1801301 (Refugee)

[2019] AATA 5770

1801301 (Refugee) [2019] AATA 5770 (30 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1801301

COUNTRY OF REFERENCE:                   China

MEMBER:Louise Nicholls

DATE:30 April 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 30 April 2019 at 3:31pm

CATCHWORDS

REFUGEE – protection visa – China – Federal Circuit Court Remittal – past Christian activities – member of founding house church congregation – detention and mistreatment by police – adverse attention by authorities – fear of discrimination – member of a particular social group – delays in protection application – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 19A(1)

Migration Act 1958 (Cth), ss 5, 36, 65, 91, 438, 499

Migration Regulation 1994 (Cth), Schedule 2, r 1.12

CASES

MIAC v SZGUR (2011) 241 CLR 594
MZXRE v MIAC (2009) 176 FCR 552
SZEPZ v MIMA (2006) 159 FCR 291

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

1. The applicants are a married couple and both claim they were born in the People’s Republic of China (China). The applicant wife arrived in Australia as the holder of a student visa [in] August 2007. The applicant husband arrived in Australia as the holder of a student visa [in] April 2008. The applicants were born in different regions of Fujian Province, China and were unknown to each other until they met in Sydney.

2. The applicant wife applied for a protection visa on 12 June 2014. The applicant husband was included in her application as a member of her family unit on 26 September 2014.

3. On 2 July 2015 a delegate of the Minister for Immigration and Border Protection refused to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act) on the basis that they did not meet the requirements for that visa. The applicants have sought review from the Tribunal.

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

   Procedural history

5. The applicants initially sought review of the delegate’s decision at the Tribunal on 14 July 2015. The Tribunal, differently constituted, affirmed the delegate’s decision on 24 October 2016.

6. [In] November 2017 the Federal Circuit Court quashed the Tribunal’s decision and remitted the application for review to the Tribunal for determination according to law. The court found that the Tribunal had failed to consider, in its complementary protection assessment, the conduct of the applicants in Australia.

7. The matter is now before the Tribunal pursuant to s.19A(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act).

8. The applicants attended a hearing before the Tribunal, differently constituted on 11 October 2016. The Tribunal has listened to a recording of that hearing.

9. The applicants appeared before the Tribunal on 11 April 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

10. The applicants both gave further evidence in relation to their background, their claims for protection, their conduct in Australia and other relevant matters.

11. The Tribunal explained the reasons for remittal and reconsideration and indicated that the evidence given to the Tribunal differently constituted could be taken into account in the review.

    What material has been provided by the applicants?

12. The applicant wife made an application for protection on 12 June 2014. In the section asking her for her reasons for claiming protection she referred to her statement.

13. The applicant provided the Department a number of documents including:

    ·The applicant wife’s statement setting out her claims for protection.

    ·Copies of the biodata pages of the applicants’ Chinese passports.

    ·Two copies of the weekly newsletter of [Church 1] [Suburb 1] dated [in] February 2014 and [in] April 2015.

    ·A copy of a bookmark presented to the applicant husband on his baptism [in] May 2008.

    ·13 photographs showing the couple being baptised and married.

    ·A copy of the applicants’ New South Wales Certificate of Marriage dated [January] 2015.

    ·A letter from a fellow parishioner, [Ms A], dated [April] 2015, and English translation.

14. The applicants also provided a number of documents relating to their application for permission to work. These documents related to the couple’s financial and personal circumstances as they related to their need to work.

15. The applicants attended an interview with the departmental delegate on 13 April 2015. Following that interview the delegate contacted a person who is a member of the [Church 1] [Suburb 1] congregation.

16. There are no certificates issued pursuant to s.438 of the Act restricting disclosure of any material on the Department’s file.

17. The applicants attended a hearing with the Tribunal, differently constituted, on 11 October 2016 and gave oral evidence in relation to their claims.

18. The applicants provided the Tribunal with copies of:

    ·Delegate’s decision record dated 2 July 2015.

    ·Newsletter from [Church 1] [Suburb 1] dated [in] October 2016.

    ·Further photographs showing the applicants in a group of people and the building which appears to be the venue for meetings of [Church 1] [Suburb 1].

    ·Two letters from fellow parishioners from [Church 1] dated [in] April 2019.

19. The applicants attended a hearing with the Tribunal on 11 April 2019 and both gave oral evidence.

    CONSIDERATION

20. The issue in this case is whether either of the applicants meets the refugee criterion and, if not, whether either is entitled to complementary protection.

21. The relevant law is set out in Attachment A.

    What information can be considered on remittal?

22. Where a direction is given to reconstitute the Tribunal, the AAT Act requires the reconstituted Tribunal to continue the proceeding.[1] In completing a reconstituted review, the Tribunal may have regard to any record of the proceeding as previously constituted.[2] This includes any record of evidence taken in the proceeding. The Tribunal must determine the review by dealing with the issues as they present themselves at the time of its determination and according to the facts as the Tribunal finds them to be at that time.

    [1] s.19D(4) of the AAT Act, inserted by the Tribunals Amalgamation Act 2015 (No.60 of 2015).

    [2] s.19D(4) of the AAT Act, inserted by the Tribunals Amalgamation Act 2015 (No.60 of 2015). See also SZEPZ v MIMIA (2006) 159 FCR 291 at [39] and MIAC v SZGUR (2011) 241 CLR 594 at [50].

23. In SZEPZ v MIMA (2006) 159 FCR 291, a Full Court of the Federal Court found that, where an RRT decision has been set aside by a court and the matter remitted for reconsideration owing to a jurisdictional error, it does not follow that all the steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the material that was obtained when the decision that had been set aside was made and is obliged to continue and complete the particular review and not to commence a new review.[3]

    [3] MZXRE v MIAC (2009) 176 FCR 552 at [5] North and Rares JJ.

24. In conducting the review the Tribunal has considered the material provided to the Tribunal and the oral evidence given at the previous hearing held by the Tribunal, differently constituted.

    Background

25. The applicant wife was born in [Village 1], Fuqing City District in Fujian Province. She is now [age] years of age. She gave evidence at the second Tribunal hearing that her parents are alive and her mother, two sisters and one brother live in the family home in her home village. Her paternal grandparents also live in [Village 1]. Her two sisters are married and her brother is engaged. The family all live in one house and the applicant stated that her sisters are working and contribute to the financial support for the household.

26. The applicant gave evidence at the first Tribunal hearing that she had three sisters and one brother. The children had all attended “boarding school” and her parents had paid the social compensation fees for all the children. Her sisters are [working]. Her brother was not working or studying. The Tribunal notes the inconsistent evidence regarding the number of the applicant’s siblings but accepts that this may have arisen because in the first hearing the applicant she may have included herself in the number of siblings.

27. She claims that her father is living in Yunnan Province and does not live with the family. She stated that he is doing odd jobs to support himself. The Tribunal put to her that it is quite common for family members to move or travel to other provinces for the purposes of work. She stated that he left Fujian Province to avoid persecution, not to obtain work in another province. At the first Tribunal hearing the applicant wife told the Tribunal that her father was living in the same village as the rest of the family. The applicant wife’s father is a [Occupation 1] and her mother is a homemaker. Her father lives by himself in a different place and her sisters and brother live with her mother. 

28. The applicant wife attended school in her home village and completed half of senior high school before she came to Australia on a student visa. She arrived in Australia in 2007 as a student visa holder and attended an English language college for about six months. She claimed the college suddenly closed down and she was not able to continue her English language studies. She told the Tribunal that after attending the course her English skills improved considerably.

29. She claimed that she did not know what to do when the college closed. She consulted an agent who advised her she could transfer to another course but she did not have the money to support further studies so she decided to stay in Australia and support herself through finding work. She found work [in a certain area], and later found work in [another area].

30. She met the applicant husband in 2014 and they married [in] January 2015. The applicants have one [child],

31. The applicant wife gave evidence that her student visa ceased in 2010 and that she applied for a protection visa in June 2014. She did not hold a visa between March 2010 and June 2014.

    Country of reference

32. The applicants both claim they were born in China and were citizens of China. They provided copies of their Chinese passports. They have consistently claimed that they are of Chinese nationality, they appear to speak Mandarin fluently and they were familiar with the geography and culture of Fujian Province, China.

33. Taking into account the available evidence the Tribunal is satisfied that the applicants are citizens of China and that China is a receiving country for the purpose of s.36(2)(aa) of the Act.

    What are the applicants’ claims?

34. The applicant wife’s claims are set out in her statement, which accompanied her application for protection. Her claims were discussed with the delegate at an interview on 13 April 2015. She gave oral evidence concerning her claims at a Tribunal hearing held on 11 October 2016 and at the hearing before the current Tribunal on 11 April 2019.

35. The applicant husband was joined as a member of the applicant wife’s family unit on 26 September 2014. At the first Tribunal hearing in 2016 he gave evidence regarding his own claims for protection.

36. The applicant wife claims that her family established a house church in [Village 1], Fujian. She claimed that when she was in middle school the police raided the family home and detained her parents and the applicant for a short period. She was expelled from school, her father was arrested and she was forced to abandon her studies. After she arrived in Australia she had difficulty in finding a church group to attend due to the language barrier. In 2014 she started attending the [Church 1], she was baptised and has been regularly attending that church since that time. She claims that she sent sermon materials to her parents and as a result her mother was detained for two weeks and her father is afraid to return to the family home. 

37. The applicant wife claims that she fears serious harm if she returns to China for reasons of her past Christian activities, for sending Christian materials to China and because she is a Christian and if she returns she will continue to practise her Christian faith. The applicant husband claimed that he and his family were Christians in China and that he has been attending the [Church 1] together with his wife. He fears serious harm if he returns to China because he is a Christian.

    Assessment of claims and evidence

    Did the applicant wife’s parents conduct a house church in China and have they been mistreated?

38. The applicant wife claims that her family established a house church in [Village 1], Fujian. She claimed that when she was in middle school the police raided the family home and detained her parents and the applicant for a short period. She was expelled from school, her father was arrested and she was forced to abandon her studies. She claimed that she sent Christian materials to her parents in 2014 and as a result their home was raided and her mother was detained.

39. In the applicant wife’s statement she stated that she grew up in the countryside and all her family members were Christians. She began to attend the house church from an early age.

40. Her parents were founding members of the church and besides holding congregations their home became a gathering place and her parents often went out to preach the gospel. In 2004 and 2005 her parents organised a campaign to raise funds for a new church and the foundations of that church were already finished before it was demolished by government backed security guards. The local government labelled their church as a cult and became hostile towards them.

41. When the applicant wife was in the first year of middle school many people came to the applicant’s home to attend an Easter gathering but village officials arrived and ordered the family to stop the gathering. They kept a record of the names of all the people attending. Later the police found her parents and summoned her for enquiries. Government officials announced their house church was illegal and they should attend the Patriotic Church. From that time on they held their gatherings in secret.

42. When the applicant wife was in the third year of middle school the church invited some foreign priests to give sermons at the church. More people came to listen to the sermons and one day there was more than 30 people attending to hear the sermon. When the priest finished his sermon on that day he began to baptise a number of members but before he had time to baptise them he packed his luggage and left in a hurry. Someone had given the alarm that security guards were arriving on the scene. Those who were not able to leave were locked in a room in the local government township and police came to interrogate them.

43. The applicant wife’s parents were detained for two days and the applicant was detained for one day. From then on her parents never allowed her to attend any church congregations, and her school was cautioned by the police that she must be expelled.

44. When the delegate interviewed the applicant wife she stated that her parents were Christians in China.

45. At the first Tribunal hearing the applicant wife told the Tribunal that her father left the family home in 2014 to avoid adverse attention by Chinese authorities. She claimed he was living away from her mother because of her mother’s role in the church. She stated her father lives by himself at a different place from her siblings and mother. They live apart because they used to be leaders of the church and due to police harassment her father left the family home.

46. The applicant wife gave evidence her father was still involved in the church after he left home. She stated that he holds gatherings at his workplace. The Tribunal questioned this evidence and put it to the applicant if her father continued to hold religious gatherings in his workplace there did not seem any logical reason why he would have left the home because he would still be subject to adverse attention for holding religious gatherings. In effect there was no difference whether they were together or apart; they are all on the same hukou[4]. She stated everyone in her village held these gatherings. The Tribunal put it to her that this suggested there were no problems in holding these types of gatherings. She stated there were problems; her father had been detained by police and left his hometown for another place in 2014-2015. If her father came back and they held gatherings together it would be bad.

    [4] “Hukou” or household registration.

47. The applicant stated that her mother, sisters and occasionally her brother go to her father’s gatherings. She stated that her family’s church was the Christian church and it did not have a specific name. It was a house church. The Tribunal noted country information which indicated that authorities in Fujian had a relaxed attitude to house churches and informal prayer group gatherings.

48. The applicant then referred to the Three Self Patriotic Church and stated that their church was not a registered church. She also discussed the situation of Witness Li, the founder of the Local Church, being arrested. The Tribunal considers that in discussing the Local Church the applicant wife was responding to the first Tribunal’s proposition that there were no religious restrictions in Fujian Province and that the local authorities had a tolerant attitude to unregistered churches.

49. She claimed her father had been arrested twice: once when she was about [age] or [age] years [old], and the second time after she had left for Australia at Easter in 2008. In 2014 she claimed her father went to other places to preach and evangelise. She stated it was not easy for him to continue working as a [Occupation 1] as well as undertaking these activities.

50. She told the Tribunal she had once sent some materials to her mother in China. These consisted of a photograph of her baptism and some preaching materials. When asked to describe the materials she said “just preaching materials”.

51. At the first Tribunal hearing, when asked about whether they could practise their religion at home in a family gathering, the applicant wife told the Tribunal that she and her husband were just at the beginning stage of their beliefs and needed to learn more. The Tribunal put it to her that she claimed that she had been brought up as a Christian and had been a Christian all her life. She stated that they needed to learn the true things.

52. The applicant wife gave evidence at the second Tribunal hearing that her parents established a house church in their village in about 2004-2005. She claimed her parents had raised funds to build a bigger church building but after the building started the local government destroyed the foundations. The church did not have a name; it was a house church. She claimed her parents organised this church and there were often [number range] people meeting at their house for the church gatherings. The church services were held in different people’s house. When it was at their home it was organised by her parents but if it was in other houses, then it was organised by other elders.

53. She stated her sisters and brother continue to attend house church gatherings. When the Tribunal put it to her that it appeared that her siblings do not appear to have been mistreated by authorities, she stated her mother had been ordered not to leave her house and her other family members attended gatherings in other places. Nothing has happened to her brother and sisters.

1. She stated that few people ever attend her mother’s house for gatherings because her mother was arrested in 2014 and detained for half a month. People are now afraid of attending gatherings.

2. She stated when she was in [a certain] year of middle school her father was detained, hit and injured. He went to stay in a neighbouring village and came back to visit from time to time. She agreed that her father stayed on the same hukou as the applicant’s mother. The Tribunal put it to her that her father had not been arrested or detained even though she claimed that he had been holding religious gatherings in his workplace and was spreading the gospel. In these circumstances the Tribunal asked the applicant wife why her father had to leave his home. She stated he was concerned that he would face more penalties if there were gatherings at his home. He was not worried about gatherings at work because they only involved a small number of people and moved from place to place.

3. The Tribunal put it to her that she had claimed in her statement that her father moved out of the family home after the first arrest when she was about [age] or [age] years old. She had then given evidence at the first Tribunal hearing that he moved out of the family home in 2014. She stated that after the first incident in middle school her father moved to a neighbouring village but used to visit the home and then in 2014 he moved elsewhere.

4. The Tribunal put it to her that during the first hearing she claimed her father had been arrested twice, once when she was in middle school and then at Easter 2008. In her statement she claimed he had been arrested only once. At the second Tribunal hearing she stated her father had been arrested once and her mother arrested twice.

5. For reasons set out below, the Tribunal does not accept that the applicant wife’s parents were the organisers or members of a house or family church in [Village 1], China. It does not accept that her parents organised an illegal church gathering and were consequently detained and mistreated when she was in middle school and about [age] years of age. It does not accept that her father left the home to live in a neighbouring village to avoid further scrutiny following that claimed incident. It does not accept the applicant wife was detained for a day.

6. The Tribunal also does not accept that the applicant sent foreign materials to her parents and that they were discovered by Chinese authorities or that her mother was detained for half a month in 2014 and then not allowed to leave the house. The Tribunal does not accept that her father left the family home to avoid surveillance and further penalty.

7. During the first hearing the applicant wife told the Tribunal Member that she could not return to China and practise her religion in a small family setting because she and her husband were at the beginning stage of their beliefs and needed to learn more. As discussed with the applicant wife, this evidence did not appear to be consistent with her evidence that her parents were organisers of a house church in [Village 1], that she had grown up in a Christian family with Christian beliefs and practices and was a devout Christian.

8. There were a number of inconsistencies in the evidence she gave in her statement and to the Tribunal. In her statement she claimed her father had been arrested and detained on one occasion when she was [age] or [age] years old in middle school, whereas in the first Tribunal hearing she claimed he had been arrested twice: once when she was [age] or [age] years old in [school] and once around Easter 2008. At the second Tribunal hearing she claimed he had only been arrested once.

9. In her statement she claimed that after her father was arrested he was under constant surveillance and had to flee his hometown and make his living in other places. In the first Tribunal hearing she stated that her father left the family home in 2014 but when the inconsistency was pointed out she stated that after his arrest her father moved to another place but secretly came back to visit and then he moved elsewhere in 2014. In the second hearing she stated that her father went to live in a neighbouring village after his arrest but came home from time to time. After 2014 he went elsewhere. The Tribunal considers the evidence regarding his residence is not consistent and the Tribunal does not accept the applicant wife’s explanation.

10. Further, as pointed out to the applicant at the first and second Tribunal hearings, she could not satisfactorily explain why her father felt that he needed to leave the household for reasons of his religious practice. If he was working as a [Occupation 1] in the local area and visiting his family home from time to time he would be subject to the same level of scrutiny as if he were living at the family home. In the applicant wife’s statement she stated that her father was away preaching the gospel when her mother was arrested in 2014. During the first hearing the applicant wife also gave evidence that he was preaching at his place of work. The Tribunal pointed out that this conduct was not consistent with the claim that he left the family home because was trying to avoid adverse attention from authorities due to his Christian activities. When this was put to her at the second hearing she claimed that her father’s tiling work took him from place to place and he just discussed his Christian beliefs with his fellow workers; usually just one or two workmates who also shared his beliefs. Overall the applicant wife’s evidence on her father’s situation was contradictory and confused. 

11. In the applicant’s statement she claimed that she sent her parents’ pictures of her baptism ceremony, sermon materials, and tapes of sermons and that her parents kept these materials at home and made hundreds of copies. At the first Tribunal hearing the applicant told the Tribunal she sent a baptism photograph and some preaching materials to her mother. When asked to describe the materials she stated they were “just preaching materials” and could give no further detail. The Tribunal does not accept that the applicant sent her parents baptism photographs or preaching materials and does not accept her parents made hundreds of copies which were discovered by police. She was unable to adequately describe the nature of the preaching materials and the evidence that her parents kept this material at home and made hundreds of copies was not consistent with the evidence that her father moved to a neighbouring village and only visited the family home secretly from time to time up until 2014.

12. The applicant was questioned at the first and second Tribunal hearings about her evidence that her father left the family home in [Village 1] when she was [age] or [age] years old after he was detained to avoid adverse attention from authorities due to his Christian activities, but she could not explain how this could protect him from further harm if he continued to engage in Christian activities such as preaching and spreading the gospel in the local area and at his workplace. County information indicates that when persons are detained at illegal underground church meetings their details are entered into a database which is accessible by all officers in the Chinese security apparatus[5]. Further, Policenet is a system “where public security officials can search out any Chinese citizen's photograph, work history, family background, political leanings, Internet history, and at least 60 days of emails. Carrying it around is also convenient: police just scan an individual's identification card and query the database on the spot, obtaining all the information about the individual they need”[6]. The Tribunal considers that if the applicant’s father had been detained as claimed he would have been monitored closely and would not have been able to engage in preaching and other restricted activities.

    [5] China: Whether a person detained at an underground church meeting would have his or her name placed in the Public Security Bureau (PSB) databases; Research Directorate, Immigration and Refugee Board of Canada, Ottawa; CHN105283.E 23 September 2015.

    [6] China: The Public Security Bureau (PSB) Golden Shield Project, including implementation and effectiveness; Policenet, including areas of operation; level and effectiveness of information sharing by the authorities (2010-February 2014): Research Directorate, Immigration and Refugee Board of Canada, Ottawa CHN104762.E 7 March 2014.

13. The applicant wife’s claims that her mother was detained and was unable to leave the house after Easter 2014 is not consistent with her evidence that house church gatherings continue to take place and that her siblings continue to attend a house church. The applicant wife’s evidence on whether her mother continues to hold church gatherings was confused and inconsistent. She stated that her mother continued her church activities but did not have many attendees as they were too afraid to attend following the 2014 detention. She also stated her siblings attended the house church but when questioned further stated they attend church in other places. If the applicant wife’s mother had been detained in 2014 the Tribunal considers that her siblings would also have been monitored and prevented from attending an illegal house church.

14. Taking all of the above into account the Tribunal does not accept the applicant wife’s evidence that she, her parents or any of her family members were, or are, members of an illegal house church or that they have been detained and mistreated by Chinese authorities for reasons of their underground Christian activities in Fujian Province. While the Tribunal accepts that the applicant’s father may not be currently living in or near the village of [Village 1], it does not accept that he has left the family home to avoid serious harm from Chinese authorities.

    Did the applicant husband’s parents and family members attend a house church in China?

15. The applicant husband initially joined his wife’s application for protection as a member of her family unit in September 2014. At the time the delegate’s decision was made, the applicant husband had not made any claims of his own to be entitled to protection.

16. At the first Tribunal hearing the applicant husband claimed that he attended church in Australia. He also claimed that when he lived in Fujian he went to his uncle’s place because his uncle had Christian gatherings at his home. He agreed that he had not initially made any claims of his own because he was included in his wife’s protection visa application.

17. When asked why he had not made any statements or set out any claims of his own he stated he was scared when he was young.

18. He claimed that all the people near his uncle’s home attended gatherings in his uncle’s house. Both of his parents attended that gathering and something very bad happened. His mother was injured and suffered mental disease. He was scared after that incident so did not go to any further gatherings. He was about [age] to [age] years old at the time this happened. He claimed he and his cousin spent the time playing while the adults talked about the Bible. He said that his uncle attended church gatherings and something happened and he went elsewhere. He later passed away.

19. At the second Tribunal hearing the applicant husband claimed that his parents attended church gatherings and were persecuted for spreading the gospel. His mother was hit on the head and suffered psychological harm as a result of the mistreatment. The Tribunal asked him why he had not made claims for protection or mentioned his parents’ situation before he made these claims to the Tribunal in October 2016. He stated he did not know he could lodge a protection visa application until he met his wife. The Tribunal pointed out that when he made his application in 2014 he did not mention anything about his own claims at that time. He stated that they did not ask him about this. When he applied he did not say anything about a fear of return to China and could not explain why he did not mention his concerns at that time.

20. The Tribunal does not accept the applicant husband’s claims that his parents attended a house church in China and that they were persecuted as a result of their attendance. His evidence was extremely vague and lacked any plausible detail. Further he did not take any steps to include his own claims for protection when he applied for protection as a member of his wife’s family unit in 2014 and only mentioned these matters when questioned at the first Tribunal hearing.

    Have the applicants attended a Christian church in Australia?

21. The applicant wife claims that she has attended Christian churches in Australia and later became a member of [Church 1] in [Suburb 1]. She had previously attended another Christian church but found there was a language barrier.

22. The applicant gave evidence at the first Tribunal hearing that she had attended a Cantonese speaking church and had language difficulties so could not continue. She now attends the Christian Church in [Suburb 1]. When asked the name or denomination she stated it was just the Christian Church and it is a Bible based church. She showed the Tribunal a newsletter of [Church 1] - [Suburb 1]. She stated she started attending this church at the end of 2013, some months before she applied for a protection visa. She was baptised in 2014.

23. The Tribunal questioned why it had taken such a long time to find a Mandarin speaking Christian church. She stated she went to another Mandarin speaking church but it was different to her religion.

24. The Tribunal noted that in her statement she claimed that in 2007 she tried going to a few churches but due to a language barrier could not hold out until the end. She had also stated that a fellow churchgoer was detained and sent back to China. As a result of this incident she was shocked and dared not go to any churches and went into hiding in the countryside. When questioned about this statement she did not elaborate or explain it but speculated that the detained person might have had other issues.

25. The applicant answered a few questions about her religious beliefs and it appeared she had a basic knowledge of important Christian dates and some Christian religious beliefs and practices.

26. She stated that she attended church each Sunday and also attends a Saturday evening gathering to study the Bible. She stated she seldom has contact with Christians in China and did not often talk to other churchgoers at [Suburb 1].

27. The applicant wife stated that her daughter has not been baptised because she is too young and in her church they wait until the child can choose baptism. She stated it is not like the Catholic Church.

28. The applicant wife’s evidence at the second Tribunal hearing is that she attended a few churches when she first arrived in Australia but did not become a regular churchgoer until she joined the [Church 1]. She claims she went to a church in [Suburb 1] three to four times and then went to a church where the services were delivered in Cantonese. She stopped going to this church as she did not understand the Cantonese language.

29. She claimed that she started attending the [Church 1] at the end of 2013 and was baptised in 2014. The Tribunal put it to her that it might appear from the timing of her attendance and baptism she had only started attending church to strengthen her claims for a protection visa. She stated she had attended churches before she made her application for protection but the Tribunal noted she had no lasting contacts with these churches.

30. She stated that she has no written evidence of her baptism or membership of the church as the church’s policy is not to provide these documents. She stated there are three elders of the church and some deacons who know her. She referred to letters from two fellow church goers which confirm her ongoing attendance at the church. One of the church goers, Ms [A], no longer attends the church. She stated that the church is a Protestant church and as far as she is aware the church elders travel back to China from time to time.

31. The applicant wife gave evidence that she regularly attends Sunday services and has friends from the church; she also attended a Bible study group until May 2015 and currently attends a church pre-school and mothers’ group. She stated she also attended a retreat. She stated that her husband attends church but not as regularly as her because he works elsewhere.

32. The applicant husband gave evidence at the first Tribunal hearing that after he arrived in Australia he attended a Christian church in 2008 but was not a regular churchgoer because he needed to work to earn money. He claimed that he started attending regularly in 2009 but did not apply for protection because he did not know anything about protection visas. It was put to him that he was able to find a job and a church and the Tribunal questioned why he had not been able to make enquiries about protection visas.  He claimed he did not know anything and his English was poor and he did not know anyone. He claimed he was baptised in 2009.

33. The applicant husband gave evidence at the second Tribunal hearing that he now attends [Church 1] – [Suburb 1].

34. He claimed he started going to church in April 2008. He claimed that he used to attend a family church in [Suburb 2] but was not sure of the official name. He went to the church every week for the first year. The church moved to [Suburb 1] sometime later but he does not know the name of the church. There is no official name it is just [name deleted].

35. The Tribunal asked him how long he had been attending his wife’s church after they first met. He stated that on Friday night his wife attends mothers’ group, on Saturday she attends Bible study and they both attend the Sunday services. The Tribunal repeated its question regarding when he first started attending his wife’s church. He claimed that they belonged to the same church which had moved from [Suburb 2] to [Suburb 1]. The Tribunal put it to him that his evidence was that they first met in person in June/July 2014. He stated they met online and they both started to go to the same church in 2014.

36. The applicant husband stated that sometimes he works in Sydney and sometimes [elsewhere]. If he returns home on Saturday he goes to church on Sunday.

37. The Tribunal asked the applicant wife if she had any comments to make on the matters of concern raised in the previous Tribunal hearing.

38. She stated that her church does not provide letters for proof of attendance. She has provided a newsletter which sets out the telephone numbers of people involved in the church. She noted that the delegate called a person at the church but she understood that the delegate did not consider that his evidence was good enough. She had provided a letter from a fellow church goer who had been baptised at the same time as the applicant but she has since opened a shop and does not attend church anymore.

39. She stated if she wanted to get evidence of attendance at church she could have gone to [Church 2] where they routinely give letters to churchgoers.

40. With respect to the first Tribunal’s comment that her family have a reasonable amount of money, she explained that her family did not have a large amount of money. The family had to borrow a large amount for her travel and education expenses and the reason she did not go back to China was because she had to work to pay that money back. While her parents paid the social compensation fees for all the out of plan children they were not wealthy.

41. Both the delegate and the first Tribunal Member questioned the applicant wife about her sexual relationship with the applicant husband before they married. She told the delegate she did not realise that a sexual relationship prior to marriage was contrary to church doctrine until the witnesses at her wedding mentioned it to her.

42. She gave evidence at the first Tribunal hearing that she and her husband were first introduced [by] a mutual friend of their families. She stated their parents knew they were engaged and approved of the match and would not have considered it sinful to have a sexual relationship before marriage.

1. At the second Tribunal hearing the applicant wife stated that they were introduced through their respective families, they agreed to stay together and had an engagement ceremony so they did not consider having a sexual relationship to be a sin. She is aware of Christian teachings about pre-marital sex but they found it difficult to organise their marriage. They tried to get a marriage certificate in China but that was not possible. For an Australian marriage certificate they needed a sponsor and two witnesses but did not have suitable candidates and they were very sorry to God that they could not easily get a marriage certificate and did not know how to get a certificate and had committed a sin. In the beginning they did not know they could pay someone to get witnesses. In the end they asked the brothers and sisters of the church to be witnesses, and asked if there was any pastor who could marry them. Another [Church] pastor from [another suburb] could preside so they went to room in the church and he presided over their marriage. The brothers and sisters told them to pray to God and ask him to bless them.

2. The Tribunal finds that the applicant wife has been living in Australia since 2007 and the applicant husband since 2008. They both claim they were Christians in China and attended churches in Sydney not long after they arrived in Australia, however, the Tribunal does not accept this evidence.

3. The applicant wife’s evidence is that she attended a few different churches in the six to seven years before she joined [Church 1] in [Suburb 1] but she has not provided any supporting evidence of such attendances and she was not able to provide names or specific details of the churches or her level of contact. She also claimed in her initial statement that she was afraid to attend church because a fellow churchgoer was detained and removed from Australia but did not proffer this as a reason for her lack of regular attendance at church when questioned by the Tribunal.

4. The Tribunal accepts that after the applicant wife’s student visa expired she may have made some enquiries about churches in Sydney and followed up with visits but it does not accept that she identified as a Christian or that she sought to attend church to follow any Christian religious beliefs. He student visa expired in 2010 and she gave evidence at the first Tribunal hearing that she had made enquiries about protection visas with a migration agent in 2011 but did not take any steps to apply for a protection visa because she was told the success rate was low.

100.   The applicant wife gave evidence, which the Tribunal accepts, that she first attended the [Church 1] [Suburb 1] late in 2013 and was baptised in 2014. She gave evidence at the first Tribunal hearing that she and her husband were at the beginning stage of their beliefs and she was able to answer some basic questions about the religious beliefs of the [Church]. She provided a letter from a fellow churchgoer which stated that they had both been baptised [in] January 2014. The delegate’s decision, which was provided to the Tribunal, noted that the delegate spoke to a member of the [Church 1] who stated that it was his opinion that the applicant had become a Christian not long before she started attending [Church 1] - [Suburb 1].

101.   The applicant wife gave evidence at the second Tribunal hearing, which the Tribunal accepts, that she not only attends Sunday services but also a mothers’ group and that her daughter attends a pre-school group at the [Church]. The applicant wife was able to describe the nature of the church services and what took place during those services. She also provided a letter from another churchgoer who stated that she observed the applicant wife at church meetings and they attend the mothers’ group together each month. She noted that their children attend Sunday school together. The Tribunal accepts that the applicant wife has continued to attend [Church 1] - [Suburb 1] and that she regards herself as member of that congregation.

102.   Notwithstanding this finding, the Tribunal does not accept a number of the claims made in the applicant wife’s initial statement. It does not accept that she is engaged in preaching or proselytising activities for the church and it does not accept that she has converted 20 people or has aspirations to become a priest. She could not provide any details of preaching activities when questioned by the Tribunal and was not able to give any plausible detail regarding the conversion of persons in Sydney. She did not give any evidence to the Tribunal about her aspirations to be a priest.

103.   The applicant husband did not make his own claim for protection until he was questioned at the first Tribunal hearing. The evidence he gave regarding his claimed baptism and attendance at church was vague and contradictory. He did not know the name of the church he claimed he was attending each week from 2008 and appeared confused about whether it was the same church attended by his wife. The applicant husband provided a letter from a person who claimed to have attended [Church 1] [Suburb 2] with the applicant from April 2008, which stated they were baptised in May 2008. After one year the author of the letter moved [away]. The applicant also provided a bookmark he claimed to have received on baptism. However there is no evidence that the [Church 1] moved from [Suburb 2] to [Suburb 1]. If it had moved after 2008 the Tribunal would have expected the applicant husband to be able to provide some details about the move and when it took place. The applicant husband appeared to be perplexed when asked to provide further details and the Tribunal formed the view that he had briefly rehearsed the evidence he planned to give but could not provide the level of detail which would be expected from a person who had been a longstanding member of a church group.

104.   The evidence of the couple, which the Tribunal accepts, is that they met in 2014 and married in 2015. There is no evidence or claim that they met at church prior to their introduction through their respective families. The claim that they met in 2014 through the introduction of family members is not consistent with the applicant husband’s evidence that he was a longstanding member of the [Church 1] which moved from [Suburb 2] to [Suburb 1] at some unspecified time.

105.   The Tribunal does not accept that the applicant husband was a member of a Christian church after his arrival in Australia in 2008. It accepts he may have attended a church in Sydney on a few occasions but there is no evidence of longstanding membership.

106.   It accepts that since being introduced to his wife he has attended [Church 1] – [Suburb 1] from time to time from 2014 and that he and his wife married at [Church 1] in 2015. The applicant wife stated that the applicant husband cannot always attend church if he is working outside Sydney and he was fairly vague when asked about the regularity of his attendance. There is no other supporting evidence showing his regular attendance at [Church 1].

107.   The Tribunal does not accept that the applicant husband is a longstanding or committed Christian.

Will the applicants seek to attend a Christian church if they return to China?

108.   The Tribunal accepts that the applicant wife has regularly attended [Church 1] – [Suburb 1] since late 2013. The evidence indicates that she interrupted her attendance at church when she was pregnant and following the birth of her daughter.

109.   For reasons set out above, the Tribunal has found that the applicant wife was not a Christian in China and did not commence any regular attendance at church services in Australia until late 2013. It has found that she began her Christian practice at the time she first went to [Church 1].

110.   The applicant wife told the Tribunal that she made enquiries about protection visas in 2011 after her student visa expired. She also gave evidence that she was aware that if she had attended [Church 2] she would have been able to obtain a letter which would have confirmed attendance at church. This indicates that despite her evidence that she did not know much about protection visas, the applicant wife was from 2011 seeking to find a way of remaining in Australia by adopting Christian practices and learning about Christian beliefs.

111.   The Tribunal considers that the applicant wife has a basic understanding of her church’s beliefs and has been regularly attending, subject to some interruptions, for the last five and half years. Given the circumstances in which she first started attending church, the Tribunal is unable to make a finding that the applicant is a committed Christian who will seek to continue her Christian practices if she returns to China. However, it has considered that the applicant may wish to continue her Christian practice if she returns to China on the basis of her continued attendance at church for the last five and half years and her evident interest and participation. Such participation in Australia may have a mainly social element rather than a religious element, but the Tribunal accepts she may have a genuine religious interest in continuing her participation in China and has assessed the claims on that basis.

112.   While the Tribunal considers that the applicants first attended [Church 1] - [Suburb 1] for the purpose of strengthening their claims the Tribunal has not disregarded the conduct of the applicant wife or the husband as it considers there may now be a variety of reasons for their continued attendance at the church.

What is the situation for Christians in Fujian Province?

113.   As put to the applicants at both Tribunal hearings, there are very few reports of Christians being harmed in Fujian Province and Fujian authorities have a liberal attitude to unregistered Christian churches. 

114.   The most recent Department of Foreign Affairs (DFAT) report on China[7] notes that:

[7] DFAT Country Information Report People’s Republic of China, 21 December 2017.

3.15 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.

3.16 It is difficult to provide exact figures on the number of religious believers in China. Chinese government statistics record approximately 100 million religious believers in total, including over 23 million Protestants, six million Catholics, and over 22 million Muslims. Approximately 5,500 religious groups, nearly one hundred religion-affiliated academic institutions and as many as 140,000 registered places of religious activity are officially recognised. The Chinese government recognises 360,000 registered clergy.

3.17 It is difficult to provide exact figures on the number of religious believers in China. Chinese government statistics record approximately 100 million religious believers in total, including over 23 million Protestants, six million Catholics, and over 22 million Muslims. Approximately 5,500 religious groups, nearly one hundred religion-affiliated academic institutions and as many as 140,000 registered places of religious activity are officially recognised. The Chinese government recognises 360,000 registered clergy.

115. The report notes that the Constitution provides for freedom of religious belief but in practise religion is subject to government restriction. Religious adherents may proselytise in registered places of worship and in private settings but not in public. Foreign donations are prohibited. In April 2017 President Xi Jinping emphasised the need to “sinicise” religion and the religious regulations were revised to prevent illegal behaviour including undue influence from foreign organisations.

116.   The report notes that:

3.24 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. Restrictions on religious organisations vary widely according to local conditions, making it difficult to generalise. Those who practise their faith in unregistered institutions are more vulnerable to adverse official attention than those in registered institutions.

117.   With respect to Christian denominations the report notes that:

3.37 In addition to the state-sanctioned Catholic and (non-denominational) Protestant churches in China, SARA permits 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. Known as ‘house’ or ‘family’ churches (for Protestant organisations), and ‘underground’ churches (for Catholic organisations) these bodies 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. Some churches deliberately restrict their numbers to avoid attracting adverse official attention. Government officials are more likely to scrutinize churches with foreign affiliations, or those that develop large or influential local networks, and house churches are under pressure to ‘sinicise’ their religious teaching.

118.   The report notes that groups designated as “cults” are subject to restrictions and criminal sanctions. There are several banned groups including Falun Gong and some other Christian groups.

119.   In the United Kingdom’s country guidance case QH (Christians - risk) China CG [2014] UKUT 00086 (IAC) (14 March 2014) the Upper Tribunal found that in general the risk of persecution for Christians expressing and living their faith in China is very low, indeed statistically virtually negligible. The evidence does not support a finding that there is a consistent pattern of persecution, serious harm, or other breach of fundamental human rights for unregistered churches or their worshippers.

120.   The Upper Tribunal found that there were certain prominent individuals who challenged, or were perceived to challenge, public order or the religious regulations who may be at risk of persecution or serious harm or ill treatment.

121.   With respect to the situation for Christians in Fujian, various sources have consistently reported that restrictions in Fujian are more relaxed compared to other provinces. DFAT[8] states that, in general, ‘individuals in Fujian can practise religion within state-sanctioned boundaries, as long as such practices do not challenge the interests or authority of the Chinese Communist Party [CCP].’ DFAT further advises that the CCP is ‘largely indifferent’ to individual religious practice (although Party members are not permitted to follow any faith), but it does obstruct religious practice at an organisational level.

[8] DFAT Thematic Report Fujian Province, 16 December 2016.

122.   DFAT also states that its in-country contacts question the ‘validity of the “registered” and “unregistered” dichotomy, pointing out that members of a congregation will often move between the two.’ The treatment of unregistered churches varies greatly in Fujian (and across China), depending on the attitude of local authorities. In general, sources indicate that Fujian authorities tolerate unregistered churches who meet in small congregations.

123.   Current reporting on the situation for Christians in China suggests that there are increased restrictions on Christian practice which involve strengthening controls on places of worship, travel for religious purposes and children’s religious education.  A recent journal article[9] states that underground Protestant churches typically maintain a low profile, avoid discussing politics during sermons, and share information about their activities with public security officials upon their request. This form of defiant compliance has helped reassure local authorities that house churches are not a threat to political stability even though they oppose the central state’s co-optation of religious organisations.

[9] Compliant Defiance: Informality and Survival Among Protestant House Churches in China, Journal of Contemporary China, 29 January 2018, M-E Reny, Vol.27, Iss.111, CIS7B839419590, p. 474.

Does either of the applicants meet the refugee criterion?

124.   Taking into account the findings set out above and the country information referred to in this decision, and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicants return to China now or in the foreseeable future either the applicant wife or husband faces a real chance of persecution for reasons of their religion or imputed political opinion.

125.   For reasons set out above the Tribunal does not accept that the applicant wife or husband or their respective family members were members of a house church or an underground Christian group in China. It does not accept that they, or their family members, suffered any detention, questioning or mistreatment for reasons of being a Christian, a member of a house church or an underground Christian group in China.

126.   The Tribunal also considers that the applicant wife’s delay in applying for protection is not consistent with her claim that she feared harm in China for reasons of her and her family’s previous Christian activities and consequential mistreatment.

127.   The Tribunal considers that the applicant husband’s delay in making his own claims for protection is also not consistent with his claim that his family were mistreated in China and he fears returning for that reason.

128.   The applicant wife arrived in Australia as the holder of a student visa which expired in March 2010. She did not hold a visa from March 2010 until she applied for a protection visa in 2014 and obtained an associated bridging visa. She gave evidence that she made enquiries about protection visas in 2011. Despite not holding a valid visa for at least four years and claiming that she feared serious harm if she returned to China, the applicant wife delayed making an application for protection until 2014.

129.   The Tribunal does not accept that the reason she failed to make an application for protection until 2014 was either because she did not know about protection visas or that she was afraid to make an application. She has given evidence that she was aware of protection visas in at least 2011. She has also demonstrated her resourcefulness in finding accommodation, finding work and obtaining pre-natal medical treatment and medical and audiological treatment for her daughter. She also gave evidence that she read the Chinese language newspapers in Sydney and also worked in a number of different occupations.

130.   The applicant husband did not satisfactorily explain why he delayed making his own claims for protection until questioned at a Tribunal hearing in 2016. He had been in Australia since 2008 and met his wife in 2014. Even when he was joined as a family applicant in his wife’s visa application he did not submit any claims of his own at that time.

131.   The Tribunal has found that the applicant wife has been a regular member of [Church 1] – [Suburb 1] congregation since 2013. It has considered the situation for the applicant wife if she does return to China and seeks to participate in Christian activities

132.   The Tribunal, differently constituted, put it to the applicant wife that if she returned to live in Fujian Province she would not face serious harm for reasons of being a Christian and continuing to attend church.

133.   The Tribunal considers that if the applicant returned to China and wished to continue her Christian practice she could join an authorised church in Fujian and continue her Christian practice within state sanctioned boundaries. The applicant claimed that she would not attend an authorised church if she returned to China, but when asked what differences there were between the authorised Protestant churches and the unregistered house churches she could only give a very vague response. It appeared to the Tribunal that she did not know how the two churches differed in doctrine or practice and the Tribunal does not accept that she has any identified any plausible reason for not attending an authorised church.

134.   The Tribunal accepts that the applicant husband has attended [Church 1] – [Suburb 1] from time to time but does not consider that his practice has been as regular as the applicant wife. The Tribunal put to the applicant that if he returned to China he could attend an authorised church in Fujian Province. He was not able to explain why he would not be able to do so and the Tribunal considers if he returned to China and wished to attend church he could attend an authorised church and there would be no reason why he could not do so.

135.   However, even if the Tribunal were to accept that the applicants had reasons for preferring an unregistered church the country information indicates that, despite restrictions on practice, for an ordinary church goer, attendance at a small unregistered family church in Fujian would not put either applicant at risk of serious harm. There is no evidence that the applicants are prominent religious leaders or members of the clergy and the Tribunal does not accept that they would proselytise or engage in activities which would challenge the state authorities.

136.   As set out above, the Tribunal does not accept that the applicant wife or husband have faced mistreatment for reasons of their religion in the past. The Tribunal is not satisfied that if returned to, or removed from Australia to China, either applicant will face a real chance of persecution for reasons of religion or for any other Convention related reason.

Does either of the applicants meet the complementary protection criterion?

137.   Having found that the applicants do not meet the refugee criterion, the Tribunal has considered whether on the evidence before it, there is a real risk either applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to China.

138.   For reasons set out above, and in greater detail, the Tribunal does not accept that the applicants were Christians in China, or that they were involved in any Christian group in China or that they were of any adverse interest to Chinese authorities for this reason.

139.   The Tribunal accepts that the applicant wife has regularly attended [Church 1] in [Suburb 1] and the husband has also attended from time to time. It accepts that they have attended Christian services, activities and church social occasions since late 2013. Whilst the applicants’ original motivation may have been to support and strengthen their refugee claims, the Tribunal accepts that the applicants have become regular members of the congregation and there may be other reasons for their continued attendance.

140.   If the applicants return to China the Tribunal considers they will return to Fujian Province, either to the applicant wife’s home district or the husband’s.

141.   The Tribunal has considered the situation for Christian returnees to China. As discussed with the applicant at hearing, the country information indicates that China has “a rich and complex society of faiths, belief systems and organised religious groups.” The number of religious believers is estimated to be between 70 to 100 million.[10]

[10] DFAT Country Information Report People’s Republic of China, 21 December 2017.

142.   The Tribunal has considered whether the applicants will face harm as a result of their involvement with [Church 1] - [Suburb 1]. The evidence indicates that the church is a relatively conventional Protestant Church in Sydney which has a large Chinese speaking congregation. There is no evidence it is designated as an illegal cult or prohibited organisation.

143.   DFAT reports it is not aware of any evidence that failed asylum seekers returning to Fujian would be distinguishable from the broader community or susceptible to any form of discrimination or violence unless they were perceived to have openly expressed dissenting political views or criticised the Chinese Communist Party.[11]

[11] DFAT Thematic Report Fujian Province, 16 December 2016, p 5.7.

144.   There is no evidence or country information which indicates the applicants would face significant harm on return to China for reasons of their attendance at a Christian church in Australia.  The Tribunal finds that the applicants would not face significant harm for this reason.

145.   The Tribunal accepts that the applicants may seek to join a Christian church group in Fujian Province and if they do so then the Tribunal has considered whether they will face significant harm for this reason. If the applicants attend an authorised church the Tribunal considers that they will not face a real risk of significant harm.

146.   As set out earlier in this decision the country information indicates that DFAT notes that should an unregistered church or individual engage in active and public proselytising or be perceived to criticise the Chinese Communist Party or the religious regulations, they may be exposed to negative attention by authorities. However there is no evidence that the applicants would engage in such activities.

147.   While the Tribunal accepts that the practice of the Christian religion is regulated and subject to state control it considers that the applicants will be able to attend church and practise their religion if they should choose to do so on returning to China. In Fujian the country information indicates that both the registered and to a lesser extent, the unregistered house churches are generally tolerated by local government officials and the applicant could attend those churches on their return.

148.   Having considered the applicants’ circumstances singularly, and on a cumulative basis, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable of consequence of the applicants being removed from Australia to China, there is a real risk they will be arbitrarily deprived of life or suffer the death penalty, or be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.

Conclusion

149.   For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

DECISION

150.   The Tribunal affirms the decision not to grant the applicants protection visas.

Louise Nicholls
Senior Member

ATTACHMENT A

RELEVANT LAW

151. 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, the applicant 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.

Refugee criterion

152.   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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

153.   Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

154.   Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

155.   There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

156.   Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

157.   Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

158.   Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

159.   Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

160.   In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

161.   Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

Complementary protection criterion

162.   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 a protection 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 the applicant 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’).

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

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

Section 499 Ministerial Direction

165.   In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment 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.

Member of the same family unit

166.   Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include spouses.