1727752 (Refugee)

1727752 (Refugee) [2023] AATA 4550 (10 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Harry Huang (MARN: 9579277)
CASE NUMBER:  1727752
COUNTRY OF REFERENCE:                   China
MEMBER:Rodger Shanahan
DATE:10 November 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 November 2023 at 8:04am
CATCHWORDS
REFUGEE – protection visa – China – religion – Local Church (aka. Shouters) – credibility concerns – number of coincidences – delay in seeking protection – departed country legally with no problems – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
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 25 October 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of China, applied for the visa on 5 April 2017.
The applicant appeared before the Tribunal on 11 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 applicant was represented in relation to the review. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
Protection Visa Application
On [date], I was born in Zibo City, Shandong Province, China (PRC). I was the only child of my parents. When I was around two years, my parents divorced. I then followed my mother. We had a really difficult life, but my mother was a capable person. She endured a lot of hardship bringing me up. Thus, I always have a deep affection for my mother.
In September 2014, I was successfully enrolled in [University 1], studying [Discipline 1]. The university is located in [City 1], Shandong Province. I normally lived in the university, and only returned my home in Zibo during winter or summer school holiday.
Not long after I began to study at the university, I got to know [Mr A], who was one year ahead me. He was tall and handsome, and particularly spoke good English. He had an English study group, organising students to study and practise English together in their spare time. As I like English very much, I quickly joined his study group and gradually developed close relationship with [Mr A].
Also in 2014, my mother got married again. She lived together with my step-father and organised a new family. It was really hard for me to accept it, because I had fully depended upon my mother since my childhood and I was always the apple of my mother's eyes. I felt myself that I had suddenly been abandoned by my mother and that I would be alone in the world from then on. Thus, I was very depressed for quite a long time. Fortunately, after I met [Mr A], he gave me a lot of support, mentally and psychologically. I gradually relied on him and deeply fell in love with him in the end.
I later on learned that [Mr A] was a devout Christian and a secret member of the Local Church (a.k.a “Shouters”). I could not help being strongly influenced by his Christian belief, and started attending secret meetings organised by [Mr A] from December 2014. In March 2015,1 was baptised and have become a genuine Christian of the Local Church since then.
In China, apart from foreign teachers or foreign students, religious beliefs, religious groups or religious activities are strictly restricted by the authorities among Chinese students. The government normally does not allow the students to have any church activities unless these churches have not only been registered with relevant government agencies but also supervised and controlled by the authorities. As the Local Church (a.k.a. "Shouters) is regarded as "Evil Cult" in China, it is very much dangers for [Mr A] to organise meetings of the Local Church among students. The English study group was actually a cover for his secret activities with the Local Church.
As [Mr A]'s girl-friend, I naturally became his most important assistant. There were three secret meeting groups of the Local Church in my university. Each group had around 20 students. In order to avoid attention of the PRC authorities, these meeting groups organised their meetings respectively on Wednesday, Friday, and Saturday. [Mr A] conducted all of these meetings. I acted as liaison with these meeting groups, not only transmitting messages but also delivering materials of the Local Church. Meanwhile, I assisted [Mr A] to type up and print the materials of the Local Church with the computer and printer.
My mother did not know my involvement in the Local Church until I returned to my hometown in Zibo during the winter school holiday in February 2016. She was really worried about my safety, because she was implicated by my uncle, [Mr B], who had actively been involved in the Local Church in China. When she realized that it was impossible for me to give up my Christian belief with the Local Church, she had to make her mind to send me to the overseas. Her husband [Mr C], my step father, had a close friend [Mr D] who specialized in organising Chinese people to go abroad. So, my mother started organizing my trip to leave China through [Mr D] from then on.
I, however, did not like to leave China. Both [Mr A] and I loved each other very much, and we really expected to stay together permanently in our life. And, I was a student at the university, and I certainly wanted to complete my study successfully. Particularly, as a devout Christian of the Local Church, I was playing an important role in our meeting groups on campus. It was for these reasons that I returned to China although I travelled to [Country 1] in June 2016 and to [Region 1] in August 2016.
From September 2016, [Mr A] began to set up a new meeting group of the Local Church outside our university. The meeting group was located in a book shop in [location], where was not quite far away from our university. The shop's owner was [Ms E]. She was also a secret member of the Local Church. Both of them jointly organised secret meetings on every Sunday evening.
Both [Mr A] and I originally planned to have a dinner together on [date] December 2016, because it was his birthday. Unexpectedly, when [Mr A] and [Ms E] organized secret meetings at the book shop on the evening of [date] December 2016, they were raided by the police from [City 1] Municipal Public Security Bureau (PSB). All of participants, including [Mr A] and [Ms E], were arrested by the police. As a result, I was taken to the PSB by the police on the afternoon of [date] December 2016. During the interrogation, I realized that the police was not aware of my involvement in the Local Church but just regarded me as [Mr A]'s girl-friend. I was threatened, and even inhumanly treated by the police, but I insisted that I knew nothing about [Mr A]'s activities with the Local Church. Eventually, I was released on the following morning.
Following that, I was interrogated by the police on another two occasions. Each time when I was interrogated, I was always treated inhumanly by the police. I was really scared. Fortunately, my step-father's friend [Mr D] assisted me to leave China from Pudong airport in Shanghai [in] January 2017. I arrived in Australia on [date] January 2017.
Shortly before I left China, I learned that [Mr F], who was in charge of our three meeting groups of the Local Church after my boy-friend [Mr A]·had been in arrested by the PSB, was discovered by the PRC authorities. He was arrested by PSB immediately. After my arrival in Australia, I was informed that [Mr F]'s arrest led to all of our three meeting groups having been destroyed completely by the authorities. Many students have been investigated by the PSB. Consequently, I have been found to be a liaison with these meeting groups and play an important role in the "illegal" activities of the "Evil Cult".
My mother has inevitably been implicated by my case. She has once again been investigated by the PSB. If I go back to China, I must be arrested by the police and imprisoned by the PRC authorities just like my boy-friend [Mr A] as well as other Christians of the Local Church. Therefore, I have to apply for a Protection visa in Australia. In Australia, I continually attended the Local Church.
AAT Hearing
The applicant was asked the relevance of a series of undated photos provided prior to the hearing that had no explanation as to their relevance. She was told to provide an explanation of the photos after the hearing but she said they were evidence that she attended group meetings, lord’s prayer meetings and a national blending meeting. The most recent one was [in] June 2023 in Brisbane. The other one was held before COVID near Sydney.
Asked about support letters that she had also provided, she said that she asked fellow practitioners to write these letters after her agent told her about the hearing. It was put to her that many of them seemed to have nearly identical wording and didn’t seem to be written individually. Some paragraphs were nearly the exact same. She claimed that she understood but one of her beliefs of the religion is that they must maintain unity and this may explain the common features of the letters. It was put to her that this appeared quite odd. She was asked why nobody turned up in person given she told the Tribunal about the unity of the community and she said that she could arrange them if required. She said she didn’t know people could come as witnesses.
She was interrogated by the police for being a member of the local church and they had used harmful methods against her. If she returned to China her life would be at risk. She first had this fear in December 2016. Her boyfriend had been the campus leader for the local church and they assumed she was also a member. Her boyfriend had also confirmed that she had been a member and she would be harmed because of this.
She claimed that because she had kept contact with her mother she had learnt that her boyfriend was in jail along with many other of her classmates who had been in the local church and were now persecuted. Her boyfriend had been arrested on evening of [date] December 2016 (his birthday was [date] December so she remembered it well). She was interrogated on [date] December. Asked when he was convicted she didn’t know but thought it was done in secret. He should have been released but was still in prison.
Asked what she meant by her classmates being persecuted, she claimed that one classmate also held campus meeting and he went to jail and died from COVID because treatment was denied. Another friend had also been convicted, released and now couldn’t find a job. Asked if she had publicised their plight on her own social media or tried to enlist the interest of local or other media or NGO to highlight their plight, she said that she thought about it but she thought the classmates still had families so she didn’t want them to be affected. Instead she prayed and hoped for the intercession of God. She did whatever God wanted her to do.
She was asked if some of the people who wrote the letters and were in the photos were Australian citizens, she said they were. She was asked if any of these people had written to their local members in Australia to highlight the plight of other local church members in China who had been arrested. She could still pray to God as well as advocate on her friends’ behalf either directly or indirectly. She said the local church was about unity so their lack of practical advocacy raised questions in the Tribunal’s mind as to whether she was telling the truth about the people she knew in China.
She said she understood but she came to Australia for protection and she followed what God wanted her to do. She didn’t think if she took any of the steps the Tribunal asked about that this would hasten the return of God. She was interrogated twice; on the [date] and [date] December – seven days apart. She left China [in] January 2017. She was granted a visa to come to Australia a month before she left China but it was obtained by someone her family arranged. Asked if she applied before or after she was interrogated she said it was before but it was her mother and stepfather who applied for her as she didn’t wish to leave.
The night before she left China she found that the police had substantial evidence about her participation in the local church and she believed this was all God’s plan. Asked how she knew the police had evidence against her, she said a fellow practitioner told her mother that one of her classmates had been arrested and told the police her name. Before she came to Australia her mother had already found out about her participation in the local church and so wanted her to go overseas. She went to [Country 1] and [Region 1] in 2016. Asked why she went there, she claimed that her mother wanted her to go overseas and stay there.
Asked what visa she went to [Region 1] on, she said that she went on a visitor visa and was told to think of a way to stay there but she didn’t. This seemed to be very vague guidance to give her. When she came to Australia her mother and stepfather allegedly organised all this for her, but yet the trip to [Region 1] seemed not organised. Her mother made no suggestion to her about applying for protection in [Region 1] where she could do so on the basis of her interest from the police over the local church participation.
She said her relationship with her stepfather wasn’t good and she thought her mother didn’t like her. Her boyfriend introduced her to the local church and believed he was the only one who loved her. She was asked why she didn’t highlight his plight in jail given the closeness she claimed to have to him. She said that in China social media comments were under strict control and a friend had protested the China-Japan relationship and he was warned by the police. She was told that the Tribunal was concerned about her lack of activity in Australia given she arrived here a month after her boyfriend was allegedly arrested. She didn’t appear to have done anything for him amongst foreign-based media/NGO.
She claimed that she said that she lived for God and not herself and it was her role to spread the word of God in Australia and helping her boyfriend would not hasten God’s return. She came to Australia to seek protection based on God’s will. She couldn’t love anything more than God and her boyfriend wouldn’t want her to do this. It was put to her that God also wanted us to save her fellow man, so it was possible to spread the word of God and to help her fellow man. Jesus looked out for other people even on the cross, and the parable of the Good Samaritan was about helping others.
What she was claiming didn’t make sense in that it was possible to worship God and spread his word and help others. The concepts weren’t mutually exclusive as she was claiming. She disagreed and said she had no ability to do both and God had asked her to spread the word of God. She said God told her not to be selfish and helping her boyfriend was only achieving a personal goal and she needed to spread God’s word. Her actions were guided by God. God was coming to us soon and we should all join the local church.
Asked why she chose Australia to come to, she said that she didn’t know she was coming here and her family arranged it. Asked why her mother would have chosen Australia, she said her mother just wanted her to try. Her uncle also had experience of being persecuted for being with the local church. He came here around 2014 and she didn’t know what visa he was on. Her adviser gave the Tribunal a copy of the Tribunal’s decision in this case. Asked if she had mentioned the presence of her uncle in her application she said that she didn’t think so.
It was put to her that her cousin had also made a claim for protection and she said he had. It was put to her that he hadn’t been mentioned on her protection visa application and she said she asked her representative to prepare her protection visa application. The adviser said that her cousin was on a separate claim and it was still being processed. Her uncle was a member of the local church in China. Asked if she knew about the church before she met her boyfriend, she said that she knew of its existence but didn’t believe in it. She loved her boyfriend and his religion.

It was put to her that it was a strange coincidence that her uncle was in the local church and then she met a boyfriend at college who also happened to be in the local church. She said she understood this may be seen as a coincidence but this was also due to God’s will. She was working at the moment at [a workplace].
Her uncle picked her up at the airport when she arrived. She believed that he had already applied for protection at this stage. Asked when she applied for protection, she said her uncle introduced her to her representative who then helped her. It was put to her that she arrived [in] January but didn’t apply [until] April. This delay, given what she said had occurred to her, as well as the fact that her uncle had already applied, was of concern.
She said that she was introduced to her representative soon after arriving and from then it was up to her representative. Asked why she was able to leave China so easily if she was of interest to the Chinese authorities given country information indicated it was difficult for people of interest to authorities to leave. She claimed that her stepfather asked his friend who was a trainer at a police college who had wide connections and helped people get visas. It was put to her that this was again a strange coincidence and was asked if she had mentioned this previously – she said that she mentioned that her stepfather asked a friend and she wasn’t asked about his job so she didn’t mention it. Her stepfather worked in the [specified area] at a police college and knew this friend.
She acknowledged there were coincidences but it was God’s will. It was put to her that she had previously said she had a bad relationship with her stepfather so it was strange that he helped her. She claimed he wanted her to leave the country so he was alone with her mother. She was told that she would be given time post-hearing to provide evidence where she mentioned her stepfather working in the [specified area] previously. She said she hadn’t mentioned this because she wasn’t asked.
It was put to her that country information pointed out how difficult it was to get people through exit procedures in China and it was strange that someone working in the [specified area] would have enough money or access to someone to bribe the necessary officials. She claimed that there were friends of his stepfather’s who was making money illegally and her stepfather may have as well and would have been willing to pay the money to get her to leave the country.
It was put to her that there was a nine-day gap between having her visa approval and leaving China. Given she claimed to have been interrogated twice, it was strange that she delayed her departure for nine days. She had also said that the day before she left she had claimed that she had information that the authorities had found out that she was a member of the local church. This was again a coincidence that she heard second-hand that the police were told she was a member of the local church the day before she left China. She said that she wanted to leave after the first interrogation but it took time for her stepfather to make the arrangements. She also said these events weren’t coincidences, they were God’s will to come to Australia. People couldn’t leave China as easily as they could in Australia for example.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia [in] April 2017 and applied for protection on 5 April 2017. The Tribunal accepts the applicant is a Chinese citizen. The applicant is a [age] year-old woman who claimed that if she returned to China her life would be at risk because she had been identified as a member of a Local Church.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not expected to accept uncritically any and all claims made by an applicant.
Overall I found the applicant’s evidence regarding her claims to lack credibility. For reasons set out below I did not find the applicant to be an entirely credible, reliable or truthful witness, and find that she fabricated her claims in order to be granted a protection visa.
Credibility and Coincidence
There were a number of claims made by the applicant during her hearing that individually appear as too coincidental to be true. The combination of a number of these coincidences stretches credibility past its elastic point and I am satisfied that they reflect the fact that the claim has been fabricated. These coincidences include the following:
a.After having obtained a visa to Australia and been interrogated twice, she allegedly learnt that the day before her pre-planned departure her name had been given to Chinese authorities as being a member of the Local Church, making her departure timely;
b.Her stepfather allegedly worked in the [specified area] of a police college and this allowed him to meet an official who was in turn able to bribe officials to allow the applicant’s departure from China. Her stepfather’s job had not been mentioned by her previously; and
c.She had an uncle who had come to Australia in 2014 and subsequently applied for protection on the basis of being a member of a Local Church in China. When the applicant went to university and allegedly fell in love with her boyfriend it turned out that he was, unbeknownst to her, actually a campus leader for the Local Church.
I do not accept that this series of coincidences were simply the work of God. Rather I think they are fabrications used by the applicant to explain her connection to the Local Church and the ease with which she was able to leave China despite allegedly being wanted by Chinese authorities.
Local Church membership
I do not accept that the applicant was a member of a Local Church in China, that she was detained twice and that Chinese authorities were told she was a member by another Local Church member just prior to the applicant’s departure from China. This relies entirely on her own oral testimony, the credibility of which is doubted by the Tribunal.
Her claim that she was introduced to the faith by her boyfriend seems not only coincidental (see above), but her attitude towards the boyfriend runs counter to the close relationship she claimed to have with him. Despite him helping her to recover from her depression, she falling deeply in love with him and being his most important assistant in spreading the Local Church on campus, she has had no contact with him since leaving China.
Despite claiming that he has been held in prison past his release date, as well as claiming to be an active member of the Local Church, she has made no effort to highlight his plight or those of her friends in China she claims were also detained. There is nothing on any social media in her own or any other name that seeks to publicise the persecution he allegedly faces in China. Nor has she sought any of her Local Church members in Australia who may be Australian citizens to highlight the plight of her boyfriend and university friends whom she claims have been arrested in China.
I do not accept any of her reasons for not doing anything about her boyfriend or other friends’ plight. I do not accept that she was doing God’s will, helping her boyfriend wouldn’t hasten God’s return or that she lived for God herself and seeking her boyfriend’s release was only achieving a selfish, personal goal. The Tribunal is satisfied that she would be able to both advocate for her boyfriend’s release and seek God’s return, in much the same way that she was able to work in Australia without impairing God’s ability to return. The fundamental Christian doctrine of helping one’s fellow man (as mentioned more than once by God’s only son Jesus) also convinces the Tribunal that her claim that seeking her boyfriend’s release would be considered a selfish personal goal to have no foundation in Christian belief.
Claims to have been involved in the Local Church in China rest entirely on her oral testimony, which I have found lacks credibility. I have taken into account the evidence that she has presented in support of her pursuit of Local Church activities in Australia. These include six letters from fellow practitioners. I lend them little weight as to the genuineness of her faith as they are all nearly identically worded despite being handwritten, which would indicate that there has been collusion or that they were actually told exactly to write by someone else.
I have also taken into account some undated photos of the applicant at Local Church gatherings in Australia and copies of some rosters for the Local Church. It is not apparent on the roster that her name has been included and the photos have no dates or context. As a result I am satisfied that she has attended some Local Church events in Australia, but I am not satisfied that this indicates that she is a practising Local Church member.
The Tribunal must be alert to the possibility that such evidence has been provided simply to give the impression the applicant is committed to the faith. I give greater weight to the implausibility of her claims, coincidences in her account that stretch credibility and the failure to apply for protection in [Region 1] and delay in her applying for protection in Australia in determining that she is not a genuine Local Church member and never was in China.
While I accept that she has attended the Local Church on some occasions in Australia, there is no indication that this is known by Chinese authorities. Nor did she provide any evidence that she has been proselytising on its behalf or for the practitioners she claims are detained in China. Given this I am satisfied that she would not be considered by the Chinese authorities to be associated with the church on her return to China.
Failure to Apply and Delay in Application
The applicant claimed to have been sent to [Region 1] in August 2016, ostensibly organised by her mother so the applicant could leave China given the mother was worried about the safety of her daughter given the applicant’s uncle was by this time in Australia and had applied for protection because he too was allegedly at risk of serious harm for being a member of the Local Church. Her failure to apply for protection at this time calls into question her membership in the Local Church, and her account is confusing.
I do not accept that she failed to do so because her mother made no suggestion to her about applying for protection there. She also stated that her mother told her to ‘think of a way to stay there’, which lacks credibility given that she would have been aware that the applicant’s uncle had come to Australia and applied for protection so such a pathway was open to Chinese members of the Local Church.
Her delay in applying for protection in Australia is also concerning to the Tribunal. She was picked up from the airport by her uncle who by this stage had already submitted a claim for protection based on membership of the Local Church in China. Yet she didn’t apply for protection until two and a half months after arriving in Australia. I do not accept that she was introduced to her uncle’s representative soon after arriving and that form this stage it was all up to him. She provided no timeline as to when she first met the representative and neither was any statement made by her or her representative to explain why there was a delay after meeting the representative.
Ease of Departure
I do not accept that the applicant was able to depart China despite having been interrogated twice by the PSB and then learning the night before her departure that the PSB had substantial evidence relating to her participation in the local church. Given the PSB’s interest in her and her boyfriend, the ease with which she was able to leave China seems inconsistent with the authorities’ interest in her.
Country information in place at the time the applicant left the country indicates that the PSB was one of the agencies responsible for monitoring exit and entry procedures at Chinese airports. It also notes that the major airports have a centralised computer system with name-matching capabilities.[1] I do not accept that she was able to leave with the help of her father’s friend he had met at the police college. I have previously noted the concerns the Tribunal has with the truthfulness of this claim.
[1] DFAT Country Information Report – People’s Republic of China, 3 March 2015, p 20.
As the applicant hasn’t raised any other claims to fear persecution, and having regard to all the evidence and his claims both singularly and cumulatively, the Tribunal finds that there is not a real chance the applicant will suffer serious harm for any s 5(J) reason either now or in the reasonably foreseeable future.
Complementary Protection
I do not accept that the applicant ever attended illegal Local Church gatherings in China, was interrogated by the PSB, that the PSB now has evidence of her participation in the Local Church, and that while she has attended Local Church events in Sydney this is not evidence of a real and ongoing commitment to the faith and she would not attend such gatherings on return to China nor would she be considered to be a Local Church practitioner by the Chinese authorities.
As a consequence, I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, that there is a real risk that the applicant will suffer significant harm on the basis of these claims as set out in the complementary protection criterion set out in s. 36(2)(aa).
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rodger Shanahan
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 4550

10 November 2023

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