1731277 (Refugee)

[2021] AATA 4213

1731277 (Refugee) [2021] AATA 4213 (24 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1731277

COUNTRY OF REFERENCE:                   China

MEMBER:David McCulloch

DATE:24 September 2021

PLACE OF DECISION:  Sydney

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

Statement made on 24 September 2021 at 8:45am

CATCHWORDS

REFUGEE – protection visa – China – religion – Christian – Local church – physical assault – fear of arrest – attacks by gang members – children restricted from attending house church – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155 at 169-70
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 4 December 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of China, applied for the visa on 17 November 2016. The delegate refused to grant the visa.

3. The applicant is a minor, having been born in Australia on [date] to parents of Chinese citizenship.

4. The Tribunal held a hearing to discuss the applicant’s claims on 7 September 2021 at 9.30am. Representing the applicant were his parents, [name], the mother, and [name], the father.

5. The Tribunal exercised its discretion to hold the hearing by video using Microsoft Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by this method, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted in this manner. The Tribunal is satisfied that the applicant’s parents were given a fair opportunity to give evidence and present arguments on behalf of the applicant.

6. The Tribunal was assisted through the use of an interpreter in the Mandarin and English languages. The applicant was represented in the review by a registered migration agent who attended the hearing by telephone.

   CRITERIA FOR A PROTECTION VISA

7. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.

8. 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.

9. 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).

10. 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.

11. 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

12. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it the DFAT Country Information Report – People’s Republic of China, 3 October 2019, a copy of which had previously been provided to the applicant’s mother in the hearing relating to her protection visa application (see details below).

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

14. The applicant was born in Australia on [date]. The applicant applied for a protection visa on 17 November 2016. The applicant was refused by the delegate of the Minister on 4 December 2017. The applicant applied for a review of that decision on 11 December 2017.

15. The applicant’s father entered Australia on a visitor visa [in] March 2013. A protection visa was applied for on 24 May 2013, which was refused by the delegate of the Minister on 20 March 2014. A review by the Refugee Review Tribunal affirmed the delegate’s decision on 25 November 2014. The applicant’s father appealed to the Federal Circuit Court of Australia, which dismissed the appeal [in] October 2016.

16. The applicant’s father was making claims of harm in China based on claimed Local Church involvement in China, [Country 1] and Australia, including being an organiser of Local Church gatherings in both [Country 1] and China. The applicant’s father has claimed others involved in organising the Local Church gathering in China have, following the applicant’s father’s travel to Australia, been detained by authorities for their involvement, and that the applicant’s father faces a similar risk on return. The applicant’s father has also claimed that his father had been detained by authorities as a result of his support of an ‘evil cult’. The Refugee Review Tribunal was not satisfied with the truth of the applicant’s father’s claimed Local Church involvement outside of Australia. While the Refugee Review Tribunal accepted that the applicant’s father had had some involvement in the Local Church in Australia, it was not satisfied that the applicant’s father would be involved in the Local Church in China or that his involvement in the Local Church in Australia would lead to a risk of requisite harm in China.

17. The applicant’s mother entered Australia in September 2006 on a student visa and held a number of subsequent student visas. A student visa was refused by the delegate of the Minister on 1 June 2015 and a review to the Tribunal found, on 18 November 2015, that it had no jurisdiction to consider the matter. The applicant’s mother has not since held substantive visas, but bridging visas.

18. The applicant’s mother applied for a protection visa on 11 September 2015, which was refused by a delegate of the Minister on 20 June 2016. A review of that decision by the Tribunal was sought on 28 June 2017. The applicant’s mother’s application has been constituted to the same Tribunal Member who is considering this application and has been considered concurrently, with the final Tribunal decision in both matters being made at the same time.  Evidence given by the applicant in [the applicant’s] hearing was relevant to her own claims and has been considered as part of her application, as further detailed below.

19. Provided on behalf of the applicant was a statutory declaration setting out his claims for protection as follows (not corrected for spelling or grammar):

    Dear visa officer

    My name is [applicant’s name]. I was born in [a named hospital], NSW, AUSTRALIA on [date]. I am holding an Australia birth certificate.

    On 28th October 2016, my [father] received the refusal notification for his protection visa application. And he is not able to appeal, meaning that my father has to go back to CHINA.

    Given the special relation between CHINA government and my father, he would be arrested by the police, and thus he might face the questions from the government and incarceration in China. My future will become dark without any hope. Losing my father is a heavy blow to me. Once the people around me know about my father's affair, I would receive strange gaze and discrimination from them. In such situation, I would encounter a lot of unfair and bullying incidents that limit my rights as a Chinese citizen. Also, I am totally relying on my father financially. If he was arrested, I will definitely lose my financial sources.

    I always believe not only that AUSTRALIA is a kind and friendly country, but also that the AUSTRALIA Government will give me protection and support.

    Thanks you for your consideration.

    Yours faithfully

    [Applicant name].

20. At the interview with the delegate that was held in relation to the application, the applicant was represented by her mother who made additional claims to those indicated above. The applicant’s father was not present at the interview. In the hearing the applicant’s mother indicated that the applicant faces harm as a product of the harm that faces her. This is because she faces revenge from authorities as a result of her involvement in assisting and facilitating the arrest of her former boyfriend for drug dealing. The applicant’s mother also indicates that several drug dealing gang members of the former boyfriend have harassed her parents at their home. The applicant’s mother also refers to police questioning her parents, alleging that the applicant’s mother framed the former boyfriend. The applicant’s mother indicates that she could be arrested on return to China and beaten by gangsters and this could cause the applicant to be harmed. If the applicant loses the support of his parents, he will have no one to support him. The applicant’s mother refers to her own parents and her partner’s parents not being in good health. The applicant’s mother refers to her younger brother and not being in a position either to support the applicant.

21. Provided to the Tribunal on 31 August 2021 was the following additional statement by the applicant’s mother on behalf of the applicant:

    Dear officer, thank you for hearing our help request above. We are not very good at expressing ourselves and please accept our deep apologies. We would like to thank Australia for its medical help and support. My husband and I are facing the risks of religious and political persecution and imprisonment in China; we are facing mental harm, intimidation and torture, and we fear the Chinese government. We have personal safety and freedom of belief in Australia. Western civilisation and the Christian faith have been deeply rooted in our hearts. Our child is born and raised in Australia and studying in a Catholic Church school, and he/she will face the loss of the parents’ company and political brainwashing by the government if he/she returns to China. Chinese policy does not allow children under 18 to enter the church to get baptised and worship God. They are required to learn Xi Jinping’s thoughts. Jesus said children should not be stopped from entering a church. Children are innocent, and the unfairness they experience will hurt them physically and mentally. If we return to China now, we will be required to learn Xi Jinping's thoughts. We are very scared, and we understand that we will be persecuted for our faith. We are very grateful to live in Australia, a beautiful, democratic and inclusive country with freedom of belief, human rights, and laws. We are young people with skills and communicative English; we abide by Australian laws and regulations; we love the Lord and love others in Christ, and we hope to work hand in hand with Australia. Here I would also like to express my deep thanks and gratitude.

22. Also provided to the Tribunal was a copy of an original and a translation of a Rural Land Contractual Management Right Certificate dated [in] November 2018 of, it would appear, the applicant’s mother’s grandfather, [named].  Provided also was a notice issued to someone who would appear to be the applicant’s mother’s father dated [in] May 2020, indicating that land is subject to demolition and appropriation. 

    Independent information

23. The 2019 DFAT report on the People’s Republic of China provides the following information (underlining added):

    Corruption

    [2.40]    China ranked 87 out of 180 countries and territories measured on Transparency International’s 2018 Corruption Perceptions Index. The most prevalent forms of corruption in China are bribery, diversion of public funds, and favouritism by government officials. Bribery, political interference and facilitation payments are common when acquiring public services and dealing with the judicial system.

    [2.41]    Of Chinese companies surveyed in 2015, 35 per cent had paid bribes to government officials, and the 2017 Global Corruption Barometer found 26 percent of respondents in China had paid bribes when accessing public services, including education, health care, and the criminal justice system. The common practice of guanxi, a custom for building connections and relationships based on gifts, banqueting or small favours (see Guanxi), can also be considered bribery by foreign companies and by national and international anti-corruption laws.

    [2.42]    On taking office in 2013, President Xi launched a nation-wide anti-corruption campaign promising to catch officials of both high and low rank. Authorities conducted 172,000 anti-corruption investigations in 2013, 330,000 in 2015, 527,000 in 2017, and 302,000 in the first half of 2018. By mid-2017, the crackdown had caught over 1,800 officials, including 182 officials ranked at or above the deputy provincial or deputy ministerial level. It had led to the arrest, expulsion from the Party or conviction for corruption of 1,130 officials (including 139 senior officials). Ousted senior officials include provincial Party secretaries, former generals, and former Politburo Standing Committee member Zhou Yongkang. Targets include heads of state-owned enterprise and officials who have fled China with large sums of public money.

    [2.43]    The campaign has led to a decline in some corruption-related activities. The 2017 – 2018 Global Competitiveness Index ranked China 49th out of 137 countries for frequency of irregular payments and bribes, and 20th for favouritism by government officials, compared to 67th for irregular payments and bribes and 34th for favouritism by government officials in 2012. Nevertheless, corruption remains widespread in China. The government and Party did not implement the law consistently or transparently and court judgements were not uniformly enforced against Party members, the military, government departments or state-owned enterprises.

    [2.44]    In March 2018, the NPC adopted the Supervision Law (2018) and established a new National Supervision Commission (NSC), with subordinate Supervision Commissions at the province, city and country level. The NSC is the supreme supervisory organ of the state responsible for investigating corruption within the Party; People’s Courts and Procuratorates; the People’s Congress, their standing committees and subordinate organs; China’s eight ‘democratic parties’; managers of state-owned enterprises, public universities, public research institutes, public hospitals and sports units; and anyone performing ‘public duties.’

    [2.45]    Upon its creation, the NSC absorbed the investigative function of the People’s Procuratorate and the entirety of the Ministry of Supervision (which no longer exists), effectively merging with the Central Commission for Discipline and Inspection (CCDI) (the Communist Party’s internal corruption body). The NSC, in conjunction with the CCDI, is thus responsible for conducting graft and ideological investigations against all Party members and public officials. The NSC has the power to detain people under the liuzhi system in residential surveillance at a designated location (RSDL) for up to six months (an initial period of three months, extendable by a further three months), at undisclosed locations without access to a lawyer (see Arbitrary Arrest and Detention and Detention). Conviction rates for corruption cases, as with all criminal cases, are close to 100 per cent (see Judiciary).

    [2.46]    The Party Central Committee’s Propaganda Department maintains tight control over media coverage of the anti-corruption campaign and, consequently, state media rarely play a watchdog role. Authorities have detained members of the public, including journalists, who have sought to publicise official corruption beyond that endorsed by authorities. International observers report the government and Party have not implemented the PRC Supervision Law consistently or transparently; however, DFAT notes the law was only passed in March 2018. Likewise, court judgements have not been uniformly enforced against Party members, the military, government departments or state owned enterprises.

    [2.47]    Prior to the Supervision Law (2018), anti-corruption confessions were obtained under the ‘shuanggui’ system, a detention system outside of the formal legal system. The ‘liuzhi’ system, a system of extra-legal detention not only for Party members but also for public servants investigated for misconduct (see Glossary), replaced the shuanggui system under the PRC Supervision Law (2018) (for comparison and recent cases see Treatment of Party and public officials). [1]

    [1] DFAT, Country Information Report – China, 3 October 2019, para [2.40] – [2.47].

    […]

    RELIGION

    [3.28]    China is a religiously diverse country with a rich and complex society of faiths, belief systems and organised religious groups. Confucianism, Taoism and Buddhism constitute the ‘three teachings’, a philosophical framework which historically has had a significant role in shaping Chinese culture, including traditional folk religions. Christianity has been present in China since the seventh century but increased when Catholics became active in the late thirteenth century and through Protestant Christian missionaries in the nineteenth century. The establishment of the PRC in 1949 under the control of the atheist CCP resulted in the expulsion of Christian missionaries and the establishment of ‘Patriotic Associations’: government-affiliated organisations which seek to regulate and monitor the activities of registered religious organisations on behalf of the CCP.

    [3.29]    In 2018, the Government attempted to regulate religious groups to prevent challenges to CCP and Government control. As religious observance has grown, the CCP has increased oversight and worked to tighten control over state-sanctioned religious organisations. Nevertheless, despite the atheist nature of the ruling CCP, as many as 25 per cent of Party officials in some localities are estimated to engage in some type of religious activity (mostly associated with Buddhism or folk religion).

    [3.30]    It is difficult to provide exact figures on the number of religious believers in China. In 2018, the government released a white paper on China’s Policies and Practices on Protecting Freedom of Religious Belief (CPPPFRB white paper). This states the major religions practiced in China are Buddhism, Taoism, Islam, Catholicism and Protestantism, and religious believers total almost 200 million (including more than 380,000 clerical personnel). The white paper also notes the majority of 10 of China’s ethnic minorities, totalling 20 million people, follow Islam (around 57,000 clerical personnel); 6 million follow Catholicism (8,000 clerical personnel); and 38 million follow Protestantism (57,000 clerical personnel).

    [3.31]    The CPPPFRB white paper indicates there are also approximately 5,500 religious groups in China, including seven national organisations: the Buddhist Association of China, Chinese Taoist Association, China Islamic Association, Chinese Catholic Patriotic Association, Bishop’s Conference of Catholic Church in China, National Committee of the Three-Self Patriotic Movement of the Protestant Churches in China, and the Christian Council. There are also an estimated 144,000 places of worship in China: 28,000 Han Buddhist temples; 3,800 Tibetan Buddhist lamaseries; 1,700 Theravada Buddhist temples; 9,000 Taoist temples; 35,000 Islamic mosques; 6,000 Catholic churches and places of assembly spread across 98 dioceses, and 60,000 Protestant churches and places of assembly. China also has 91 religious schools, approved by the State Administration of Religious Affairs (SARA), where more than 10,000 students study, including: 41 Buddhist, 10 Taoist, 10 Islamic, nine Catholic and 21 Protestant schools. It has six national level religious colleges: the Buddhist Academy of China, High-Level Tibetan Buddhism College of China, Chinese Taoism College, China Islamic Institute, National Seminary of the Catholic Church in China, and Nanjing Union Theological Seminary.

    [3.32]    In practice, the number of religious believers, places of worship and religious organisations is likely to be much higher - particularly with respect to unregistered organisations (including house churches) which operate in parallel to state sanctioned Christian churches. Freedom House estimates there are more than 350 million religious believers in China who are mostly Chinese Buddhists (185 to 250 million), followed by Protestants (60 to 80 Million, of which only 30 million are registered), Muslims (21 to 23 million), Falun Gong practitioners (7 to 20 million), Catholics (12 million, of which 6 million are registered) and Tibetan Buddhists (6 to 8 million). Other otherwise unaccounted for groups tend to observe aspects of Buddhism, Daoism and ‘folk religion’. Discrepancies between official statistics and international estimates are due to the fact that China does not recognise worshippers who engage in religious activity outside of state-sanctioned organisations or believers who are under 18. [2]

    [2] DFAT, Country Information Report – China, 3 October 2019, para [3.28] – [3.32].

    Religion in Fujian

    [3.33]    While a wide variety of religions are practised across China, they are generally able to thrive to a greater degree in Fujian province (Fujian). This is largely due to Fujian’s ethnic and linguistic diversity and historical geographical isolation from other parts of China. However, Fujian’s links with other areas of China increased following the mid-1950s completion of a railway line that connected Xiamen to other areas of China.

    [3.34]    Fujian, home to only 2.8 per cent of the Chinese population, is located in the southeast of the People’s Republic of China, bordered by Zhejiang Province to the north, Jiangxi Province to the west and Guangdong province to the south. Its main cities are Fuzhou, Xiamen and Quanzhou, which are all located along or close to the coast facing the Taiwan Strait. Quanzhou linked Tang dynasty China (618 – 907) with Southeast Asia through trade and shipping.

    [3.35]    Because of poverty and poor agricultural productivity, Fujian residents have a long history of emigration to Southeast Asia and, in more recent times, to the United States, Europe, Australia and Africa. Fujian is the historic ‘hometown’ of many overseas Chinese and in 2017 there were an estimated 15.8 million people originating from Fujian residing across 180 countries and regions overseas. The historical willingness of people from Fujian to travel overseas continues in 2019.

    [3.36]    DFAT assesses that individuals in Fujian have historically practised religion more freely within state sanctioned boundaries than in other parts of China, as long as practices do not challenge the interests or authority of the Chinese Communist Party. However, DFAT assesses religious control in Fujian has incrementally tightened, albeit from a looser base, in line with the rest of the country (See Government Framework regarding religion).

    Government framework regarding religion

    [3.37] Chinese law recognises five religions (Buddhism, Taoism, Islam, Catholicism and Protestantism), members of which must register with the government’s Patriotic Associations mentioned above (Protestants must be non-denominational). These organisations must be independent of foreign associations (for example, the Vatican).

    [3.38] Article 36 of the Constitution states that citizens enjoy freedom of religious belief, and that no state organ, public organisation or individual may compel citizens to believe in, or not believe in, any religion. Discrimination on the basis of religion is prohibited by law. According to China’s 2018 CPPPFRB white paper, every citizen ‘enjoys the freedom to choose whether to believe in a religion; to believe in a certain religion or a denomination of the same religion; to change from a non-believer to a believer and vice versa. Believers and non-believers enjoy the same political, economic, social and cultural rights, and must not be treated differently because of a difference in belief.’ However, Article 36 of the Constitution also states that no one may make use of religion to engage in activities that disrupt public order, impair the health of citizens or interfere with the educational system of the State. This is enforced by Chinese public security officials who monitor registered and unregistered religious groups.

    [3.39] Historically, the CCP’s United Front Work Department (UFWD), State Administration for Religious Affairs (SARA), and the Ministry of Civil Affairs provided policy guidance and supervision on the implementation of the regulations. However, in 2018 the CCP moved religious affairs under the direct purview of the UFWD, and thus the CCPs Central Committee. To ‘ensure centralised and unified leadership,’ the UFWD absorbed SARA and has direct oversight of the State Ethnic Affairs Commission and the Overseas Chinese Affairs Office, and has been elevated to a level of importance not seen since 1949.

    [3.40] The conditions governing the establishment of religious bodies and religious sites, the publication of religious material, and the conduct of religious education and personnel are outlined in the Regulations on Religious Affairs (RRA). In April 2017, President Xi called on CCP officials working in religious administration to reassert the Party’s ‘guiding’ role in religious affairs. Xi’s speech emphasised the need to ‘sinicise’ religion, to ensure religious rights did not impinge on CCP authority, and to enforce the prohibition on Party members from belonging to any religion. In September 2017, the State Council approved revisions to the 2005 RRA, which came into effect on 1 February 2018. The RRAs devolve substantial powers and responsibility to local authorities to prevent illegal religious behaviour, including undue influence from foreign organisations. Local authorities have significant discretion in interpreting and implementing the regulations at the provincial level.

    [3.41] The 2018 RRAs ‘protect citizens’ freedom of religious belief, maintain religious and social harmony and regulate the management of religious affairs,’ and give state-registered religious organisations rights to possess property, publish literature, train, and approve clergy, collect donations, and proselytise within (but not outside) registered places of worship and in private settings (but not in public). Government subsidies are also available for the construction of state-sanctioned places of worship and religious schools.

    [3.42] According to the State Council, the RRA also ‘curb and prevent illegal and extreme practices,’ and emphasise the need to prevent ‘extremism’, indicating they may target Uighur Muslims and Tibetan Buddhists. The RRAs: restrict religious education in schools; restrict the times and locations of religious celebrations; impose fines for organising illegal religious events or fundraising; detail procedures for approval and monitoring of religious training institutions and monitoring online religious activity; detail a requirement to report all donations over RMB 100,000 (AUD 20,750); prohibit registered religious organisations from distributing unapproved literature, associating with unregistered religious groups, and accepting foreign donations (previously permitted); and prohibit foreigners from proselytising. Parallel provisions in the Foreign NGO Law also prohibit foreigners from donating funds to Chinese religious organisations, or raising funds on their behalf.

    [3.43] The devolution of enforcement of the RRAs to local government and Party authorities also affects unregistered Christian churches. Historically, those involved with unregistered churches could be charged with fraud. However, under the RRA it is now considered a crime to organise people for the purpose of religion (with a particular focus on the organisers).

    [3.44] Broadly speaking, religious practice in China is possible within state-sanctioned boundaries, as long as such practices do not challenge the interests or authority of the Chinese government. While practice of non-recognised faiths or by unregistered organisations is illegal and vulnerable to punitive official action, it is, to some degree, tolerated, especially in relation to traditional Chinese beliefs. Nevertheless, restrictions on religious organisations vary widely according to local conditions, and can be inconsistent or lack transparency, making it difficult to form general conclusions.

    [3.55] In September 2017, Radio Free Asia reported that Xinjiang police were confiscating all ‘Islamic-related items’, including prayer mats and copies of the Koran. In 2016 and 2017, officials in Xinjiang actively prohibited Ramadan observance, reportedly forcing people to eat during the day.

    [3.56] Courts in Xinjiang have handed down a number of sentences to people convicted of conducting religious activities (see Ethnic Uighurs). In June 2017, for example, a court sentenced a person to two years in prison for posting Islamic religious instruction on social media. Reports also indicate Uighurs have been jailed for distributing unauthorised religious material on the internet, and large numbers of Muslims have been sent to ‘re-education centres’. According to media reporting, behaviour which could lead to detention in such a centre includes, but is not limited to: following a ‘halal lifestyle,’ preventing children from attending state education, refusing to watch state television or listen to state radio, and spreading religious fanaticism by having ‘abnormal beards’ or ‘unusual names.’

    [3.57] While non-Uighur Muslims in the rest of China have historically experienced greater religious freedom, the government backed China Islamic Association is reportedly developing a five-year plan to sinicise Islam, which media claims is mostly targeted at Hui Muslims. In November 2018, Chinese state media also reported local authorities in the NAR had signed a ‘cooperation anti-terrorism agreement’ with Xinjiang, to ‘learn from the latter’s experiences in promoting social stability.’

    [3.58]    In August 2018, hundreds of ethnic Hui protested in Tongxin, Ningxia, following the demolition of the newly built, Islamic-style Weizhou Grand Mosque. The Weizhou Grand Mosque had originally been a Chinesestyled building which was demolished during the Cultural Revolution. The Islamic-styled mosque was rebuilt with local government support, however was accused of contravening China’s policy of religious sinicisation. Restrictions on religious expression have led some Hui to fear increasing restrictions on their religious practice.

    [3.59]    DFAT assesses state sponsored religious control of Muslim Uighurs was significant in 2018, and remains so in 2019. DFAT assesses Uighur Muslims in Xinjiang face a high risk of official and societal discrimination based on their religion. DFAT assesses Uighur Muslims outside of Xinjiang face a high risk of official discrimination due to their religion and a moderate risk of societal discrimination.

    [3.60]    DFAT assesses that non-Uighur Muslims in other parts of China have historically faced a low risk of official and societal discrimination (as they are more integrated and are not perceived to pursue an independence agenda); however, DFAT notes a trend of official discrimination towards all Muslims grew in 2018, and continues to do so in 2019. [3]

    [3] DFAT, Country Information Report – China, 3 October 2019, para [3.33] – [3.60].

    […]

    Christians

    [3.76]    China has seen a significant growth in Christianity since the 1980s. In 2010, the Pew Research Center estimated there were 67 million Christians in China (58 million Protestant, including both state-sanctioned and independent churches). However, 2018 estimates had grown closer to 100 million (unregistered churchgoers outnumber members of official churches nearly two to one).

    [3.77]    In addition to state-sanctioned Catholic and (non-denominational) Protestant churches in China, SARA historically permitted friends and family to hold small, informal prayer meetings without official registration. This, combined with the controlled nature of religious worship amongst registered Christian institutions, has led to the proliferation of sizeable unregistered Christian communities in both rural and urban China. Independent churches, otherwise known as ‘house’ or ‘family’ churches (for Protestant organisations), and ‘underground’ churches (for Catholic organisations) are private religious forums that adherents create in their own homes or other places of worship. ‘House’ or ‘underground’ churches vary in size from around 30 to several thousand participants/attendees.

    [3.78]    There has been an increase in state control of both registered and unregistered churches in recent years, including targeted campaigns to remove hundreds of rooftop crosses from churches, forced demolitions of churches, and harassment and imprisonment of Christian pastors and priests (see Government Framework regarding religion). Some churches deliberately restrict their numbers to avoid attracting adverse official attention. Government officials are more likely to scrutinise churches with foreign affiliations, or those that develop large or influential local networks, and house churches are under pressure to ‘sinicise’ their religious teachings.

    [3.79]    Leaders of both registered and unregistered churches are also subject to greater scrutiny than ordinary worshippers are, and leaders of registered churches must obtain permission to travel abroad. Church leaders (registered or unregistered) who participate in protest activity on behalf of their congregations or elsewhere are at high risk of official sanction, but this is likely to relate more to their activism than to their religious affiliation or practice (see Political Opinion (actual or Imputed) and Protesters/petitioners).

    [3.80]    Religious NGOs claim that, while pressure on Christian groups differs from province to province, a trend of increased pressure on Christian groups normalised across provinces in 2018. Authorities apply pressure to Christian churches during monthly ‘tea’ meetings. According to media, authorities cracked down on Christmas celebrations in December 2018. Several cities, schools and government institutions issued instructions not to celebrate Christmas and to promote Chinese culture instead, and at least four cities and one county issued a ban on Christmas decorations. In Langfei, Hebei province, authorities ordered the removal of all Christmas decorations and stopped shops selling Christmas-themed products to ‘maintain stability.’ In Changsha, Hunan province, the education bureau issued a directive to schools not to celebrate ‘western festivals’ such as Christmas, and not to put up decorations, post related messages or exchange gifts. Nevertheless, DFAT notes Christmas decorations were still visible in some department stores in major cities across China.

    [3.81]    In December 2018, police raided a children’s bible class in Guangzhou, and shut down the Early Rain Covenant Church in Chengdu, arresting 100 members and keeping others under close surveillance in December 2018. In September 2018, one of China’s largest underground churches, Beijing Zion Church, was shut down (see Government Framework regarding religion). Members of the Early Rain Covenant Church were detained by authorities in June 2018 due to plans to hold a prayer service to mark the anniversary of Tiananmen Square and, in May 2018, due to plans to hold a prayer service to mark the tenth anniversary of the Sichuan earthquake.

    [3.82]    Heightened government sensitivity over foreign influence creates difficulties for prominent members of unregistered churches seeking to travel abroad, particularly for religious events, and for foreign church organisations to work, or liaise with registered churches, in China. NGOs report increasing difficulties for mainland Christians seeking to travel to Hong Kong or Macau for religious activities, and for Christian NGOs or activists from Hong Kong and Macau to travel to the mainland.

    [3.83]    DFAT assesses members of unregistered churches who participate in human rights activism are at high risk of official discrimination and violence, as are their families (see Political Opinion (actual or Imputed). DFAT assesses the adverse attention relates to their activism and association with unregistered (and illegal) organisations, rather than specifically to their Christian faith. [4]

    […]

    POLITICAL OPINION (ACTUAL OR IMPUTED)

    [3.119] Article 35 of China’s Constitution states that citizens of the People’s Republic of China enjoy freedom of speech, the press, assembly, association, procession and demonstration. China’s 2018 White Paper on Progress in Human Rights over 40 years, also states ‘the system of multi-party cooperation and political consultation…gives expression to people's democracy...It guarantees that all social strata, people's organizations and patriots from various quarters can express their opinions and play a role in the country's political and social life.’ China’s National Human Rights Action Plan 2016-2020 also outlines the Government’s plans to advance the right to expression ‘giving more space to public opinion, […] improving the check and supervision system for the operation of power, and protecting in accordance with the law the citizens’ rights of free expression and democratic supervision’.

    [3.120] In practice, however, laws and regulations enforcing these constitutional rights are not well developed. China’s law requires all gatherings of people numbering more than 200 persons to obtain approval from public security authorities. The Law of Assemblies, Demonstrations and Processions (1989) puts organisers of unapproved protests at risk of detention or prison sentences, often on public order charges.

    [3.121] The CCP has little tolerance for public dissent on a wide-range of matters considered politically sensitive, including social stability, the legitimacy of central authorities and one-Party rule, and other topics that authorities consider might aggravate social unrest. Examples of issues which authorities deem sensitive include, but are not limited to, commentary on serious economic, health and environmental concerns, financial risks, land and property issues, ethnic and religious unrest, labour disputes and official responses to natural or anthropogenic disasters. The Party and government may, in limited circumstances, tolerate commentary on corrupt local officials, particularly those already under investigation (see Corruption). What the authorities deem sensitive can change with no warning.

    [3.122] Pre-emptive detention of activists and rights defenders is common around sensitive political anniversaries and other high profile political or ‘sensitive’ events (see Arbitrary Arrest and Detention). Those publicly advocating greater human or civil rights, including the ‘709 Lawyers’ (see Human Rights Defenders (including Lawyers)) have also been detained and charged under public order offenses or accused of state subversion. Duihua’s Political Prisoners Database, which records information about political and religious prisoners incarcerated in China since 1980, contained 40,053 entries as of April 2019.

    [3.123] In recent years, several people charged with political offences have appeared on Chinese state television making public confessions to alleged crimes. In some cases, the public confessions have taken place before trial and conviction. Recent examples include several ‘709’ lawyers (see Human Rights Defenders (including Lawyers)), journalists who have exposed official abuse of power, and two registered refugees who were returned from Thailand (see Enforced or Involuntary Disappearances). Those confessing commonly express regret for having sought to sow instability and work against the authority of the CCP, and have often included alleged admissions of colluding with ‘foreign forces’ to destabilise the country. Some have subsequently claimed their confessions were forced.

    [3.124] Political prisoners can legally be deprived of political rights (freedom of speech, assembly, association, procession, demonstration, vote and holding a position in a state organ) after completing a prison term. In many cases, individuals have been placed under house arrest for extended periods of time after official release from prison (see Arbitrary Arrest and Detention). Those deprived of political rights can face difficulties finding employment, renting property, travelling freely, and accessing social services. Such penalties can also now be formalised under the social credit system (see The Social Credit System). Prisoners and their families have reported harassment or intimidation, including police surveillance, telephone wiretaps, and property and body searches.

    [3.125] Families of dissidents, including children, have also been subject to movement restrictions, exit bans and other forms of harassment by Chinese authorities. The teenage son of a ‘709’ lawyer was placed under effective house arrest from 2015 until late 2017 (see Enforced or Involuntary Disappearances). Children of other ‘709’ lawyers have been denied entry to primary school and pre-school, and the spouses of some detained lawyers have reported being evicted from their apartments. Chinese authorities have also reportedly harassed family members in China of overseas dissidents. Overseas Uighur activists have reported police harassment of their China-based families, including jail terms (see Ethnic Uighurs). Other high profile critics of the Chinese government’s human rights record have also reported harassment of their China-based families and some have publicly severed ties with their families in order to protect them from further harassment. DFAT is aware of claims that authorities have confiscated ID cards or hukou (see Hukou (household registration) system) of families of dissidents, limiting their ability to access medical care, education and social services.[5]

    [4] DFAT, Country Information Report – China, 3 October 2019, para [3.76] – [3.83].

    [5] DFAT, Country Information Report – China, 3 October 2019, para [3.119] – [3.125].

    Hearing, credibility, findings, and assessment

1. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.

2. In considering overall the credibility of the applicant the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.

3. The Tribunal is satisfied that the applicant is a citizen of China and accordingly his claims will be assessed against China.

4. Paragraph 20 above sets out claims of harm faced by the applicant’s mother on the basis of which it is claimed that the applicant faces derivative harm.

5. The applicant’s mother made her own claims for protection on these grounds on 11 September 2015. Her claims were not accepted by the delegate and the applicant’s mother sought a review with the Tribunal. As indicated, that matter was constituted to this same Member who has been constituted for the applicant’s review. The Tribunal conducted a substantive hearing relating to the applicant’s mother’s claims on 4 August 2021. Claims by the applicant’s mother of harm in China, given that this is the basis on which it is also claimed that the applicant faces harm, were also canvassed in the Tribunal hearing in relation to the applicant’s claims with the applicant’s mother, appearing on the applicant’s behalf, together with the applicant’s father.  In particularly, credibility issues of the Tribunal in relation to the applicant’s mother’s claims were put to the applicant’s mother in the Tribunal hearing in relation to this matter.

6. The Tribunal has considered the responses by the applicant’s mother to these credibility issues in the applicant’s mother’s application for review. Her relevant responses to these matters in the hearing of this matter are set out in the Tribunal decision relating to the mother, made on the same day as the Tribunal’s decision on this matter.

7. The Tribunal was not satisfied as to the truth of the applicant’s mother’s relevant claims. These findings are relevant to claims made by the applicant that he faces harm based on his mother’s issues in China. The Tribunal decision of the applicant’s mother should be read, in relation to the applicant’s claims, in conjunction with this decision.

8. As the reasoning in the mother’s decision concludes, the Tribunal is not satisfied as to the credibility of any of the issues claimed in paragraph 20 of this decision. The Tribunal in the mother’s decision finds:

   68.      Given all of the credibility concerns identified, which are numerous and some significant, the Tribunal is not satisfied that the applicant has been truthful in her claims in relation to her former boyfriend, his release from prison and a targeting of all of the individuals involved in his initial conviction.

   69.      The Tribunal is not satisfied that the applicant’s boyfriend was arrested, imprisoned and subsequently corruptly released in the circumstances claimed, including not satisfied that the applicant had any involvement in his arrest and/or made a complaint to police about criminal activities of her former boyfriend. The Tribunal is not satisfied that authorities or the applicant or any others who were involved in the conviction of her former boyfriend have been targeted by authorities in China as a result of their involvement in facilitating all the conviction and sentence of the former boyfriend.

   70.      The Tribunal is not satisfied that the applicant’s parents have been questioned by authorities in 2015 in terms of allegations of the applicant ‘framing’ the former boyfriend. The Tribunal is not satisfied that other individuals and/or ‘thugs’ have had adverse encounters with the applicant’s parents on account of the applicant’s involvement in the arrest of her former boyfriend.

   71.      The Tribunal is not satisfied that any authorities in China or the applicant’s former boyfriend or associates have an adverse interest in the applicant as a result of her involvement in an arrest and detention of her former boyfriend.

9. Given these concurrent findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm derivative of the above factual claims by the applicant’s mother as to harm based on issues relating to the arrest, detention and release of her former boyfriend.

10. Given these findings, the Tribunal is not satisfied that the applicant would be denied the mothering, care and support, including financial support, of his mother in China on the basis that his mother would be detained by authorities or suffer harm from thugs.

11. In the Tribunal hearing relating to the applicant’s claims, the Tribunal explored with the applicant’s father his claims for protection based upon involvement in the Local Church on which it is claimed that the applicant will face derivative harm.

12. The applicant’s father maintained the truth of his claims to have been involved as a leader and organiser of the Local Church in [Country 1] and China, and that he faces harm from authorities and detention given this involvement on his return. The applicant’s father maintained that his own father had been detained because of his father’s Local Church involvement and on account of the involvement of the applicant’s father’s involvement.

13. The Tribunal asked the applicant’s father why, if it is claimed that the applicant faces derivative harm China as a result of the father’s issues, he did not appear at the interview with the delegate in relation to [the applicant’s] claims. Instead, the applicant’s mother appeared and only gave evidence that the applicant faces harm based on the issues in China claimed by the applicant’s mother, set out in paragraph 20. In response, the applicant’s father indicated that he had a cold at the time of the interview and was uncomfortable about attending, and let his wife go.

14. The failure by the applicant’s father to attend the interview with the delegate and give evidence as to his issues, that were initially claimed to be the sole issues creating harm for the applicant, casts significant doubt as to the truth of those claims. The interview is a very important part of the process of the delegate considering the claims, and the only opportunity for questions.

15. The applicant’s father in the hearing indicated that he stopped attending the Local Church in Australia in 2016 and now attends [Church 1] with the applicant’s mother. The applicant’s father indicated that if he returned to China he would be involved with a more mainstream church, not the Local Church.  However, the applicant’s father indicated that he would still be detained by authorities in China as a result of his past involvement in the Local Church in China.

16. The Tribunal put to the applicant’s father concerns as to how he could go from being a leader and organiser of the Local Church in China and [Country 1], and leave the church in Australia for a more mainstream church. In response, the applicant’s father indicated that his personal situation had changed and that he needed to think about his family and that the mental state of his wife was not good and that she did not embrace the Local Church.

17. The Tribunal has credibility concerns in relation to the applicant’s father’s claims of significant Local Church involvement in China and [Country 1], given that he would quite readily switch allegiance from the Local Church, which operates in Sydney, to a more mainstream church, notwithstanding that this was the preference of his wife.

18. These concerns are significantly reinforced by the rejection of the claims by the applicant’s father based on involvement in the Local Church in China and [Country 1] by the delegate and this Tribunal as previously constituted in consideration of his protection claims, and by this Tribunal in consideration of his evidence in support of the applicant’s claims.

19. Considering all of the evidence, the Tribunal has considerable credibility concerns as to the claimed past involvement of the applicant’s father in [Country 1] and China and that there is any basis on which he faces harm or detention by authorities as a result, on return to China.

20. Nevertheless, the Tribunal, while having significant doubt, based on past evidence by the applicant’s father, accepts, for the purpose of this decision only, that the applicant’s father is of adverse interest to authorities in China based on his church activity and there is a risk of his detention.

21. If the applicant’s father’s claims are to be accepted, the Tribunal has concerns that adverse attention by authorities in China towards the applicant’s father and a risk of his being detained would result in requisite harm being suffered by the applicant.

22. The Tribunal put to the applicant’s parents in the hearing, that even if it were to accept the claims by the applicant’s father at face value and that he was at risk of being detained in China, the applicant would still have the protection and care of the applicant’s mother, who would also be in a position to provide financial support. In response, the applicant’s mother referred to the fact that the applicant would lose the presence and love of his father.

23. The Tribunal is not satisfied that financial hardship caused by the absence of the applicant’s father would constitute harm to the applicant for a protection criterion reason or constitute or fall within any definition of significant harm. In relation to the latter, financial hardship would not result in cruel or inhuman treatment or punishment or degrading treatment and punishment as defined categories of significant harm because such harm, as defined, requires intentionality by a person or body to inflict harm. This would not be the case in relation to lack of financial resources.

24. It has been claimed that the applicant would face discrimination if his parents were detained. The Tribunal, for the reasons indicated, is not satisfied that the applicant’s mother would be detained in China. For the purpose of this decision, the Tribunal proceeds on the basis that the applicant’s father was detained in China.

25. The Tribunal put to the applicant’s parents that it could accept there might be some degree of discrimination based on the applicant’s father being detained, but the Tribunal does not consider that this would rise to the level of serious harm or fall within any definition of significant harm.

26. In response, the applicant’s mother indicated that the family have been in Australia a long time and there would be discrimination on return. While the Tribunal accepts the potential for some discrimination, the Tribunal does not consider this would be to an extent and level that would meet the requisite harm for the purpose of protection criteria. The Tribunal is not satisfied that any discrimination suffered as a result of the detention by the parent would rise to the level of serious harm or fall within any definition of significant harm.

27. The Tribunal is not otherwise satisfied that the applicant faces a real chance of serious or significant harm in China, even if the claims by the applicant father as to his involvement in the Local Church are to be believed.

28. The Tribunal turns to claims that the applicant faces harm in China due to his inability to attend church, as a minor.

29. The applicant’s mother in the Tribunal hearing relating to her claim for protection indicated that she attended her village house church as a child. She indicated that her mother still attends this house church without significant difficulty.

30. The applicant mother indicated that there had been increasing church persecution in China and children had been stopped from attending the church.

31. The Tribunal explored with the applicant’s mother in the hearing when she became aware that her local village church (which her mother still attends) stopped children attending. In response, the applicant indicated that this was two to three years ago.

32. The Tribunal put to the applicant’s mother that in the Tribunal hearing relating to her claim (held on 4 August 2021), she indicated that it was six months previously that there had been surveillance and an edict that children were not allowed to attend the gatherings.

33. In response to this inconsistency, the applicant’s mother indicated that it was two or three years ago that her mother told her that children were not allowed in the church, but that six months ago she was also told by her uncle.

34. The Tribunal is not satisfied that this explanation adequately explains the inconsistency. If the applicant’s mother had first learned that children were not allowed in the local village church two to three years previously, this is what she would have told the Tribunal, rather than indicating when she learnt this for the second time from her uncle.

35. The Tribunal, further, does not consider that a time difference of six months as between two to three years could readily be confused with each other.

36. The Tribunal put to the applicant’s mother in the hearing that it accepted from independent evidence (the DFAT information) that there had been, in recent years, a crackdown on religion in China. Consistent with this crackdown would be limitations imposed on the ability of minors to attend church. However, information (from DFAT) indicates a relatively flexible and lenient approach to religion in Fujian.  The Tribunal indicated that it had not insignificant overall credibility issues with claims made by the applicant’s mother, who has been the parent making claims based on religion on behalf of the applicant. Claims by the applicant’s mother in relation to her own protection matters demonstrate untruthfulness and opportunism. There is a specific inconsistency in terms of when it is claimed the restriction on children attending the local village house church occurred. All of this could cause the Tribunal to doubt the truth of claims there was a restriction on children attending the local village house church of the applicant’s family.

37. In response, the applicant’s mother repeated that the situation in China is very strict and that children cannot attend church.

38. Considering all of the evidence of the applicant’s mother in the hearing, the Tribunal has significant doubts about the truth of this claim.

39. Nevertheless, given the recent crackdown on religion in China the Tribunal proceeds for the purpose of this decision only, on the basis that the applicant would be restricted from attending his local church in China as a minor.

40. The Tribunal discussed with the applicant’s parents whether, if the applicant was not permitted to attend the local house church as a minor, this would constitute requisite harm for protection purposes. The applicant as [an age]-year-old would be unlikely to have the consciousness in relation to religion to suffer requisite harm for protection purposes as a result of not being allowed to attend a church as a minor. The applicant’s parents would be able to instruct the applicant religiously at home. As an adult, the applicant would be able to worship publicly to the extent sanctioned in Fujian.

41. In response, the applicant’s mother indicated that the family needs to attend church as a harmonious unit. There would be logistical problems if the children had to stay at home while the parents attended church.

42. If it is the case that the applicant cannot attend his local village church, the Tribunal accepts that this provides a degree of limitation in his religious upbringing and practice contrary to what the applicant’s parents would wish for him, in terms of being able to publicly attend the church with his parents.

43. The Tribunal accepts that this does constitute some degree of harm but its extent is limited by the young age of the applicant, which limits the extent to which the Tribunal considers that this harm would be subjectively felt by the applicant. As indicated, the applicant’s parents would be free to instruct the applicant religiously at home, and for him to attend church publicly as permitted as an adult.

44. Considering all of the claims and evidence, the Tribunal is not satisfied, in the applicant’s circumstances, that there is a real chance that he would be subject to a real chance of serious or significant harm consisting of/resulting from the lack of opportunity, currently as [an age]-year-old, to attend a house church or to receive publicly a church education as a minor.

45. It has been claimed that requisite harm would be caused to the applicant in China as a result of the potential to be indoctrinated in his education in the Chinese Communist system, the lack of free speech in China, and not having the freedoms of a Western country.

46. The Tribunal accepts these matters to be the case for the applicant on return to China. However, such harm applies to the whole Chinese population and would not constitute discriminatory conduct for the purpose of the refugee criterion (s.5J(4)(c)). In relation to the complementary protection criterion, such harm would not meet the criteria because it is a risk faced by the population of the country generally, rather than by the applicant personally (s.36(2B)(c)).

47. The Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm for any of the reasons claimed.

48. In summary, the Tribunal is not satisfied that the applicant faces persecution for a reason set out in s.5J(1). The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, he faces a real risk of significant harm.

49. 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).

50. 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).

51. 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 criteria in s.36(2).

    DECISION

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

    David McCulloch
    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.

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