1725894 (Refugee)

1725894 (Refugee) [2023] AATA 2516 (20 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1725894

COUNTRY OF REFERENCE: China
MEMBER:Rachel Da Costa
DATE:20 June 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 20 June 2023 at 10:09am
CATCHWORDS
REFUGEE – protection visa – China – religion – Christian – home church member – physical assault – detention – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 12 October 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 28 October 2016. The delegate refused to grant the visas on the basis that the applicants are not persons in respect of whom Australia has protection obligations.
CLAIMS AND EVIDENCE
Background
The first applicant (the applicant) is [an age]-year-old woman from China. The second applicant is [an age]-year-old boy who was born in Sydney, Australia. He is the applicant’s son.
In her protection visa application form, the applicant provided the following information. She was born in Fuqing city, Fujian province, China. She speaks, reads and writes Mandarin. She is not married.
In China, the applicant has her mother and father. She is in contact with her parents in China by phone every month. She has a brother who lives in Australia. In China, the applicant always lived at [an address in Village 1], [Town 1], Fuqing city, Fujian province. She completed High School in China in [Town 2] in [specified year].
The applicant last arrived in Australia [in] May 2007 as the holder of a Student visa. The applicant travelled on her People’s Republic of China passport issued [in] 2006. She has a new Chinese passport she obtained in Australia with an expiry date [in] 2024.
The applicant’s most recent student visa was cancelled on 15 December 2009. In Australia, from May 2007 to October 2007, she was enrolled in a course at [College 1], Sydney but she withdrew. From October 2007 onwards, she worked as [an Occupation 1].
In Form 866 Part B and Part C, the second applicant indicates that he is not raising his own claims for protection. As discussed below, the applicant confirmed this in the Tribunal hearing.
In the Tribunal hearing, the applicant provided some updated information. The applicant’s brother came to Australia in 2008. He is married and is an Australian citizen now through marriage. He has one child. He lives in [City 1] and the applicant is in contact with him occasionally.
The applicant confirmed that her parents live in Chongqing, Sichuan province, and they have lived there since 2007. The applicant’s father works in [a business] for her uncle’s company. Her mother used to do the same job but retired about two years ago because of her health. Her parents are well. Before Sichuan, they lived in [Village 1], Fuqing city and were farmers growing crops. This village in Fuqing is where the applicant always lived before coming to Australia.
The applicant has two children aged [age] and [age]. They were both born in Australia. Her partner (the children’s father) is from Fujian province, China and he arrived in Australia in 2007. The applicant met him in Australia. He is on a Bridging visa and applied for a visa last year but she does not know what type. He was living and working in [City 1] until recently but now he is living with the applicant and their sons in Sydney. He works in [specified industry]. The applicant and her partner are not married but they have been in a relationship since 2016.
Migration history
As discussed with the applicant in the hearing, her and the second applicant’s migration history is as follows:
·     16 April 2007: applicant granted a [Student visa]
·     [date] May 2007: applicant arrived in Australia
·     1 May 2009: applicant’s Student visa cancelled; applicant becomes an unlawful non-citizen
·     28 October 2016: applicant applies for a Protection visa
·     [date]: second applicant born in Australia
Evidence before the Department
Protection visa application
In a typed statement attached to her protection visa application form, the applicant makes the following claims:
·     The applicant’s parents are devout Christians.
·     The applicant’s parents hoped she could get a better education and so they sent her to Australia to study.
·     Her parents were persecuted and so she couldn’t go home.
·     The applicant’s parents had to attend the family church in secret. They asked her and her brother to believe in God. The applicant joined them but she was not very religious at the time.
·     The members of the church were very careful about church meetings.
·     In June 2006, six police broke in when they were in the meeting. Two of the police beat them. The applicant’s nose was hit and bleeding. Later, they were taken to the local police and locked in a small room. As the applicant was young, the police let her go and asked her not to attend illegal gatherings again.
·     They continued to pray and attend gatherings. As members of the church were arrested, it was unsafe for the applicant and her family.
·     Her parents wanted her to go to Australia. She came to Australia in May 2007 on a Student visa.
·     After coming to Australia, she went to church.
·     In October 2007, the applicant’s mother was arrested and detained for 15 days during one of the gatherings. The applicant’s mother was tortured and her father paid [amount] for the applicant’s mother to be released. Because of this, the government started to harass the applicant’s parents. They couldn’t run their business and suffered financial hardship. The applicant’s parents couldn’t pay her school fees so she had to work.
·     Her parents told her not to return to China because there would be risks.
·     At that time, the applicant was told she could not apply for protection and she was told she could only stay on a student visa. A lawyer told her she was too young to apply for protection at that time. Recently a sister at church told her she could apply for protection.
Interview with the delegate
The applicant attended an interview with the delegate on 27 July 2017. In the interview, the applicant provided additional information about her claims for protection and her religious practice in Australia. Where relevant, this is referred to below.
Delegate’s decision
On 12 October 2017, the delegate made her decision. The delegate considered that the applicant’s claims lack credibility. The delegate found that despite claiming to have attended church regularly in China and Australia, the applicant’s knowledge of Christianity is limited and she had not been baptised. The applicant’s lack of knowledge about the church she claimed to have attended regularly soon after arriving in Australia in 2007 was also a concern. The delegate was not satisfied that the applicant is or has been a committed and practising Christian. The delegate found that the fact the applicant departed China on her own passport without difficulty indicates that she was not a person of interest to the authorities in China. The delegate accepted the applicant’s statement that the main reason she applied for protection was because she was pregnant and she could receive a health care card to assist with the costs. The delegate did not accept the applicant’s statement that she was told by a lawyer when she arrived in Australia that she was too young to apply for protection, particularly in light of the applicant’s eight-year delay in applying, prompted by her pregnancy. The delegate found that the applicant is not a person in respect of whom Australia has protection obligations and therefore, neither is her son.
Evidence before the Tribunal
The review application
On 23 October 2017, the applicants lodged an application for review of the delegate’s decision. The applicants did not provide a copy of the delegate’s decision to the Tribunal.
The hearing
The applicant appeared before the Tribunal on 29 May 2023 to give evidence and present arguments. The second applicant, who is [age] years old, did not attend the hearing. The applicant gave evidence that he was at school. She said that the second applicant relied on her claims for protection and she was giving evidence in the hearing on his behalf. The Tribunal accepts this and considers that in all the circumstances, it was appropriate that the second applicant did not attend the hearing.
The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
Nationality and identity
The applicant claims to be a citizen of China and provided to the Department a copy of the bio-data page of her current Chinese passport. The delegate was satisfied that the applicant was using her own identity and documents.
The second applicant claims to be a citizen of China and provided to the Department a copy of his New South Wales birth certificate and the bio-data page of his mother’s Chinese passport. The information on these documents is consistent and the delegate was satisfied that all these documents were genuine. The Chinese Nationality Law provides that “…any person born in China or abroad whose parents are Chinese nationals or one of whose parents is a Chinese national has Chinese nationality”. The delegate found that the second applicant is a citizen of China. In the absence of any evidence to the contrary, the Tribunal is also satisfied that the second applicant is a citizen of China and that his identity is as claimed.
In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant and second applicant are both citizens of China. The Tribunal is satisfied that the applicant is the second applicant’s mother. The Tribunal finds that the second applicant is a member of the same family unit of the applicant as defined in s 5(1) of the Act. The Tribunal finds that China is their receiving country for the purpose of assessing their claims for protection.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
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.
Analysis, reasons and findings
The issue in this case is whether the applicants are persons in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
In the Tribunal hearing, the applicant gave evidence that a friend helped her fill out her protection visa application form. The applicant provided the information and her friend helped her to translate it. She wrote her statement of claims herself and her friend translated it. The applicant met this friend in Australia but was introduced by a relative back in China. She confirmed that everything in her application form and statement was true and correct as far as she knows and believes.
During the hearing, the Tribunal asked the applicant about her personal background, her education and employment, her family in China and Australia, her religion and religious practises, her migration history, the problems she claims to have experienced in China and why she fears returning to China. The Tribunal has various concerns about the applicant’s evidence, including differences in her evidence given over time about claimed events in China, raising a new claim for the first time in the Tribunal hearing and her evidence about her commitment to Christianity. The Tribunal’s concerns are explained in detail below. Overall, the Tribunal did not find the applicant to be a credible witness.
As noted above, in the Tribunal hearing the applicant confirmed that the second applicant relied on her claims and was not making his own claims for protection, and that she was giving evidence on his behalf. The Tribunal accepts this.
The applicant’s claim to have been harmed as a Christian in China
In her written statement, the applicant gave evidence that her parents attended family church in China in secret. They asked the applicant to believe, and she joined them but she was not very religious at the time. In June 2006, six police broke in when they were in the meeting. Two of the police beat them. The applicant’s nose was hit and bleeding. Later, they were taken to the local police and locked in a small room. As the applicant was young, the police let her go and asked her not to attend illegal gatherings again. They continued to pray and attend gatherings. As members of the church were arrested, it was unsafe for the applicant and her family. Her parents wanted her to go to Australia. She came to Australia in May 2007 on a Student visa. In October 2007, the applicant’s mother was arrested and detained for 15 days during one of the gatherings. The applicant’s mother was tortured and her father paid [amount] for the applicant’s mother to be released. Because of this, the government started to harass the applicant’s parents.
In the interview with the delegate, the applicant gave evidence that she was harassed while gathering in 2006. The applicant’s parents were not at the gathering when the police came. It was at a friend’s house in her hometown. The applicant was detained for three or four hours and told not to gather any more. She went home and nothing else happened. She sometimes went to church again at her friend’s house. Before she left for Australia, her parents were harassed by the police too.
In the Tribunal hearing, the applicant gave evidence that in China when she was growing up, her parents would gather with six or seven other people from [Village 1] to preach the gospels. During the gatherings they would pray and read scriptures and sing hymns. The applicant attended occasionally with her parents, every one or two months. They did not go to a church. These gatherings took place twice a week and they always met at the same place, which was in the home of the applicant’s parents. They did not meet anywhere else. The applicant was not involved with any other religious activities in China and nor were her parents.
The applicant gave evidence that in 2006 she was in a gathering with six or seven other people, her parents were not there, and five or six people in uniform came into the gathering and asked them why they were gathering. One brother said it was because they believe in Jesus, but the uniformed people did not believe them and accused them of being a cult. They took the applicant and the others away for an interview and then they let them go. She thinks they took them to the detention centre in the village. They were beaten while at the detention centre. The applicant was beaten and kicked and had bruises. That is all. She had an injured foot. Afterwards, her parents took her to the village clinic but the doctor said her injuries were not severe. The Tribunal asked the applicant how she and the others were released. She said they were detained for a couple of hours and then released all together. The Tribunal asked her why they were released and she said because the people who detained them couldn’t ask more questions. She then went on to say that the gatherings had been raided before. The Tribunal asked her about that. She said that on previous occasions the people who raided them asked the same questions and this had happened quite a few times. She said she could not remember how many times, but they had been raided at home quite often.
The Tribunal put to the applicant that there were a number of differences in her evidence to the Tribunal from what she had said previously about what happened, which raised a concern. She said she could not remember the specific details clearly. The Tribunal asked her why she had not mentioned the past raids in her written statement. The applicant said that it was because she didn’t think of it previously. The Tribunal put to the applicant that it might find the reason was because these things didn’t happen. The applicant responded that at the time she could not remember all the things that happened and she was hurt and having emotional shock. The Tribunal pointed out that her written statement was from 2016, which was a long time after the claimed events. The applicant said that at the time, she was shocked by what happened and could only remember partially, but for several years she has been thinking about it again and some things came back to her mind. The Tribunal asked her whether she had ever had any medical treatment for psychological issues and she said she had not.

The Tribunal has a number of concerns with aspects of the applicant’s evidence about these claimed events in 2006. For example, in the interview with the delegate, the applicant said that the harassment or raid took place when she was attending a gathering at her friend’s house. In the Tribunal hearing, the applicant gave evidence that the gatherings always took place at her parents’ house. In her written statement, the applicant gave evidence that in the raid she suffered a blood nose. In the Tribunal hearing, she said she received bruises from being kicked and beaten and that was all. She did not refer to receiving a blood nose. These differences in the applicant’s evidence over time about the location of the raid and the injuries she sustained raise concerns for the Tribunal about the credibility of her claims. These are the types of details the Tribunal would expect an applicant to be able to remember consistently if the claimed events truly happened.
Further, the applicant raised a new claim for the first time in the Tribunal hearing that these raids had happened at her house quite often before the particular raid in 2006 she referred to in her written claims. The Tribunal has considered the applicant’s explanation that she had not mentioned these additional raids in the past because she was hurt and shocked and the full memory had only come back to her later, however the Tribunal does not accept this explanation. The Tribunal accepts that trauma and the passage of time can affect a person’s memory, however the applicant has not provided medical evidence to suggest that she has issues with her memory or is suffering from trauma. She did not claim to have difficulty remembering other things. The applicant’s written statement was prepared in 2016, some 10 years after the claimed events. The Tribunal finds it difficult to accept that the applicant had not remembered those various other raids by that time, but several years later these memories had come back to her. In the Tribunal’s view, if the 2006 raid mentioned in the applicant’s written statement was the last in a series of raids at her house that had been happening over time, the Tribunal finds it difficult to accept that she would remember only that single raid at the time she prepared her written statement in 2016, but later she would come to remember that various other raids had taken place “quite often”. This new claim raised by the applicant for the first time in the Tribunal hearing raises further concerns about the credibility of her claims.
In the hearing, the Tribunal asked the applicant whether she had any problems after the claimed incident in 2006. She said she did not because she was afraid and her parents were afraid so they urgently sent her abroad. The Tribunal observed that the claimed incident happened in 2006 and the applicant didn’t come to Australia until May 2007, which did not sound like an urgent departure. The applicant responded that issuing passports takes time.
The Tribunal asked the applicant whether her parents had any problems after the claimed incident. The applicant said that previously, they had been raided several times and had been asked to stop gathering but they didn’t listen. After the applicant came to Australia, her parents moved to Sichuan province. The Tribunal asked her whether her parents had further problems with the authorities after she left. She said that the authorities are still looking for her and her parents. She knows this because brothers and sisters from the village told her parents that. Nothing else happened to her parents after she left China.
The Tribunal reminded the applicant that in her written statement she said that in October 2007 her mother was arrested and detained for 15 days and tortured, and her father paid money to secure her release. The Tribunal expressed its concern that the applicant had not mentioned this in the hearing as it seemed like a serious event. The applicant responded that at the time, her parents did not mention this to her and they didn’t want her to be worried so they did not tell her. The Tribunal has considered the applicant’s response but does not accept it as it does not explain why the applicant did not mention this event in the hearing despite being given the opportunity to mention any problems her parents had experienced with the authorities after she left China. Her response that her parents did not tell her about the event until later does not address the Tribunal’s concern and raises a doubt about whether this claimed arrest and torture of her mother truly took place.
For all the reasons explained above, the Tribunal has concerns about the truthfulness of the applicant’s evidence about the claimed events in China. Having considered all the applicant’s written and oral evidence, the Tribunal does not accept that the applicant’s parents are or were Christians. The Tribunal does not accept that the applicant was a Christian in China. The Tribunal does not accept that the applicant’s parents used to host family church gatherings in their home several times a week before the applicant left China, or that the applicant used to attend these gatherings from time to time. As the Tribunal does not accept that these gatherings took place, it follows that the Tribunal does not accept that these gatherings were raided many times or at all, or that the participants had to be very secretive about the gatherings. The Tribunal does not accept that in 2006, the applicant was at a gathering in her home, or at a friend’s home, which was raided by uniformed officers. The Tribunal does not accept that the applicant and the other people were beaten or questioned by the officers at the place of the gathering or that they were taken into custody at the local detention centre and beaten or questioned there. The Tribunal does not accept that the applicant sustained a blood nose, or bruises, or any other injuries. The Tribunal does not accept that the applicant and the others were released with a warning not to participate in gatherings again. The Tribunal does not accept that the gatherings continued despite the warnings or that the applicant and her parents continued to attend such gatherings at their home or at the home of a friend of the applicant, or that attending the gatherings was unsafe for them. As the Tribunal does not accept that the claimed events took place, it follows that the Tribunal does not accept that the applicant’s parents were harassed by the police before or after the applicant left China as a result of their involvement in the gatherings. The Tribunal does not accept that the applicant’s mother was arrested and tortured in October 2007, or at any other time, or that her father had to pay money to secure her release. The Tribunal does not accept that after this, the government started to harass or persecute her parents or that this meant they could not run their business and they suffered financial hardship as a result. The Tribunal does not accept that the authorities are still looking for the applicant and her parents. As the Tribunal does not accept that the claimed events occurred, it follows that the Tribunal does not accept that the applicant had to flee China urgently for the reasons claimed, or at all.
The Tribunal is prepared to accept that the applicant’s parents moved to Sichuan province in 2007 and worked for the applicant’s uncle in his [company] but it does not accept that their move was for a reason connected to the claims made by the applicant about her parents’ activities as Christians in Fujian or them escaping the authorities in their local area for that reason.
The applicant’s practice of Christianity in Australia and if she returns to China
In the Tribunal hearing, the applicant gave evidence that she is a Christian. She said that sometimes she goes to church and sings songs and prays and reads the bible with “brothers and sisters”. The applicant gave evidence that before having her children, she would occasionally go to a church in [Suburb 1]. She said the name of the church is “[name]” and she thinks it is [at an address in Suburb 1]. She does not know the name of the priest. She does not know the name of any of the people who lead the church services, but a “brother” there used to help her. She goes to church every few months. She doesn’t go out much because her children are naughty. The last time she went to church was about one month ago. She said can’t remember clearly what the sermon was about but it was about the birth of Jesus in a stable.
The Tribunal asked the applicant what being a Christian means to her. She responded that “after I die I can go to heaven”. The Tribunal asked her whether there was anything else and she said “no”. The Tribunal asked the applicant how she lives her Christianity in her daily life and she said she prays, but nothing else. The Tribunal asked the applicant whether she could tell it anything about the message of Jesus. The applicant said that Jesus preaches gospels and he taught us to spread the gospels to other people. He tells us not to harm anyone. The applicant confirmed that neither she nor her children are baptised. She said her husband is a Christian but he only goes to church occasionally because he is busy with his work.
The Tribunal asked the applicant whether she would practise as a Christian if she returned to China, and why. She said that she would because she believes in Jesus and so she would follow him. The Tribunal asked her where she would practice and she said she is not sure because she is afraid to go back. The Tribunal asked the applicant how she would practise her Christianity in China and she said she would find an official church and practice her faith.
The Tribunal put to the applicant that based on her evidence, it might find she is not a committed Christian and her son is not a Christian, and it might find that if she returned to China she would not practise Christianity and neither would her son. The applicant responded that the child is young and he doesn’t understand everything and if they all return to China, she has already experienced what she told the Tribunal and if the child is arrested she can’t bear it. The Tribunal has considered the applicant’s response but does not accept it as it does not respond to the Tribunal’s concern. Further, for the reasons explained above, the Tribunal does not accept the applicant’s claims about what happened to her in China.
The Tribunal notes that in her interview with the delegate in July 2017, the applicant gave evidence about her sporadic church attendance in [Suburb 1], her lack of knowledge of people in the church congregation and that she was not baptised. Her evidence in the Tribunal hearing suggests that the situation has not changed since that time, other than that the applicant has now had two children and does not claim to be involving them in Christian activities such as attending church or being baptised. The delegate noted in her decision the applicant’s limited knowledge of Christianity and the Tribunal holds the same view in light of the applicant’s simple responses to the Tribunal’s questions about her faith. The Tribunal is prepared to give the applicant the benefit of the doubt and accept that she self-identifies as a Christian and that she attends church in [Suburb 1] occasionally. However, based on the evidence before it, the Tribunal does not accept that the applicant is a committed, practising Christian in Australia or that she is raising her children to be practising Christians. The Tribunal has considered the applicant’s evidence that she would practice her faith if she returned to China because she believes in Jesus and she would worship in an official church. The Tribunal has found above that the applicant was not a Christian in China. Further, based on the evidence before it about the applicant’s religious activities in Australia, including the applicant’s lack of practice of her faith in Australia where she could do so free of fear of harassment from the authorities (which is what she claims happened to her in China) the Tribunal finds that the applicant and the second applicant would not attend church or otherwise practise as Christians if they returned to China in the reasonably foreseeable future.
Do the applicants meet the refugee criterion?
In her written statement of claims, the applicant states that she fears returning to China because her parents were persecuted as a result of their religious activities and they told the applicant not to return to China because there would be risks. In the interview with the delegate, the applicant stated that she cannot return to China because she and her parents were harassed by the police during their Christian worship activities and she is afraid that if she returns she will be persecuted. In the Tribunal hearing, the applicant gave evidence that she fears returning to China because of the police raiding their family church gathering in 2006 and if she returns, she fears she and her children will be arrested because the authorities regarded their activities as a cult. As set out above, the Tribunal has found that the applicant was not a Christian in China, that the claimed events, including the raid or raids on the family church gatherings did not take place and that the applicant’s parents were not persecuted as a result of these claimed events. Therefore, the Tribunal does not accept the applicant’s claims. In light of this, the Tribunal finds that if the applicant and the second applicant returned to China in the reasonably foreseeable future, they would not face a real chance of serious harm arising from these circumstances.
For the reasons explained above, the Tribunal has found above that the applicant and the second applicant would not attend church or practice as Christians if they returned to China in the reasonably foreseeable future. Nevertheless, the Tribunal has considered whether the applicant’s sporadic attendance at the church in [Suburb 1] would result in her or her son facing harm from the Chinese authorities, even though the applicant did not make such a claim. Country information from the current Department of Foreign Affairs and Trade Country Information Report, People’s Republic of China,[1] does not indicate that occasionally attending a mainstream church in Australia would put a person at risk of serious harm on their return to China. Based on the evidence before it, there is nothing to indicate that the church in [Suburb 1] is connected to any religious movements that are illegal in China or that this type of church is regarded as a ‘cult’.[2] Accordingly, the Tribunal finds that the applicant and the second applicant would not face a real chance of serious harm arising from these circumstances if they returned to China in the reasonably foreseeable future.
[1] Dated 22 December 2021 (the DFAT Report).
[2] DFAT Report 3.53 – 3.78.
Taking into account the findings set out above and the country information referred to in this decision, and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicants return to China now or in the foreseeable future that they face a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason.
Accordingly, the Tribunal is not satisfied that the applicants have a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicants have a well-founded fear of persecution, it is not satisfied that the applicants meets the definition of refugee in s 5H(1). As the applicants do not meet the definition in s 5H(1), the Tribunal is not satisfied they are persons in respect of whom Australia has protection obligations under s 36(2)(a).
Do the applicants meet the complementary protection criterion?
As the Tribunal has found that the applicants do not meet the refugee criterion in s 36(2)(a) of the Act, it has considered whether the applicants meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).
As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[3] for the same reasons as those set out above, the Tribunal finds that the applicants do not face a real risk of significant harm. Therefore, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to China, there is a real risk that they will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).
[3] MIAC v SZQRB [2013] FCAFC 33
Conclusion
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.
Rachel Da Costa
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.
…

[2023] AATA 2516

20 June 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction