1725748 (Refugee)

[2021] AATA 5123

1725748 (Refugee) [2021] AATA 5123 (5 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1725748

COUNTRY OF REFERENCE:                  China

MEMBER:Dominic Triaca

DATE:5 November 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 05 November 2021 at 8:50am

CATCHWORDS
REFUGEE – protection visa – China – religion – Buddhist – convert to Islam – divorced by husband and disowned by family – fear of abuse and pressure to change religion – divorce because of husband’s absence for work and applicant’s health – vague and unconvincing evidence of religious conversion and practice – minimal knowledge and practice of Islam – credibility – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA(2), 5H(1), 5J(1), 36(2)(a), (aa), 65, 91R
Migration Regulations 1994 (Cth), Schedule 1, cl 1401, Schedule 2, cls 866.1 to 866.611

CASES
AKH16 v MIBP (2019) 269 FCR 168
AON15 v MIBP (2019) 269 FCR 184
Chan v MIEA (1989) 169 CLR 379
Chen Shi Hai v MIMIA (2000) 201 CLR 293
MIEA v Guo Wei Rong and Pam Run Juan (1996) 50 ALD 445
MIEA v Guo (1997) 191 CLR 559
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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 September 2017 to refuse to grant the visa applicants a Protection (Class XA) Subclass 866 visa under s. 65 of the Migration Act 1958 (the Act)[1]. If granted, a Subclass 866 protection visa permits a non-citizen to remain in Australia indefinitely.

   [1] See Migration Regulations 1994 (Cth), Sch 1, cl 1401; Sch 2, cls 866.1 to 866.611

2. The applicant is a citizen of the People’s Republic of China. She was born on [date]. She arrived in Australia on a Visitor visa [in] August 2015. She applied for a student visa on 4 November 2015. On 9 December 2015 she applied for a Protection Visa, the subject of this application. She subsequently withdrew her application for a student visa.

3. The visa applicant applied for a visa on 9 December 2015. The delegate refused to grant the visa on the basis that they were not satisfied that the applicant was a person to whom Australia has protection obligations as outlined in s.36(2) (a) or (aa) of the Act and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s.36(2)(b) and s.36(2)(c) of the Act).

1. The applicant appeared before the Tribunal on 27 October 2021 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

2. For the following reasons, the tribunal has concluded the decision under review should be affirmed.

RELEVANT LAW

1. The criteria for the grant of a protection visa are set out in s. 36 of the Act and Schedule 2 of the Regulations. An applicant must establish that they are a non-citizen of Australia and that they are either:

   (a)A person in respect of whom Australia has protection obligations because that person is a refugee (the refugee criterion)[2];

   (b)A person in respect of whom Australia has protection obligations because of other complementary protection grounds (the complementary protection criterion)[3]; or

   (c)A member of the same family unit of a person who has been granted a protection visa on refugee or complementary protection grounds (family member criterion)[4].

   [2] Migration Act 1994 (Cth), s 36(2)(a)

   [3] Migration Act 1994 (Cth), s 36(2)(aa)

   [4] Migration Act 1994 (Cth), s. 36(2)(b),(c).

2. 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 protection in that country.[5] 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 they are unable or unwilling to return to that country.[6]

   [5] Migration Act 1994 (Cth), s 5H(1)(a)

   [6] Migration Act 1994 (Cth), s 5H(1)(b)

1. 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 of the Act.

1. The term persecution is not expressly defined in the Act. The standard Australian dictionary, the Macquarie Dictionary, defines the verb to "persecute" as "to pursue with harassing or oppressive treatment; harass persistently" and relevantly, "to oppress with injury or punishment for adherence to principles".[7]

   [7] SEE CHEN SHI HAI V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS [2000] HCA 19; 201 CLR 293 AT [61] TO [65] FOR A DETAILED DISCUSSION OF THE MEANING OF PERSECUTION.

1. Section 5J of the Act states that for the purposes of the application under the Act a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race nationality, membership of a particular social group or political opinion’ and that there is a real chance they will be persecuted for one or more of these reasons in the event they return to their receiving country. The real chance of persecution must also relate to all areas of the receiving country.[8]

   [8] Migration Act 1958 (Cth) 5J(1)(c)

1. In Chan v MIEA[9] the Court, when considering ‘well-founded fear’ for the purposes of the Refugee Convention, held that involves both a subjective and objective element.[10] Mason CJ said at 389:... If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring. Dawson J said at [397] ‘Upon any view, the phrase contains both a subjective and an objective requirement. There must be a state of mind - fear of being persecuted - and a basis - well-founded - for that fear. Whilst there must be fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear ‘and at 398 that a “real chance is one that is not remote regardless of whether it is less or more than 50%”.Toohey J said at 407:The test suggested by Grahl-Madsen, “a real chance”, gives effect to the language of the Convention and to its humanitarian intendment. It does not weigh the prospects of persecution but, equally, it discounts what is remote or insubstantial. It is a test that can be comprehended and applied. McHugh J said at 429:...a fear may be well-founded for the purposes of the Convention and Protocol even though persecution is unlikely to occur...an applicant for refugee status may have a well-founded fear of persecution even though there is only a ten per cent chance that he will be...persecuted.

   [9] (1989) 169 CLR 379

   [10] the meaning of “well-founded fear of persecution”, and “real chance” of persecution were the subject of earlier judicial commentary when the applicable tests were found in the Refugees Convention. Those authorities remain apposite. In AKH16 v Minister for Immigration and Border Protection[2019] FCAFC 47;  (2019) 269 FCR 168 (AKH16) (Besanko, Middleton and Mortimer JJ) and AON15 v Minister for Immigration and Border Protection[2019] FCAFC 48; (2019) 269 FCR 184 (AON15)(Besanko, Middleton and Mortimer JJ) the Full Court usefully discussed some of the main authorities.

1. There are four key elements of the Convention definition.

2. First, the applicant must be outside his or her country.

3. Second, the applicant must fear persecution. Under s. 91R(1) of the Act, persecution must involve serious harm to the applicant (S.91R(1)(b), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of serious harm set out in s.91R(2) including (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; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

4. Third, the persecution which the applicant fears must be for one or more of the reasons set out in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion.

5. Fourth, the applicant’s fear of persecution must be ‘well founded’ fear.

6. The Act provides that a person is only considered to have a ‘well founded’ fear of persecution if three elements are satisfied.

   (a)They fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;[11] and

   (b)There is a real chance that, if they are returned to their home country, they would be persecuted for one or more of those reasons;[12] and

   (c)The real chance of persecution relates to all areas of the receiving country.[13]

   [11] Migration Act 1958 (Cth), s 5J(1)(a)

   [12] Migration Act 1958 (Cth), s 5J(1)(b)

   [13] Migration Act 1958 (Cth), s 5J(1)(c)

7. In the event that a person fears persecution for one or more of the prescribed reasons, the Act imposes the following three further requirements[14]:

   (a)The identified reasons(s) for the persecution must be the essential and significant reason(s) for the persecution;

   (b)The persecution must involve serious harm to the person; and

   (c)The persecution must involve systematic and discriminatory conduct.

   [14] Migration Act 1958 (Cth), s 5J(4)(a)(b)(c)

8. A person will not have a well-founded fear of persecution if effective protection measures are available to the person in their home country or if the person could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in their home country.[15] In determining whether a person has a well-founded fear of persecution, any conduct engaged in by that person in Australia is to be disregarded unless the person satisfies the tribunal they engaged in the conduct otherwise then for the purpose of strengthening their claim to be a refugee.[16]

   [15] Migration Act 1958 (Cth), s 5J(2) and (3)

   [16] Migration Act 1958 (Cth), s 5J(6)

9. 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 gran 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 consequences 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) & (2B) and extracted in the attachment to this decision.

1. An applicant is considered not to be at real risk of suffering significant harm in a country if it is reasonable for the applicant to relocate to an area of that country where there is no real risk that the applicant will suffer significant harm[17],or the tribunal is satisfied that the applicant could obtain protection from an authority all that country such that they would not be a real risk that the applicant would suffer significant harm or the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally. That is, the level of protection must be such that the risk that the applicant will suffer significant harm is less than a real risk.[18]

   [17] Migration Act 1958 (Cth), s.36(2B)(a)

   [18] Migration Act 1958 (Cth), s.36(2B)(b).

1. The tribunal has concluded that the decision to refuse the applicant a protection visa ought to be affirmed in this case, for the reasons which are set out below. In reaching its decision, the tribunal has had regard to:

   (a)The delegate’s decision record;

   (b)The applicant’s original written visa application;

   (c)The oral evidence and arguments of the applicant presented at the hearing;

   (d)The oral evidence of the applicant at the hearing;

   (e)All written material filed by or on behalf of the applicant in relation to this case;

   (f)Other relevant documents on the Tribunal and Department files;

   (g)The ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs’[19];

   (h)Country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, also mandatory considerations under Direction No. 84.

   [19] These are mandatory considerations as prescribed by Ministerial Direction No. 84, a direction made under s.499 of the Act (Direction No 84)

2. Not all the evidence and material that has been placed before the tribunal is specifically referred to in the tribunal’s reasons set out below. The reasons refer to information that is materially significant to the determination of the issues at hand.

Mandatory Considerations.

1. 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 (the Department), 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.

Analysis of Evidence and Factual Findings.
Credibility.

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

2. 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.[20] Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative enquiries and decision making[21], a decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim^.[22] Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[23]

   [20] MIEA v Guo & Anor (1997) 191 CLR 559 at 596

   [21] Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288

   [22] Migration Act 1958 (Cth) s.5AAA

   [23] MIEA v Guo (1997) 191 CLR 559 at 596

1. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility[24]. Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

   [24] Minister for Immigration and Ethnic Affairs and McIlhatton v Guo Wei Rong and Pam Run Juan (1996) 50 ALD 445 per Foster J at p.482

1. If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt where they are unable to fully substantiate their claims[25].  However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible and must not run counter to generally known facts.

   [25] Department of Home Affairs, PAM 3: ‘Refugee Law Guidelines’, [15.3]

2. The tribunal is not obliged to assist the applicant make their case. Nor is it required to accept uncritically and or all of their claims. It is the responsibility of the applicant to specify all particulars of their claim and to provide sufficient evidence in support of it.[26]

   [26] Migration Act 1958 (Cth), s.5AAA(2)

CONSIDERATION OF CLAIMS AND EVIDENCE

1. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Assessment details.

1. In this case, the tribunal is satisfied that the applicant is a citizen of China and of their general personal background is as described by the applicants in their evidence before the Tribunal, and the delegate and their original protection visa application. In this respect the tribunal finds:

   (a)The applicant is a citizen of China.

   (b)China is the country of reference for the purpose of assessing the application against the criteria for the grant of a Subclass 866 visa.

   (c)The applicant’s identity is as set out in her application.

The Applicant’s Claims.

1. The applicant’s claims are set out in the Delegate’s decision as follows:

   (a)The applicant changed her religion from Buddhism to Islam. Her family has refused to accept her new faith and punished her in different ways.

   (b)She decided to convert to Islam after travelling to [Country 1].

   (c)Her Husband divorced her because she chose a new faith.

   (d)She was disowned by her family.

   (e)Her family forced her to close her company and to cancel her life insurance.

   (f)If she returns to China, she will be mistreated and emotionally abused by her family and friends. She has been threatened with physical harm and she will be pressured to change her religion.

The applicant’s background.

1. The applicant is from the Jilin province. Prior to arriving in Australia, she worked in Beijing as [an Occupation 1] and as [an Occupation 2].

2. The applicant’s parents separated when she was a child. She lived with her mother. She saw her father on holidays. Her mother was a Buddhist, and she says that she was a Buddhist from the time she was about 14 years of age. She subsequently converted to Islam in 2014, following a trip to [Country 1]. She was married in 2012 and divorced in December 2014.

3. The applicant travelled to Australia in 2015 on a tourist visa. She subsequently applied for a student visa, before applying for protection, the subject of this application. She enrolled in [a course] at [an institution]. She did not complete this course. She says that she is currently studying [subject]. She works in a [workplace] in [suburb] in the State of Victoria.

The applicant’s change of religion from Buddhism to Islam. Her decision to convert to Islam after travelling to [Country 1].

1. The applicant’s evidence is that her mother was a Buddhist. She says that when her parents separated, she began to have more contact with Buddhism and described herself as a Buddhist from the time she was about 14 years of age.

2. In 2014 she says that she met [a Country 2] citizen who was studying in China. She says that she he invited her to travel to [Country 1] to act as an interpreter and she travelled with him in October 2014 for approximately 1 month. During this time she was introduced to Islam. She says that in China she had health problems and she believes that the Islamic diet, which forbids the eating of pork, assisted her in recovering from her health problems.

3. When she returned to China, she told her friends and family that she intended to convert to the religion of Islam.

Her family has refused to accept her religion and has punished her in different ways. Her family has disowned her. Her Husband divorced her due to her because she chose her new faith.

1. The applicant reports that when she returned to China, her family did not accept her religion as a Muslim. However, her evidence falls well short of establishing that she was disowned because of her change of religion or that religious reasons caused her divorce.

2. The applicant’s evidence of her familial relationships is as follows. Her mother died in 2011. Her father lives with her stepmother. She also has a stepbrother. She says that she speaks to her father every day. She says that they do not ‘get involved’ with religious issues. She says that her stepmother had not approve of the Muslim religion and told her that she would not have a burial place when she died if she practiced that religion. She also stated that her family had ‘teased’ her about Islam by her father, stepmother and stepbrother and told her it was a terrorist religion.

3. She says that she has had disagreements with her father in the past. He did not support her marrying her Husband, but subsequently did not support her divorce.

4. When asked by the tribunal if she was harmed or threatened because of her religion, she stated that her ex-husband had ‘slapped her twice’ in about 2014. There is no other allegation of harm or punishment because of her change of religion.

5. In circumstances in which the applicant’s biological mother is deceased, and her father speaks to her regularly, I do not accept that her change of religion has resulted in her being disowned by her family. It may be that her family’s teasing could be characterised as them not accepting her religion. However, I do not consider this evidence is of such a nature that it demonstrates an instance of serious harm or persecution. I also do not consider that teasing between family members has an ‘official quality’ or is of such a nature that the government is required to protect the applicant from. I do not consider that the applicants evidence suggests there is any evidence of a motivation on the part of her family to inflict harm on her.

6. The applicant’s evidence in relation to her ex-husband contradicts her claim that he divorced her due to her religious beliefs. The applicant’s evidence is that her marriage failed on account of several reasons. She says that her Husband worked as an [Occupation 3] and would often work very long hours which effected their relationship. She also stated that she had health issues and had surgery in January 2014 as a result. The applicant’s evidence is it took her a long time to recover, and she kept her distance from her Husband during this period. She says that her ex-Husband slapped her in 2014, however, she agreed that she would not return to her him, so I do not consider that this allegation of domestic violence places her at an elevated risk upon her return home.

7. The applicant gave further evidence in relation to her ex-Husband as follows. She says that she became concerned about her ex-Husband’s mental health whilst in Australia. He deleted and blocked her on We-Chat and no longer spoke to her. She says that their relationship Is not good. She seemed upset that she could not contact him as he continued to hold some of her belongings. She says that she ‘was shocked’ in 2020 to learn that he had closed his company in 2019. She was concerned that she had ‘heard’ her ex-Husband was hospitalised due to depression and she was suspicious as to why she was unable to contact him. She says that she is concerned that her Husband’s mental health issues will impact on her ability to study and work normally. She says that she is concerned about returning home as she is ‘not confident’ to face him.

8. The Tribunal considers that the applicant’s evidence in relation to her ex-Husband is vague and difficult to follow. I accept that he did not support the applicant’s change of religion in 2014. I accept that he may have referred to Islam as a terrorist organisation. However, in circumstances in which the applicant says they divorced in December 2014, she has no intention of returning to the marriage and he will not respond to her attempts to communicate with him, the Tribunal does not consider that her relationship with her ex-Husband has any bearing on her need for protection.

Her family forced her to close her company and to cancel her life insurance.

1. I do not accept this claim. When asked about this aspect of the claim, the applicant’s evidence was that she became concerned in 2020 when she was advised that in 2019 her Husband closed his company which meant she no longer had insurance. She was disappointed that he had done this unilaterally and that she had not been advised of the situation until the following year. I consider that this matter has no bearing on her application.

The applicant’s conversion to Islam.

1. I accept that the applicant travelled to [Country 1] in 2014 with a friend from [Country 2]. I accept that either prior to travelling to [Country 1] or during this travel, she was introduced to the religion of Islam and returned to China with an intention to convert to Islam. I accept that prior to 2014 she had been a Buddhist.

2. However, the applicant’s evidence in relation to her conversion and practice of religion is vague and unconvincing. Her knowledge of the religion was minimal. I do not accept that she is a genuine practitioner of the religion. Whilst she may have had an intention to convert to Islam upon her return from [Country 1] in 2014, and may have expressed this intention to her friends and family, I do not consider that she actually followed through with her intention in any meaningful way.

3. The applicant’s evidence is that in Australia she was unable to read the Koran due to the lack of Chinese translation. She says that she reads it from her phone where she can download a Chinese version, however it is not apparent that this is a regular event. She says that she learns about Islam from her two housemates that are Muslims and she is able to ask them questions. She displayed a basic knowledge of Ramadan and was able to tell a story about a male master’s obligations to his wife and satisfy her demands. However, she was unable to identify Mohammad as the last prophet of Islam, and said that she did not ‘pray as often as other Muslims because her housemate said that the requirement of prayer ‘depends on her personal situation’ and at the present time her priority was study. She does not attend a Mosque in Melbourne. She expressed some uncertainty in relation to the differences between Sunni and Shia Muslims, which was surprising to the Tribunal in circumstances in which the applicant says she has been a Muslim for 7 years. I do not consider that she has any knowledge of the religion that cannot be gleaned from a simple internet search.

4. Had I accepted that the applicant was a genuine convert, it would not follow that conversion to Islam meant she is likely to face discrimination for the Convention reason of her religious beliefs. The Tribunal has regard to Country information[27], which states that Muslims account for 1.8 percent of the population (approximately 25 million people). The applicant did not provide any information to suggest that she was likely to be discriminated against, an any official level, on account of her religious belief. Her evidence is that she was able to practice her religion between her return from [Country 2] in November 2014 and her travel to Australia in August 2015. I see no reason why she would not be able to practice her religion in China upon her return if she wished to do so.

If she returns to China, she will be mistreated and emotionally abused by her family and friends. She has been threatened with physical harm and she will be pressured to change her religion.

[27] DFAT Country Information Report People’s Republic of China at [3.50] to [3.60]

1. In circumstances in which I have found the applicant is not a genuine practitioner of Islam, I do not accept that the above is an accurate statement.

2. In any event, if the applicant returns to Beijing, I do not consider that she is likely to be mistreated or emotionally abused by her family and friends if she seeks to practice Islam. Whilst the applicant’s evidence is that her family did not accept her religion and she had been ‘teased’ as a result, I do not consider that her evidence suggests that she is the subject of emotional abuse by her family and friends. I consider that her evidence was to the effect she had a relatively good relationship with her father and they were in regular contact despite her living overseas. In this context, it is difficult to fathom her claims of mistreatment or emotional abuse.

3. In any event, the applicant is [age] years old. If she does not wish to see her family or friends upon her return home, she need not do so. Her evidence was that she has previously worked in Beijing, one of the biggest cities in the world. I consider she is well able to live and work in Beijing upon her return without the associating with people who do not accept her religious beliefs. It follows that I do not accept that she will face pressure to change her religion.

4. One further matter in relation to the perception that she will face pressure to change religion is as follows. The applicant’s religious background as a Buddhist is connected to her late mother and was not developed until after her parents separated. As such it is difficult to see how her father’s family would be particularly affected by her decision to cease being a Buddhist in 2014.

5. I do not accept that she will be threatened or physically harmed because of her religion. When asked about this aspect of her claim, she referred to an incident of domestic violence in relation to her ex-Husband. Whilst this was a disgraceful incident, I do not consider that it follows that the applicant is likely to face threats or assault due to her religious beliefs in China in circumstances in which she divorced her Husband approximately 7 years ago. Further, the incident appears to have occurred in the context of a relationship breakdown for which she says there were multiple reasons, so I do not consider it is directly linked to her religious views.

Factual Findings.

1. I make the following findings in relation to the applicant’s core claims. In this case, the tribunal is satisfied that the applicant is a citizen of China and of her general personal background as described by the applicant in his evidence before the Tribunal, and the delegate and her original protection visa application. Having regard to all the evidence, the tribunal finds:

   (a)The applicant is a citizen of China.

   (b)China is the country of reference for the purpose of assessing his application against the criteria for the grant of a Subclass 866 visa.

   (c)The tribunal is not satisfied the applicant faces a real chance of serious or significant harm for the reasons claimed.

   (d)The tribunal is not satisfied that if the applicant returns to China, she fears persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion or that there is a real chance that, if they are returned to their home country, she would be persecuted for one or more of those reasons or that the real chance of persecution relates to all areas of China;

   (e)The tribunal is not satisfied the applicant has a well-founded fear of persecution;

   (f)The tribunal is not satisfied the applicant is a refugee in accordance with s.5H(1) of the Act; and

   (g)The Tribunal is not satisfied the applicant is a person in respect of whom Australia has protections obligations pursuant to s.36(2)(a) of the Act.

2. Accordingly, I find that there is no real chance of her being persecuted or suffering harm in the reasonably foreseeable future.

3. Considering the applicant’s individual circumstances on a cumulative basis, the tribunal finds there is no real chance that in the reasonably foreseeable future the applicant would be persecuted for any reason. Any fear the applicant has is not well founded as required by s.5J of the Act. Accordingly, the tribunal finds the applicant does not meet the refugee criterion.

Does the applicant meet the Complementary Protection Criterion?

1. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the tribunal has considered the alternative criterion on s.36(2)(aa). A person will meet the complementary protection criterion if they are a non-citizen in Australia in respect of whom the tribunal is satisfied that Australia has protection obligations because the tribunal 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 [they] will suffer significant harm.[28]

   [28] Migration Act 1958 (Cth), s 36(2)(aa)

2. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

3. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

4. The tribunal is not satisfied 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 any of the criteria in s.36(2).

5. For the reasons set out above, the tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to China, there is a real risk the applicant will suffer significant harm.

Conclusion

1. The tribunal is not satisfied that the applicant meets either the refugee criterion or the complementary protection criterion.

DECISION

66.The Tribunal affirms the decision not to grant the applicant a protection visa.

Dominic Triaca
Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

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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.

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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.

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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.

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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.

1. 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.

2. 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.

3. 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.

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1. Protection visas – criteria provided for by this Act

…

1. 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.

…