parent a child and establish a nuclear family with [Mr C], but on the another hand, I was concerned our livelihoods and our future. The last thing I wanted is to repeat the same mistaken I made before with my previous partner. After weighing the pros and cons, I was attempting to convince my partner, allowing me to terminate the pregnancy for it was not the right time to have a child. But he was so against my decision, and categorically warned me if 1 underwent the abortion procedure, he’d break up with me.
I was in great distress and did not know what to do. On that weekend, I went to [Suburb 1] Anglican Church which is only few blocks away from my place so as to improve my mood. 1 had been to this church previously, so I am aware that the church has Mandarin service on [Day]s between [time range]. On that day; it was Pastor [D], delivering the sermon. The topic was Marriage and Family. Rev. [D] said the unit of a man and a woman is ordained by God for the lifelong relationship, and it is the most intimate of human relationship, a gift from God, and a sacred institution.
With respect to the household, the husband is the head whereas the wife is supposed to obey her husband yet this obedience must be a voluntary submission on the wife’s part, and that only to her own husband. God has placed the husband in the position of responsibility. It does not matter what kind of personality a man may have. He must care for the wife and family by serving them with perseverance and love his wife unconditionally; in other words; unconditional acceptance of the wife is not based on her performance, but on her worth as God’s gift to you.
The husband shall always be sure his wife’s emotional tank is full and let her know verbally that the husband values her, respects her and loves her. Following the Biblical teachings, the relationship between a husband and a wife will be in harmony. I 20. In line with the Bible, Pastor [D] also talked about the abortion. He said God knew us before he even placed us in the mother’s womb as it is stated in Psalm 51: 5 I was born a sinner-yes, from the moment my mother conceived me." And Jeremiah I: 5 I knew you before 1 formed you in your mother s .womb". Therefore, an abortion may prevent a person God wanted to create from entering the world.
The whole session of sermon that day seemed to focus on the challenges facing me, and showed me the direction of how to live my life in the future. I was overwhelmed by the preaching that Rev [D] delivered that day, which lead me to conclude the existence of God may be true. In the subsequent few weeks, I kept on going to the church on [Day]. It must be the Holy Spirit who opened my eyes, the Bible teachings started to sink in. I called my parents over the phone, telling them I had started going to the Church. My parents did not feel comfortable to speak with me about the Christian faith over the phone, but did advise me that if I were committed to following Jesus, I should find a local church as other Christian Dominations do not pass on the true messages of God.
I was a bit perplexed and really could not understand my parents’ assertion on why the mainstream Christian Sects do not teach the true messages from God; however, since my parents have long been Christians, I took their advice and through a friend of mine, I found a local church in [Suburb 2], and began to attend the .service in that Church on Sundays since June, 2016. As my partner works full-time, and sometimes has to work over the weekends, I do not want to stay at home by myself, and more importantly; being driven to learn more about the Biblical Teachings; I have never stopped going to [Suburb 1] Anglican Church on [Day]s nor have I ceasing attending the Bible study group in the afternoon on [Day]s at [Suburb 1] Anglican Church.
After having attended two churches services and the bible study classes at Anglican Church for few months, and consulted with [Rev. D] and [Pastor A]; I could say with certainty, that the local church teachings are unbiblical
To begin with, the Local Church or Recovery Church, known as Shouters was led by i Changzhou Li, (or witness lee) that passed away in 1997.
AAT Hearing
The documents provided by the applicant were gone through and she said that she had no more to add. She and her daughter were the applicants on her protection visa application but her husband wasn’t as they got married after both had submitted separate applications for protection lodged. She believed that her husband was still waiting for a hearing date for his claim. She did not know what his claims were but she believed that his family had taken out loans in China and he couldn’t repay the, This claim had been refused but he was still waiting to hear.
She said that as far as she knew, from February 2018 China had banned the worship of God or worship figures – this was the same for Catholics and people had been prosecuted. Asked what she personally feared, she claimed that if she returned to China and spread the word of God she would be prosecuted and fined. Her daughter was studying in a Christian school in Australia and she would be unable to do this in China if she were to return. She had no other claims,
The applicant said that the Chinese authorities had placed great very restrictions on the practice of Christianity in religion and it was not allowed to preach Christianity in schools or to people in China. It was put to her that the Tribunal had access to lots of general country information and was interested in her individual story and fears and what made her apply for protection at the time she did.
She claimed that she practiced Christianity secretly in China and the leading individuals would be detained after the venue was raided by authorities. Asked if anything had happened to her while practising Christianity in China, she said that her parents had been detained and interrogated by Chinese authorities and she had been concerned since then. The leaders of her underground church in China had been arrested.
Her parents had been detained in 2003. She said that she had mentioned this in her statement when asked. She was practising her faith until 2003. She was still a student studying at school which was why she wasn’t detained. It was put to her that she was [Age] at that time and it was put to her that the authorities would surely have been interested in her as well.
She said that she had been at school at the time and not present during the raid. It was put to her that there was no mention of this in her October 2016 statement. She said that she mentioned this in her submission about her parents and the elders. It was put to her that she mentioned this in her 2017 statement but not in her 2016 statement which was strange given its importance. She said she thought she lodger her application in 2017 and it was put to her that it was October 2016. She said that perhaps it was because only the pastor was the only one arrested and her parents were detained and questioned by police for only one day.
She came to Australia in 2004 and was asked if she practised Christianity when she came. She said that she didn’t, but began when she was pregnant in 2016. She said that she didn’t practise it from 2004-2016 but said she went to church in Melbourne but not very often. She could not provide any evidence to support this or that she attended house church in China.
Asked why she applied for protection in October 2016, she said that she fell pregnant. She wanted to have an abortion but her husband didn’t and she went to church and heard her pastor say that it was a sin to have an abortion. This was around May/July 2016. Asked why she applied in October 2016, she said that she realised she made a huge mistake and she was living illegally in Australia and if she returned to China she would be prosecuted by Chinese authorities. She agreed that she was illegally in Australia and said it was a mistake to live in Australia on her own and she didn’t know what to do and chose to believe in God. She hoped the authorities could give her a second chance and realised that her child couldn’t receive a Christian education in China.
Her husband was a baptised Christian. Asked when she began going to church, she said on a genuine basis around May/June when she became pregnant. She believed that God was guiding her through [Pastor D]. She attended the Anglican church and attended every Sunday as well as the bible reding classes and her daughter attended Sunday school.
She was asked to take the Tribunal through what occurred from Holy Thursday to Easter Sunday, and she said that Jesus was born and baptised and climbed the mountains and suffered the sacrifice and resuscitated. It was put to her that Easter was the most important time in the Christian calendar and was asked what happened on each of the days. The Tribunal could ask her questions about the bible and she could base her answers on memory and, while tests weren’t ideal to test one’s faith, but if she had been a regularly practising Christian for six years she would have attended at least five Easter services. She should therefore be able to give an outline of the particular events that Jesus took part in during this period.
She said ‘five biscuits’, ‘crocodile’ and said that he had five biscuits that could be divided between all members of the church. She was asked if she was referring to the loaves and fishes. She said that all she knew of Easter Sunday was that he died and was resurrected three days later. She thought he was resurrected on Monday. He was sacrificed on Friday and resurrected on Monday. Asked what happened on Sunday she said that she didn’t remember. Asked what happened on Thursday, she said she couldn’t remember. It was put to her that after the number of years that she had been going to church, her limited knowledge regarding the events of Easter raised questions in the Tribunal’s mind as to the genuineness of her faith.

This was just one concern. Her apparent attraction to Christianity in May/June 2016 under the Anglican faith was different to what she stated in her October 2016 application when she made no mention of the Anglican church and simply mentioned the Shouters. She had also received a negative protection decision in September 2017 and then had been baptised in May 2018 – this also raised questions as to the motivation for being baptised and whether it was a reaction to the negative decision. She said that this was wrong and she had been attending church and the Tribunal could ring her pastor. She was advised that the Tribunal had to assess the genuineness of her Christianity, rather than simply her attendance.
She claimed that she had been baptised when very young in China but the Australian authorities didn’t recognise this and her pastor thought it was right to be re-baptised. The timing was up to her pastor. She was married on [in] 2018. She didn’t get married at the church. She was asked why they didn’t, given it was a sacrament and therefore part of her faith. It was very strange that she didn’t have a religious marriage. She said she was married in a civil registry. It was put to her that this was strange for a committed Christian as she claimed to be.
She claimed that if she returned to China she would want to preach the gospels yet she didn’t appear to know that much about the Christian celebration of Easter for example. She also claimed that her daughter would not be able to have a Christian education in China which was important to her, yet her faith didn’t appear to be important enough to have a wedding in the church. These were concerns the Tribunal had as to the genuineness of the faith which she claimed was so important to her. The fact that she had claimed to have been attending the Anglican church since May/June 2016 yet never mentioned it in her October 2016 statement was also of concern.
She claimed that when they were married her husband wasn’t a Christian yet and she wanted to keep a low profile so people didn’t look at her – she just wanted to sign it at the registry. Her husband was baptised in 2020 and had studied the bible online for a year before that due to COVID. It was put to her that both people didn’t have to be Anglican to have a church marriage. Alternately they could have had a civil marriage and then a church service to bless the marriage. She said she had already given birth to her daughter so she didn’t want to have a service and would have been embarrassed to do so. It was put to her that the church was very forgiving[1] and that she claimed she would seek to preach in China with the attendant risks, yet she was too embarrassed to have a marriage service/ceremony in a church. This sense of embarrassment appeared to be inconsistent with respect to the strength of her faith that she claimed to have.
[1] See for example FORGIVENESS - The Anglican Connection, Learning to forgive (sydneyanglicans.net) and others.
She was advised about s 424AA and it was put to her that her husband had applied for protection in July 2015, was given a negative decision in October 2015, appealed to the AAT and in September 2019 and the decision was affirmed. She then said he had been baptised in 2020, after his negative decision was affirmed. This raised questions in the Tribunal’s mind that they sequenced certain actions in response to negative immigration decisions – this raised concerns that her and her husband’s pursuit of a Christian faith were not genuine but motivated in pursuit of migration outcomes. Her husband hadn’t lodged a protection claim based on his Christianity. She and her pastor had both encouraged him to become Christian outside of his claim.
She was also told about s 5J(6) and it was put to her that the timing of her baptism was done tactically rather than as a true reflection of her faith. She claimed that she had the intention to be baptised a long time before but her pastor told her that she had to complete reading a book and the baptism was at the first available time. She took about six months to read the book.
The witness was then called. Prior to his arrival she was asked whether she had any evidence of her Christian participation in China and she said that she didn’t – she was frequently at the underground church but photo-taking was not allowed. She said that they worshipped at the church in China and it didn’t occur to her to collect any evidence at the time she attended. She said that she had lived in Australia for 18 years and had become part of her life and she wished her daughter to continue to receive a Christian education.
The applicant’s Anglican minister was called by telephone. He said that during 2016 she attended the [Suburb 1] Anglican church every [Day] and then did so with her daughter. She was a committed Christian. It was put to him that the Tribunal had to determine the genuineness of her religious claims and he was asked how he determined her genuineness wasn’t just to seek a migration outcome. He said that in 2016 he didn’t know she was illegally here and if she wasn’t committed she wouldn’t come here all the time.
She didn’t turn up 100 per cent and said that sometimes she went on holiday for a few weeks. He met her husband in 2020 but worked on [Day]s so didn’t come. They weren’t married in the church and he was asked if it was strange that committed Christians weren’t married in the church. He said they recommended they come to the church but they recognised civil marriages. He was asked if it was strange that they didn’t get a blessing, and he said that he had one couple who had done this – the applicant hadn’t asked him to give their marriage a blessing. He said that he was also teaching the applicant’s husband about the bible for the last year.
CONSIDERATION OF Claims and evidence
The first-named applicant is a [Age] year-old woman and the second-named applicant her [Age] year-old daughter. Her husband has a separate protection visa application that was applied for prior to their marriage and hence he does not feature on this application. The first-named applicant claimed that if she returned to China she would be prosecuted and fined for spreading the word of God. She also claimed that the second-named applicant would be unable to study in a Christian school if she were to return to China.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not expected to accept uncritically any and all claims made by an applicant.
Overall I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be an entirely credible, reliable or truthful witness, and find that she fabricated her claims in order to be granted a protection visa.
Christian Faith
I do not accept that the applicant is a genuine Christian and therefore she would not be prosecuted for spreading the word of God, nor would she be denied the ability to educate the second-named child in a Christian school. It is difficult to institute a knowledge test that will definitively determine whether someone is a genuine Christian or not, and the Tribunal has had to give weight to various pieces of evidence in order to reach a conclusion as to her genuineness.
In favour of her claim is the fact that she attends church regularly since May/June 2016, has been baptised and during her hearing evidenced a knowledge of the bible. She takes her daughter to Sunday school and the Anglican minister stated that he believed she was a committed Christian. There are however, limits to the weight that can be given to long-term attendance by individuals as a measure of one’s true faith. As Judge Driver has noted: ‘Even the most casual observer of the human condition would agree that some people are willing and able to live a lie for their entire lives if there is something sufficient for them to gain from it.’[2]
[2] Judge Driver in EFP19 v Minister for ICMSMA (2021) FCCA 1508 para 63, 24 Aug 21.
There are also sufficient concerns regarding her evidence that outweigh those elements in support of her claim. To begin with, although she claimed to have attended an Anglican church from May 2016 and was so moved by the minister’s sermon that it allowed her to conclude that God was real and inspired her to continue attending the church, there is no mention of this in her October 2016 protection visa application that was written less than six months after the event. This was only mentioned in her amended statement of claims submitted in August 2017.
Whilst the Tribunal acknowledges that simple knowledge tests are not necessarily indicative of faith, the applicant was asked about the events surrounding Easter. She initially appeared to confuse the ‘loaves and fishes’ parable with Easter, and while she did know about the death and resurrection of Jesus, she thought he was resurrected on Monday, rather than Easter Sunday. Given she had allegedly been a devoted Christian for the last six years who claimed to want to preach the word of God in China on return, her lack of knowledge regarding the central commemoration in the Christian calendar does little to support her claim to be a devoted Christian.
I also note that despite claiming to be a devoted Christian she also had a civil, rather than religious service. I do not accept that she did this because her husband wasn’t Christian as it isn’t a prerequisite for an Anglican marriage for both people to be Christian. Nor did she seek to have the marriage blessed in the church following the civil service (the Anglican minister noted that he had done such a blessing for someone else previously). I do not accept that she didn’t as she felt too embarrassed given she already had a daughter – Christianity teaches forgiveness so the presence of a child should not have been any impediment to a blessing. It also lacks credibility that she would be willing to risk arrest because of her desire to spread the word of God in China but be too embarrassed to have a blessing (or marriage) in a church because she already had a child).
There are also elements about issues of timing that concern the Tribunal. Whilst I acknowledge that she has attended church for a long time, her attendance began after she knew she did not have a visa and was illegally in the country, and she submitted a protection visa application five or six months after attending church in Sydney. She received a negative decision from the Department in September 2017 and was later baptised in May 2018. I note and accept that her baptism date was at least partly up to the Anglican minister in whose church it took place. Given this, I do not consider the timing of her baptism to be adverse to her claim. I also note that her husband has also been baptised following the affirming of a negative decision against his protection visa application but also note that his initial application did not rely on a claim relating to religion and therefore do not consider the timing of his baptism either to be adverse to her claim.
Given the timing of her alleged interest in Christianity that led to her submitting a protection visa (over a decade after arriving in Australia, having remained in Australia without a valid visa and six months after she began attending church) her lack of knowledge regarding a central element of the Christian faith that was inconsistent with the amount of time that she claimed to have been a practising Christian, as well as her inability to have either a church wedding or at least have her marriage blessed, I am not satisfied that her Christian faith is genuinely held.
Because I do not accept that her faith is genuinely held, it follows that she would not seek to have her child (the second-named applicant) educated at a Christian school to maintain that faith.
Other Issues
I do not accept that the applicant’s family were Shouters in China and that the police raided a gathering, took away the leader and took the contact details of her parents and her parents’ family members. Her claim lacks any corroboration and relies entirely on her oral evidence, which I have found lacks credibility. She also made no mention of this in her October 2016 statement, and at her Departmental interview she said that they had been detained and interrogated. I do not accept that she neglected to mention it in her October 2016 statement because only the pastor had been arrested and her parents had only been detained for a day. She did mention a woman allegedly killed in a McDonalds in China in 2014 which does not appear to be relevant to her own claim, so her failure to mention her parents’ detention seems unusual to say the least.
I have taken into account a range of country information provided to the Tribunal however it relates to persecution of Chinese Christians, whereas I have found the applicant not to be genuinely Christian.
As the applicant hasn’t raised any other claims to fear persecution, and having regard to all the evidence and her claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any s 5(J)(1)(a) reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the first-named applicant is genuinely a Christian, that her daughter would be unable to access a Christian education that the applicant wanted for her, that her parents were Shouters in China and were detained and questioned by the Chinese authorities, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
As a consequence, I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to China, that there is a real risk that the applicant will suffer significant harm on the basis of these claims as set out n the complementary protection criterion set out in s. 36(2)(aa).
CONCLUDING PARAGRAPHS
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
decision
The Tribunal affirms the decision not to grant the applicants protection visas.
Rodger Shanahan
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 5001

6 December 2022

Key Legal Topics

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Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Appeal