1725974 (Refugee)

1725974 (Refugee) [2023] AATA 4134 (28 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Harry HUANG (MARN: 9579277)
CASE NUMBER:  1725974
COUNTRY OF REFERENCE:                   China
MEMBER:Mr S Norman
DATE:28 September 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that [the first named applicant] satisfies s 36(2)(a) of the Migration Act; and
(ii)that [the other applicants] satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 28 September 2023 at 12:08pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Yiquan Dao – learned from and practiced with family and family friend – after applicant’s arrival in Australia, father and family friend arrested and sentenced to re-education through labour and shops demolished – delay before finding temple, initiation and practice in Australia, and lengthy period as unlawful non-citizens – telephone calls and video conferences with practitioners in China – documentation and supporting statements – activity not for purpose of strengthening claim – country information – prohibited but not on list of active cults – moderate risk of official discrimination and low risk of societal discrimination – official monitoring of communications – modification of behaviour not required – members of family unit – wife included in application and first son added before delegate’s decision – wife may also satisfy criterion but assessed as member of family unit – second son born after decision not included in review – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5J, 36(2)(a), (b), 65
Migration Regulations 1994 (Cth), r 1.12
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 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 14 November 2016.
The Department delegate’s decision was lodged with the Tribunal.
The applicant husband and applicant wife appeared before the Tribunal on 26 September 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicants were represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Membership of the same family group:
[The applicant husband], [the applicant wife], and (subsequently) [the applicant son] ([DOB]) lodged a Protection visa application on 14 November 2016. With the Department, the applicant husband lodged copies of his marriage certificate[1] and the birth certificate[2] of the applicant son.
[1] PDF – p.160 (‘PDF’ refers to the merged Department file on the Tribunal CASEMATE database).
[2] PDF – p.68.
Based on this evidence, the Tribunal accepts the applicant wife and applicant son are members of the same family unit of the applicant husband, pursuant to r.1.12 of the Regulations, and s.5(1) of the Act.
By email of 12 September 2023, the applicants’ agent advised that the applicants’ second son ([Child 2]) was born in Australia on [Date]. Also, that he had been initiated in the temple of Yiguan Dao. However, as the second son was born after the Department decision was made (on 12 October 2017), the second son is not included in the present merits review.
The applicants’ receiving country:
With the Department, the applicant husband provided a photocopy of the bio-data page of his Chinese passport (expiry date: [2017][3]); and the applicant wife provided a photocopy of the bio-data page of her Chinese passport (expiry date: [2011][4]). Based on this evidence, the Tribunal accepts the applicant husband and applicant wife are citizens of China and that China is their receiving country.
[3] PDF – p.163.
[4] PDF – p.143.
Next, the evidence before the Tribunal included that Chinese passports may be renewed/granted in Australia.[5] When discussed at hearing the applicant husband said he had attempted to renew his Chinese passport in Australia, but he was not able. Be that as it may, and after having discussed same, the Tribunal finds the applicants could renew/obtain Chinese passports (including for their children) in Australia.
[5] Chinese Consulate General of China in Sydney, Australia - Embassy WorldWide (embassy-worldwide.com), accessed 24 August 2023.
Regarding the applicant son, on 24 January 2017 (prior to the Department PV decision of 12 October 2017), the applicant husband advised the Department of the birth of his son in Australia on [Date] (the applicant son) – and the applicant son was included as a dependent in the applicants’ PV application. The country information stated:
Article 5
Any person born abroad whose parents are both Chinese nationals and one of whose parents is a Chinese national shall have Chinese nationality. But a person whose parents are both Chinese nationals and have both settled abroad, or one of whose parents is a Chinese national and has settled abroad, and who has acquired foreign nationality at birth shall not have Chinese nationality.[6]
[6] Nationality Law of the People's Republic of China, loi_nationalite_chine.pdf (ambafrance.org) , accessed 24 August 2023.
The Tribunal understands that ‘settled abroad’ may include inter alia permanent or long-term residency.[7] The Tribunal also acknowledges the applicants now have two biological children – both born in Australia.
[7] INTERPRETING “SETTLED ABROAD” IN CHINA’S NATIONALITY LAW: THEORY, PRACTICE, AND PROBLEMS, COLUMBIA JOURNAL OF ASIAN LAW, JISEN ZHANG, 17 AUGUST 2022, INTERPRETING “SETTLED ABROAD” IN CHINA’S NATIONALITY LAW: THEORY, PRACTICE, AND PROBLEMS | COLUMBIA JOURNAL OF ASIAN LAW , ACCESSED 25 SEPTEMBER 2023.
However, neither the applicant husband nor the applicant wife have acquired a foreign nationality, and the Tribunal does not accept the length of their stay in Australia (having arrived in late 2007), coupled with their lengthy period of unlawful residence and the otherwise precarious nature of their lawful residence in Australia (including as long-term Bridging visa holders), which means there was real uncertainty as to whether they may eventually be removed from Australia, would necessarily constitute ‘long term residence’ for the purpose of determining whether they had ‘settled abroad’, nor that it would impede the applicant son/s acquiring Chinese nationality.
When discussed at hearing, the applicant/s did not materially comment. The Tribunal now finds the applicant son/s may obtain Chinese nationality in Australia. Further, that China is the receiving country for the applicant son.
The applicants’ migration history:
As noted in the delegate’s decision and the PV form, regarding the applicant husband:
·     He lawfully departed China[8]
·     Arrived in Australia [in] November 2007, holding a subclass TU571 (Student (Schools Sector)) visa. This has been granted 26 October 2007 and was valid until 15 March 2010
·     after this Student visa ceased on 15 March 2010, he remained unlawfully in Australia for the following 6 ½ years without attempting to regularise his migration status
·     on 14 November 2016, the applicant husband lodged a Protection visa (PV). This PV included the applicant wife (and subsequently the applicant son)
[8] PDF – p.85.
Regarding the applicant wife:
· She lawfully departed China
· Arrived in Australia [in] October 2007 on a Student visa. She also remained unlawfully in Australia for 6 ½ years after her Student visa ceased and prior to lodging the PV
The applicants’ evidence/submissions:
The applicant husband has contact with his father in China by telephone[9] and on occasion he speaks with Yiquan Dao practitioners in China by video conference (discussed below).
[9] PDF – p.84.
The applicant husband ([DOB] - hereafter the ‘applicant’) and the applicant wife ([DOB]) attended a Department PV interview on 4 August 2017. In support of the Protection visa (PV) application, the applicant had claimed:[10]
[10] For instance, see PDF – from p.71 & 72.
·     in 2006 (at which time he was around [Age] years old), he commenced working at a [shop] run by a named man ([Mr A]). This man (hereafter the family friend) was a friend of his father and his father’s family
·     the family friend, the applicant’s father and the applicant’s grandfather were devout believers of Yiquan Dao and were persecuted by the Chinese authorities for years. The applicant’s father and the family friend ‘dared not openly practice as it was banned’. The practise of Yiquan Dao was regarded in China as ‘reactionary huidaomen’ – ‘illegal society’
·     the family friend had a secret Yiquan Dao temple above his shop, where amongst others, he and the applicant’s father would practice
·     when the applicant commenced to work at the aforementioned [shop] of the family friend, his father asked the applicant to learn the teachings of Yiquan Dao
·     in November 2007, the applicant then travelled to Australia in order to study, but prior to coming his father told him (‘repeatedly’) to look for a Yiquan Dao temple in Australia.
·     however, the (then [Age] year old) applicant claimed to have been ‘subject to huge pressure’ in Australia as it was hard for him to study in Australia due to his poor English. It was also claimed study costs and his living costs were expensive and he could not concentrate on looking for a Yiquan Dao temple for a long time (at hearing he confirmed he was not ‘initiated’ as a practitioner in China)
·     in March 2008, the family friend in China was arrested and the applicant’s father was investigated after the secret temple was discovered by the Chinese authorities. This occurred due to the shop/s being forcibly demolished by the Fuqing government - the land was confiscated to ‘build up modern commercial/residential centre’
·     the family friend did not implicate the applicant’s father, but the family friend was sentenced to one year of re-education through labour. This resulted in the family friend being made to do ‘hard jobs’ and also he was kept in poor conditions with insufficient food. Not long after the release of the family friend in March 2009, he died of an illness
·     around May 2008, the applicant terminated his studies in Australia as his father could not continue to support him financially – due to the father’s [shop] being also demolished and due to the father being investigated
·     however, the father had again told the applicant to look for a Yiquan Dao temple in Australia, and in August 2008 the applicant located a Yiquan Dao temple in Sydney
·     finally, on 9 August 2008 the applicant underwent a ‘rite of initiation’ and he had since become a genuine believer in Yiquan Dao
·     the applicants’ agent lodged documents in support, including initiation cards and translations for each applicant[11]; and photo/s[12] of the applicant purportedly at a Yiquan Dao temple in Australia
[11] PDF – from p.31.
[12] PDF – p.38.
·     the applicant then said the family friend’s daughter ([Ms B]) began to learn how to [do a job task] from the applicant’s father in China
·     later she had also studied Yiquan Dao teachings with the applicant’s father. The family friend’s daughter and her own husband ([Mr C]) then opened a [shop] and commenced secretly teaching Yiquan Dao to their customers (the [business] required them to move from village to village)
·     as the applicant was in contact with the family friend’s daughter, she had asked him to send her Yiquan Dao books from Australia
·     the daughter also ‘invited’ the applicant to introduce his Yiquan Dao activities to practitioners in China, through telephone and other means on ‘several occasions’
·     in September 2016, the daughter of the family friend, who had come to the adverse attention of the Chinese authorities, was arrested. Her [business] had then been closed
·     on 30 September 2016, the applicant’s own father was also arrested as he was suspected of supporting the activities of the family friend’s daughter. The applicant said both the family friend’s daughter and his own father remain in custody in China
·the applicants had applied for the PV in Australia, on 14 November 2016
·     now, the applicant believes he has been blacklisted by the Chinese authorities (PSB) due to his own belief in Yiquan Dao, and he would therefore be persecuted if he returned to China
The agent submission/s to the Tribunal:
Attached to emailed agent submissions of 12 & 13 September 2023:
·     Multiple reference letters (translated) from Yiquan Dao/Buddhist practitioners in Australia, seeking to corroborate that the applicant/s were genuine practitioners of Yiquan Dao
·     Photographs of the applicants’ practise of Yiquan Dao in temples in Australia
·     The following documents were said to corroborate the applicant and the applicant wife’s commitments to the temple of Yiguan Dao in Australia:
·     Certificate of Appreciation for [the first applicant]
·     Certificate of Appreciation for [the second applicant]
Regarding the applicant son/s, the agent email of 12 September 2023 included:
·     Certificate of Commendation for [the third applicant] ([DOB]) - Translation of Certificate of Commendation for [the third applicant] (the first son)
·     Certificate of Course Completion for [the third applicant] - Translation of Certificate of Course Completion for [the third applicant];
·     Certificate of Graduation of [Camp 1] for [the third applicant] - Translation of Certificate of Graduation of [Camp 1] for [the third applicant]
·     Certificate of Graduation of Year 2019 [Camp 2] for [the third applicant] - Translation of Certificate of Graduation of Year 2019 [Camp 2] for [the third applicant]
·     Certificate of Graduation of Year 2021 [Camp 3] for [the third applicant] - Translation of Certificate of Graduation of Year 2021 [Camp 3] for [the third applicant]
·     Certificate of Honor of Year 2021 [Camp 3] for [the third applicant] - Translation of Certificate of Honor of Year 2021 [Camp 3] for [the third applicant]
·     Certificate of Honor of year 2023 [Camp 4] for [the third applicant] - Translation of Certificate of Honor of year 2023 [Camp 4] for [the third applicant]
·     Birth Certificate for [Child 2] (the second son) - ([DOB])
·     Initiation card for [Child 2] - Translation of Initiation card for [Child 2]
Regarding Yiquan Dao (different English language spellings appear common):
Regarding Yiquan Dao, the country information stated:
3.75 Yi Guan Dao (YGD, also: Tian Dao or I-Kuan Tao) is a syncretic Chinese religion combining elements of Buddhism, Confucianism and folklore. In December 1950, YGD was the target of a nationwide crackdown, after which the group was driven underground. It sought to re-establish itself following China's cultural revolution, but quickly became the target of campaigns of arrests in 1983.
3.76 YGD beliefs may take different forms in different communities and might be influenced by different religions when established in different places around the world. Most practitioners are vegetarian. As with other xie jiao [illegal cults], the range of communities and propensity to split means that different adherents might have different beliefs.
3.77 While YGD continues to be prohibited in China, it is not included on the list of active cults released in 2017 … The Dui Hua Foundation reports YGD followers in mainland China are likely to be concentrated in Guangdong and Fujian. The current status of the group is not clear, but data on court cases collected by Dui Hua found that arrests and imprisonment of members does occur, for example for proselytisation activities.
3.78 YGD is not as large as it used to be but reports of some attention by authorities continue. Members are not allowed to practise their religion freely. DFAT assesses that members of YGD face a moderate risk of official discrimination and a low risk of societal discrimination.[13]
The Tribunal’s assessment of material claims:
[13] DFAT COUNTRY INFORMATION REPORT PEOPLE’S REPUBLIC OF CHINA 22 December 2021.
The Tribunal notes the applicant previously resided in Fujian province. That said, there were a number of preliminary issues about which the Tribunal had concerns. For instance:
·     the Department delegate noted that country information indicated Yiquan Dao ceremonies are open only to initiated members and the ‘three treasures’ (which the applicant said he had learnt/observed in China) is a secret and reserved for persons who had been initiated.[14] The applicant had not claimed to have underwent any initiation ceremony in China
[14] 'Yiguan Dao: "Heterdoxy" and popular religion in Taiwan', East Gate, Joseph Bosco, 01 January 1994, CIS21618.
·     however, the Tribunal notes the country information included that Yiquan Dao may take different forms in different communities and might be influenced by different religions when established in different places around the world, and that as with other xie jiao, the range of communities and propensity to split means that different adherents might have different beliefs. Therefore, the Tribunal did not draw any adverse inference from this
·     next, if the applicant attended many Yiquan Dao sessions in China even though he was not at that time a practitioner (as he clarified at hearing), and if he was repeatedly implored by his father to practise Yiquan Dao in Australia, why did he delay his practise for almost eight months on first arriving. The delegate noted the applicant referred to his then limited English language capacity, and his limited financial circumstances. To the Tribunal, the applicant also referred to being fearful he may make enquiries about Yiquan Dao in Australia, with Chinese people who might then report him to the Chinese authorities
·     the delegate, as does the Tribunal, believed the applicant could have made discreet enquiries about Yiquan Dao through the substantial Chinese language media that exists in Australia. Also he confirmed at hearing he commenced working in Australia in early to mid-2006
·     the applicant did tell the Tribunal that he was young at the time ([Age] years) and he did not therefore always make reasoned/reasonable decisions – and he was only initiated into the Yiquan Dao belief in Australia in August 2008. After discussing same at hearing, the Tribunal accepts this is plausible
·     next, the applicant and applicant wife married in October 2013 (having met at a party held by a mutual friend). Sometime later, the applicant wife also converted to Yiquan Dao.
·     when asked why they both then remained in Australia unlawfully for around 61/2 years, the applicant was recorded as claiming he did not immediately fear persecution, because he did not have a direct threat from the Chinese government, and he still hoped to be able to return, and he thought one day the policy against Yiquan Dao in China would change
·     however, the delegate recorded the applicant said he had travelled to Australia as he was concerned about his safety in China. He was also recorded as claiming he was worried about his participation in Yiquan Dao in China/Australia and that he might be arrested and put in a labour camp in China (something he confirmed at hearing)
·     the delegate also noted the family friend was arrested in March 2008, the applicant’s father was investigated at that time, the applicant’s father’s shop was also closed and financial support for the applicant had ceased in 2008
·     at hearing, the Tribunal understood the delay in lodging the PV, was also related to his fear of being made to return to China – and which the Tribunal now accepts is plausible

Regarding the applicant’s evidence of his practice of Yiquan Dao in Australia, the applicant told the Tribunal he had been introduced to the Temple in Australia in mid-2008 by a colleague who invited the (then fairly impoverished) applicant for a vegetarian meal (something that is common in Yiquan Dao practise). He had then attended the Temple on a number of occasions for food and he eventually engaged in the study leading to his ‘initiation rite’. The applicant was then initiated into Yiquan Dao in Australia in August 2008. After having discussed this at hearing, the Tribunal accepts this is plausible.
Next, and regarding the daughter of the family friend (also a Yiquan Dao practitioner who had been taught by inter alia the applicant’s father) – it was claimed she had asked the applicant to send her Yiquan Dao books from Australia, and which he did by mixing the literature in amongst a lot of other material sent from Australia by a Chinese gift shop. It was claimed the daughter also asked the applicant to ‘introduce his Yiquan Dao activities in Australia to persons in China, through telephone conference on several occasions.’ This daughter had subsequently been arrested in September 2016 and the applicant’s father was also arrested (and the father was sentenced to six months re-education through labour).
Amongst other things, the country information stated:
3.95 ‘…DFAT assesses that people who use an internet platform to mobilise others in relation to politically sensitive issues face a high risk of official discrimination, but small-scale discussion of political issues and even criticism is generally tolerated and the majority of social media users are able to use their platforms without incident.
…..
5.5 Police have access to enormous amounts of data and other evidence … [15]
[15] DFAT COUNTRY INFORMATION REPORT PEOPLE’S REPUBLIC OF CHINA 22 December 2021.
And:
Authorities routinely monitored telephone calls, text messages, faxes, email, instant messaging, social media apps, and other digital communications intended to remain private, particularly of political activists. Authorities also opened and censored domestic and international mail. Security services routinely monitored and entered residences and offices to gain access to computers, telephones, and fax machines.
…..
During the year the government extensively used mobile phone apps, cameras, and other electronics to monitor all speech and movement. …
…..
The government employed tens of thousands of individuals at the national, provincial, and local levels to monitor electronic communications and online content …[16]
And:
6.1.4 The USCIRF report covering 2019, stated: ‘In 2019, religious freedom conditions in China continued to deteriorate. The Chinese government has created a high-tech surveillance state, utilizing facial recognition and artificial intelligence to monitor religious minorities …
…..
6.3.5 … ‘If a member of a group that has been designated as Xie Jiao moves to another province and does not publicly disseminate his or her faith there, a confidential source reports that this person may be able to avoid criminal prosecution. However …[the] source goes on to say it depends on the distance from the original province of residence and whether the person is considered by the authorities to be a high-profile figure. The same source adds that it is difficult to go unnoticed due to the omnipresent surveillance equipment, even though China is a vast country.[17]
[16] US DEPARTMENT OF STATE, 2022 COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES: CHINA (INCLUDES HONG KONG, MACAU, AND TIBET).
[17] UK Home Office, Country Policy and Information Note China: Non-Christian religious groups Version 2.0 July 2021.
After putting the gist of the country information to the applicant at hearing, he consistently claimed to have spoken to his father (in China) every two months, by way of a ‘safe phone’. With his father, he also discussed (though obliquely) the practise of Yiquan Dao. Given the country information relating to small-scale discussion and the fact that though prohibited in China, Yiquan Dao is not included on the list of active cults released in 2017, the Tribunal will accept the applicant’s evidence of the nature of his conversations with his father and the means of communication, would be possible to engage with temporarily without coming to the adverse attention of the authorities (though the father was eventually detained).
The Tribunal also notes that threats and intimidation can be brought to bear on family members of persons of adverse interest to the Chinese authorities.[18] However, it remains possible, and the Tribunal accepts, that family members in China may not always be harmed for reason of the small-scale activities of family members outside China.
[18] See DFAT COUNTRY INFORMATION REPORT PEOPLE’S REPUBLIC OF CHINA 22 December 2021, [5.11], [5.32-5.33].
Next, the applicant also referred to speaking in Yiquan Dao ceremonies in Australia (approx. once every six months). These six-monthly ceremonies were conducted by inter alia video conference with amongst others, the aforementioned daughter (of the family friend) who was then in China (and prior to her being arrested).
Respectfully, the applicant was not always able to effectively prosecute his case (particularly in the latter part of the hearing), though after having listened to him, I would accept he was attempting to be candid. So at the commencement of the hearing, he did not suggest to the Tribunal that his father was harmed, harassed or even questioned in China, after being arrested for practising Yiquan Dao in 2016 (he was released after six months). That being said, and for the reasons set out above, the Tribunal accepts it is possible the video conferences may have taken place and their ‘small scale’ nature would not have, at least initially, caused much if any adverse attention to be directed at the persons receiving this communication in China.
At hearing, when it was then put to the applicants that it did not appear plausible they would have been able to speak on the telephone/video conference calls with persons in China, without those persons being subject to serious and more immediate harm, the applicant initially seemed confused. The applicant wife appeared better able to provide evidence in response. Though her evidence and submissions are not set out herein, the applicant wife, who witnessed these video conferences, was far more detailed and spontaneous about when these calls occurred, what was discussed in these calls, the applicant’s involvement in these calls, and who was present during these calls. As stated at hearing, the Tribunal was not then satisfied it had reasonable grounds to reject this evidence. Therefore, the Tribunal has accepted the evidence of the applicant wife about the applicant’s involvement in both the telephone calls and the video conferences.
Along with the evidence that Yiquan Dao has been banned in China and that adherents are still subject to prosecution, the country information stated:
5.28 …Chinese authorities are likely … to be aware of the behaviour of Chinese asylum seekers while they are outside of China and may know that applicants have applied for asylum. The consequences for those applicants are not clear ….
The Tribunal accepts the Chinese security apparatus is extensive and it is likely the applicant’s comparatively small scale activities in Australia, including that he has spoken about his Yiquan Dao activities in Australia in video conference calls, has come to the adverse attention of the Chinese authorities – and that same could have contributed to the arrest of his father and the daughter of the family friend in 2016 and for the reasons claimed (and which the Tribunal now proposes to accept). Given the accepted evidence and country information considered, the Tribunal now finds there is a real substantial basis that the applicant would be harmed by the Chinese authorities for reason of his religious practise, on return to China. Based on the evidence herein, the Tribunal also accepts the harm to which the applicant may be subject, includes detention at a labour camp, and is therefore serious harm for the purposes of the Act.
Next, the Tribunal notes that s.5J(6) of the Migration Act states:
(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.
As stated herein, the applicant provided numerous reference letters from claimed Yiquan Dao practitioners in Australia, seeking to corroborate that the applicant/s were genuine practitioners of Yiquan Dao. As noted at hearing, those letters did not appear to identify too many of the specific activities undertaken by the applicant in Australia, in support of Yiquan Dao. However, the multiple reference letters did indicate the applicant since August 2008, and the applicant wife since around 2013, were apparently well regarded members of the community within their Yiquan Dao temple in Sydney. Therefore, and given the Tribunal accepts the (then impoverished) applicant commenced to attend the Yiquan Dao temple in Sydney in 2008 as, amongst other reasons, he was offered food and community, the Tribunal is satisfied he engaged in the religious practise otherwise than for the purpose of strengthening the claim to be a refugee.
After having then discussed his evidence at hearing, including the manner of his practise, and given all the accepted evidence herein, the Tribunal accepts the applicant’s now 15 years of practising Yiquan Dao in Australia is further reason to find he is a genuine practitioner. The Tribunal now finds the applicant fears persecution in China, for reason of his religion.
Therefore, the Tribunal finds:
·     The applicant fears being persecuted for reason of his religion in China (Yiquan Dao)
·     There is a real chance the applicant will suffer persecution for reason of his religion in China
·     The real chance of persecution relates to all areas of China
·     Based on the available evidence, the applicant would not have effective protection in China or in a third country
·     In this case, the applicant is not required to take steps to modify his behaviour in order to avoid a real chance of persecution in China
·     The applicant’s religion is the essential and significant reason for the persecution and the persecution would involve serious harm to the applicant; and
·     The persecution involves systematic and discriminatory conduct
For the reasons given above the Tribunal is satisfied the first named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s.36(2)(a) of the Act.
The Tribunal notes the applicant wife might also satisfy the criterion set out in s.36(2)(a) of the Act, however in this review, I have included her as a member of the same family unit.
Again, for the reasons given above, the Tribunal is satisfied the other applicants are members of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i) of the Act. As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i)that [the first named applicant] satisfies s 36(2)(a) of the Migration Act; and
(ii)that [the other applicants] satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Mr S Norman
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 4134

28 September 2023

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