1805282 (Refugee)

1805282 (Refugee) [2021] AATA 247 (11 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1805282
COUNTRY OF REFERENCE:                   China
MEMBER:Elizabeth Tueno
DATE:11 January 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 January 2021 at 3:43pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Christian – perceived Falun Gong practitioner – protested the demolition of church building – petitioned to local government – detained and interrogated for three days – credibility concerns – limited knowledge of the Christian faith – inconclusive photographic evidence – inconsistencies in evidence – left country legally on passport – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 February 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant arrived in Australia [in] July 2017 on a visitor visa, which was granted on 26 June 2017. This visa remained valid [until] October 2017.
The applicant who claims to be a citizen of China, applied for the protection visa on 6 September 2017. The delegate refused to grant the visa on the basis that she is not a refugee or a person in respect of whom Australia has protection obligations. The delegate was not satisfied that the applicant was a practicing Christian. They were also not satisfied that the applicant had been arrested due to her Christian belief.
The applicant applied for review of the delegate’s decision on 28 February 2018. The applicant was not represented by a migration agent for the review.
A hearing was conducted on 7 December 2020 by way of video hearing due to the Covid-19 restrictions. The applicant had difficulty connecting by video and therefore the hearing proceeded by way of telephone hearing instead. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
The criterion in s.5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s.5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. 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: Chan Yee Kin v MIEA (1989) 169 CLR 379.
If the 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.
‘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.
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 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this case are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J of the Act in China and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that they will suffer significant harm.
The applicant claims that she has a well-founded fear of being persecuted in China because she is a Christian and that if she is returned to China there is a real chance she will suffer serious harm by the authorities by reason that she is a Christian.
In reaching its findings, the Tribunal has had regard to all of the evidence before it, including the oral evidence of the applicant provided at the hearing, the contents of Department’s file as well as independent country information about China, including country information provided by the applicant.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of Reference
The applicant claims to be a citizen of the People’s Republic of China. A copy of the applicant’s passport was provided to the Department and to the Tribunal. The applicant’s passport indicate she was born in Sichuan Province in the People’s Republic of China on [date].
Accordingly, the Tribunal accepts and finds that the applicant is a Chinese citizen. There is no evidence to suggest that she has a right to enter and reside, whether temporarily or permanently, in any other country. At the hearing, she denied being a citizen of any other country. Accordingly, the applicant’s protection claims will be assessed against the People’s Republic of China as the country of reference and as the 'receiving country'.
Claims made by the applicant
In her protection application provided to the Department, the applicant made the following claims:
·Her mother, brother and sister still live in Sichuan, China. She does not contact them and has had no information about them since 2015.
·She travelled to [Country 1] in 2008 to study, work and to become a Christian. She said in China, the government restricts Christian activities but in [Country 1] most people believe in Christianity and she wanted to find a peaceful place to understand “what is God”.
·She wrote to the Australian embassy in Beijing asking for protection. She was given advice to apply for a subclass 600 tourist visa to enter Australia and then she could apply for a protection visa. She has not applied for protection in any other country.
·She has previously been in immigration detention in [Country 1] from [date] to [date] September 2015.
·Between 1 November and 1 July 2017 she was self-employed as a [Occupation 1] for a factory and for [Business 1] in Chengdu.
·As a Christian leader in China, she has no freedom. Being a Christian in China, the risks are huge but she is a faithful believer and is not backing down, “we are being more discreet”. Christians have started worshipping in underground churches, which is a well-known and open secret among Chinese Christians. Local police regard them as illegal and “always” arranged for her to talk and would threaten her to give up her faith.
·Christians are persecuted in the Sichuan province and there was a widespread crackdown on so called cult activities which has led to an increase in worship in underground churches over traditional churches.
·There has been an increase in religious practitioners being persecuted, with the number of individual cases reaching close to (or more than) 1000 religious adherents.
·She has no rights.
·She joined the Sichuan branch of [an] organisation in January 2016 which provides “leadership and rule of law training for Christian and church leaders in China to defend their rights under both Chinese constitutional law and international law” which meant she got a lot of information and evidence about the persecution in Sichuan as a result of the Government sanctioned ‘Three Rectifications and One Demolition’ campaign, which targeted house churched and government registered ‘Three Self Patriotic Movement’ churches (TSPM).
·The Chinese government has taken aggressive steps to contain growth including rezoning and demolishing churches. This campaign “indiscriminately” removed and demolished crosses on church building and often demolished entire church buildings.
·She said her local church in Chengdu suffered the forced demolition and relocation [in] April 2016. They received no legal advice, no legal notice or any “commitment”. She protested this and appealed to local government, but local police arrested her.
·She has suffered abuse and fear as a result of being a Christian leader. She was “always” arranged by the local police department called “Stability Maintenance Office” to talk to police.
·[In] April 2016, she was arrested because of the protest. She was detained for questioning for three days without food except water. When asked for the toilet, she said the policeman “touched my secret parts to check if I was wet and will give me a bowl to let me release”. The police have confiscated her bibles and thrown them in the rubbish bin, which occurred [in] April 2016.
·She said the heightened persecution is attributed to President Xi’s political reforms, which is a guise to persecute religious communities, non-government organizations, human rights lawyers, and other religious and political dissenters. Under the TSPM, the Chinese Government has engaged in harassment, abuse, arrests and sentenced pastors and church members to prison. That there has been at least a 150% increase in the number of abuses against Christian followers over the last decade in 2016.
·She has been monitored by police during covert gatherings of a dozen Christians in an old apartment building every Friday when they met to read the bible, pray and sing Christian songs.
·She is looking for a peaceful, safe country with freedom.
·She has suffered four types of harm:
oShe has been questioned by local police;
oBeing threatened and persecuted;
oHer church was destroyed, she was beaten by police and jailed for three days; and
oShe was abused by police for believing in God, not the Chinese Communist Party.
·The Chinese Communist Party is responsible for the harm, who lead the police.
·She appealed to the Chengdu Xingu District People Government but there was no feedback. She also went to Chengdu City People Government to appeal. They offered a new place to build a Church, but the Government rejected this and told them it was an illegal Christian building.
·She continued to be monitored by police. She has been warned if against appealing and that she will be put in jail again. She said her name has been listed in the police network as a Christian and that she should be suspected or monitored. Historical Christian communities and non-traditional protestant Christian communities are monitored and limited in their freedom of religion.
·She has no place to live as a Christian in China and has to attend underground churches despite the risk of persecution.
·If she returns to China, she will be accused of being in a cult and sent to labour camps or mental hospitals or prison. She is unable to relocate within China because there is nowhere safe to be a Christian.
·The policeman who arrested her is named [Mr A], and he will track her down and harm her again and again. Because she has run away, she has written lots of letters to the Chinese Government to reveal his “convicts”, but the government still regards her as the enemy.
Department interview
The applicant attended an interview with the Department on 1 February 2018. During the interview, the applicant made the following claims:
·She went to [Country 1 in] December 2008 and returned to China [in] October 2014. During that time, she returned to China once every two years. She is a Christian.
·She married [in] February 2015
·She has been supporting herself here [as an Occupation 2].
·Does not have a copy of the letter from the Australian embassy in Beijing with their advice. But she remembered that she sent her email to the embassy on 10 September 2017 (even though she had already lodged her protection visa application on 6 September 2017)
·She denied lodging an application for protection with [Country 1], but then said she applied for protection in [Country 1] after she returned to China. She was refused protection because she was not in [Country 1] when she lodged the application. She did not try lodging a further application with [Country 1].
·She went to the [Country 1] embassy in China but understands there is an extradition treaty with China. She was in a detention centre in [Country 1] because she was illegal at the time and had overstayed her visa in her last year there.
·She is a Christian and belongs to the Local Church. Being a Christian means being kind to people, to save poor people.
·Her journey to become a Christian started when she went to [Country 1], where she was working in a [specified workplace]. There are many churches in [Country 1] and her friends to suggested she attend one. She listened and realised this was the truth in the world. When people help others, they can feel fulfilled. Then she became a follower of the Church and would go every Sunday.
·She still practices at a Church in [Suburb 1], Sydney, at [time] on Sundays. She did not know the name of the church, but said it was a gospel Christian church, opposite [location]. The pastor’s name is [Pastor B]. She said she has attended the church for 2 months but does not have time to attend bible classes.
·She has sought protection as she cannot stay in China. In China, she attended [Church 1]. [In] April 2016, this church was demolished. She had been attending church every Friday and Sunday.
·In China, they think Christians are Falun Gong practitioners.
·In relation to Local Church belief in “Recovery”, she did not understand what this was. She knew about Witness Lee and said he that they need to read the bible everyday for at least one hour. She has read Witness Lee’s books including “the heart in the people” and can buy these books in [Country 1]. She brought many books back to China, but the police destroyed them. She had distributed these books to her friends during church services. The police believed she was organising a cult because of this. She said she did not know about Watchman Nee.
·She said Witness Lee left China in October 2014, she did know where he went. She did not know when he died. Witness Lee taught about God being Three Persons, that follows need to be kind. In relation to Shouting, or calling out, she could not answer how this came about. In relation to being regenerated, she said the Church believes that the church’s teachings is to be kind.
·She hopes to achieve protection by reading the bible. To give her the confidence to live. She prays to be peaceful. When she has difficulty, she will have spirit in her life.
·She said she does not have time to attend meetings in Australia but in China it is illegal to attend meetings. She was a leader in her Church in Chengdu and organised activities. She is not a priest. She said she does not like the Party’s corruption in China.
·She was arrested in China just [in] April 2016 and they asked her questions afterwards. They threatened her that she cannot preach the bible again or organise Church activities again. Otherwise, her whole family cannot live there. She was detained by police for three days. During that time, she was given water but no food and she had to be checked to go to the toilet. The police thought they were Falun Gung adherents.
·After released from detention, she wrote a petition to the Government but this was not accepted. They “drove her away and put her in custody” so she ran away and hid at her friend’s place in Chengdu.
·She found out about Australian protection visas because people at Church in China also told her how to apply and then she wrote a letter to the Australian embassy in China.
·If she returns to China, she would not be able to practice her faith. Otherwise, she will be in custody. But she would do it. It will be very hard.
·The part of the bible that she likes is that if she prays she will find peace.
·She was not baptised in her local church in China. Was baptised in [Country 1]. No evidence of this as it was too long ago. Her certificate is in China but she cannot get it. She could not provide any evidence of being a Christian because everything, including her documents and passport, was stolen in China.
·The photographs she provided to the Department were taken in April 2016. There was no compensation given to them. The property was owned by the Church, which was demolished, and it owns the land. Her [property] was demolished as well, which was next to the church. And no reason was given for the demolition. She petitioned the local government, which was refused.
·Another photo shows them asking for compensation, they were asked by police to lie down, then they were taken away to jail. She said she is seen in the photo lying down. There were 7 people arrested at the protest. There were maybe hundreds (or thousands of them) at the protest. In her church, there were [number] people.
·If she returns to China, she believes the police may still be looking for her. They will monitor her. If she leaves China, her family in China is not monitored. But if she is there, her family will be monitored.
·She cannot move to another province in China because the “network is connected together”.
·She managed to leave China, despite being monitored by Police because of Falun Gong but they do not have evidence of this. She said the authorities would not be able to protect her because they didn’t before. “They think I am Falun Gong, even though they confiscated my bible.”
·She asked her friend in Church to help her with her protection visa application.
·She could not provide any evidence other than the photos about being a Christian. She got the photos because a Chinese friend took them and she sent them to her by email.
·She wants to be given an opportunity by the Australian government to live well.
·Her husband is not Christian.
Documentary evidence

In support of her application, the applicant provided the following documents to the Department:
·Three photographs;
·A copy of her passport;
·A copy of Chinese identity cards for herself and her husband.
In addition to her passport, the applicant provided the Tribunal with a letter from [Senior Pastor C] at the [Suburb 1 church] dated 26 November 2020.
The applicant’s evidence at the Tribunal hearing
At the hearing, the applicant gave the following evidence:
·The information in her application is truthful and that she asked the pastor at her Church in [Suburb 1], Australia, to help appeal the decision. No one helped with the application for protection provided to the Department.
·She is from China and does not have citizenship to any other country/.
·She travelled to [Country 1] in 2008. Prior to going to [Country 1], she was not a Christian but she liked the Cross and wanted to learn. Her “sisters” recommended that she go to [Country 1] as it is very friendly to Christians and is a religious country. She resided in [Country 1] between 2008 to 2015. During that time, she returned to China in 2013 and 2014, each visit was for 2 months.
·In 2015, she had to return to China because she made a serious mistake by introducing some friends to work in [Country 1] but she was not aware that they did not hold valid visas. She prayed to God, but [Country 1] cancelled her visa, so she had to return to China. She confirmed that her visa was cancelled because she had helped those people.
·When asked if she had been detained in [Country 1], she said yes but the sisters in the church helped her to hire a lawyer and then she was freed. She said that she did not seek protection in [Country 1] for being a Christian because she was not aware that Christianity was despised in China at that stage.
·Her mother, older sister, husband and son remain in China. She said that she introduced her mother and sister to Christianity and that her sister still practices. Her mother and sister attend a “family church”, which is simply a few people getting together to pray instead of going to a public church. They are not members of the same church that the applicant was in China.
·She met her husband when she returned to China in 2015 from [Country 1] when she was feeling down. They married that same year. Her son was born in [month, year].
·She said after she left China in 2017, other members of her church were arrested.
·Her brother followed the applicant here to Australia with his son. They came because she told them that Australia is beautiful and is a democratic country. They are practicing Christians too and they have applied for Australian protection visas as well.
·She wishes her husband and son could come to Australia as well. She said her son is too young to be a Christian. Her husband is also not a Christian but does not oppose her practicing her religion.
·The highest level of education she attained was high school in China, which she completed at age 17. She is currently [age] years old.
·Prior to going to [Country 1], she worked in a factory and then operated [Business 2]. After she returned in 2015, she ran [Business 1] for 2 years and also organised her family church. Her most recent job in China was running [Business 1] and she was earning approximately RMB 1000 per week, depending on [the turnover].
·The applicant arrived in Australia in July 2017. She came here because she checked online and found that Australia is an open and tolerant country for Christians. She always planned on applying for protection before she arrived here. She left her husband and son in China because she had been arrested and questioned and because her son was too young to come here. She decided to come to Australia by herself first. Her sister told her that because her situation was urgent, she could go to Australia and see what happens.
·In Australia, she has worked as [Occupation 2] at [various workplaces]. She currently still works as a [Occupation 2] at [specified workplaces] and earns approximately AUS $1,000 per week.
·She said she lodged her claim in September 2017. It took her 2 months to lodge it after her arrival because she initially could not find a lawyer. She asked a lawyer to help her with her application and another lawyer helped her with her review application in the Tribunal.
·She said that Christians are despised in China and are under constant surveillance and threat. The threat is that “they” [the government] claim they [Christians] suffer from mental illness and that they are forced to attend a Chinese Church called “Argui”.
·She was arrested before coming to Australia because she organised a protest about the destruction of her church. She was held in police custody for three days from [date] to [date] April 2016 and was interrogated by a police officer named [Mr D]. She was charged with believing in a sect and had to make a declaration to the Chinese Communist Party, that it is the greatest party and that they should all become atheists and that they suffer from mental illness. They also required her to write a letter of regret and also pay a fine of RMB 1000. She paid the fine.
·The police also found an excuse to beat her but never on her face, it was on hidden places. She was hit on the back, starved without food or water for 24 hours.
·She said two or three months later, the police spoke to her again at the police station, after sending her a notice requiring her to attend. She was held there for 1 day, arrested and released. She said this happened in total around four or five times.
·In relation to the Church she belonged to in China, she said it was an underground church and she was an organiser since returning from [Country 1]. A few people (up to twelve) would get together to “admire god” They would gather in their own homes. She said also said that she attended a public church but was not allowed to say that God is the greatest, rather that the Chinese Communist Party was. This was a registered Church and she did not continue attending because of the requirement to be loyal to the Communist Party.
·She said her underground church was operated by just a few people and they practiced at home, which included bible study, praying and singing songs. When asked for an example of the songs she sang, she said one was called “Chrysanthemum”, another called “Wildflowers” and that a line was “God, I will follow you”. When asked her version of the bible, she agreed that it was the new testament. She said that the bible is a book and says that people should love one another, and that Jesus told us to do good things and to love one another.
·She was asked if she understood what the ten commandments were, and she said yes. She said this means that there is only Him and no other god. That you should not have other idols. The Third is that you should not misuse God’s name. The fourth is that you should keep the Sabbath. The fifth is to respect your parents. The sixth is you must not commit murder. The seventh is that you must not commit adultery. The eighth is that you must not steal. The ninth is that you must not give false evidence or say something bad about others. And the tenth is that you must not be envious of others’ belongings.
·When asked if she has a favourite passage from the bible, she said that she really likes the sentence, “I am the food of life, come here, you won’t be hungry if you believe in me. If you believe in me you won’t ever be thirsty”.
·She was asked about the photographs she provided to the Department. She said that she could not remember what the banners said but confirmed that she was standing in the line of protesters, third from the right. However, she claimed that she did not recall these events. She said the photographs were taken by people from church [in] April 2016, the day of the protest. They were protesting the destruction of the church building.
·When asked about the photograph showing four people lying on the ground with police officers standing around, she said that her friend took this photograph and that she (the applicant) is visible lying on the ground in the photo. She said she was wearing [specified Clothing 1] and a [specified Clothing 2]. The others on the ground were friends (brothers and sisters from the family church). When the Tribunal commented that it was not possible to identify a woman lying on the ground, she said that she had short hair.
·She fears that if she returns to China, she will be arrested and that because she believes that God is the greatest, she will be taken to a mental institution where she will be forced to stay forever. She believes the local police will harm her if she returns to China.
·She does not believe the authorities in China will protect if she returns because everything that was done to her was done under the government’s authority because they do not allow people to believe in God. That there is only one authority (ie. The Chinese Communist Party).
·When asked how many times she has been arrested, she said four or five times plus a three day interrogation.
·She claims she is unable to relocate to another part of China because there is only the one Communist Party and they will not allow her to say God is the greatest.
·When asked if there is another other reason or basis on which she fears harm on return to China, she said no. It is only because she is a Christian. She fears she would be under surveillance and taken to a police station for interrogation because she is a Christian.
·When asked if there was anything further she wanted to tell the Tribunal at the hearing, she said that she loves Australia deeply and wants to bring her husband and son here. She wants to make a contribution to this democratic and free country forever.
Independent Country Information
The Department of Foreign Affairs and Trade (DFAT) most recent Country Report on China is dated 3 October 2019, provides the following information:
Government framework regarding religion[1]
[1] The DFAT Report at page 24
3.37Chinese 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).
3.38Article 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, 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.
…
3.44Broadly 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.
3.45Religious practice that the government perceives as contravening broader ethnic, political or security policies (for example, see Uighurs and Muslims) is at high risk of adverse official attention. China has one of the largest populations of religious prisoners, estimated in the tens of thousands. Human rights groups claim, but DFAT cannot verify, that some religious prisoners are tortured and killed in custody. Since 1999, the US State Department has annually designated China as a country of particular concern for religious freedom due to continued reports of arbitrary detentions and violence with impunity.
3.46Members of religious groups claim government authorities continue to press to install CCTV at all religious sites, and failure to comply can lead to authorities cutting power and water, or restricting rental space to pressure compliance. According to media, in April 2018, the Zion Church in Beijing (one of Beijing’s largest unofficial Protestant house churches) refused a request from government authorities to install cameras, including in worship areas, for security purposes. Churchgoers were reportedly harassed by police and state security officials at their homes and places of employment, and the Zion Church was evicted by its landlord.
3.47Regulations prohibiting proselytising are generally enforced across Chinese cities. Public expressions of faith are more vulnerable to adverse treatment than private worship (including in small groups). In Rongcheng, Shandong, an Social Credit System (SCS) pilot area (see The Social Credit System and Security Situation), residents of First Morning Light, a neighbourhood of 5,100 families, have taken the official Rongcheng SCS pilot a few steps further and introduced their own SCS penalties for “illegally spreading religion.’ DFAT is aware of reports of foreigners, including religious missions, being refused entry at churches due to pressure from local authorities.
3.48DFAT assesses an individual’s ability to practise religion can be influenced by whether the individual exercises faith in registered or unregistered institutions, whether they practice openly or privately, and whether or not an individual’s religious expression is perceived by the CCP to be closely ties to other ethnic, political and security issues.
Christians[2]
[2] The DFAT Report @ p.30
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).
…
3.83 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.’
Falun Gong[3]
3.96Falun Gong (also known as Falun Dafa) is a spiritual movement that blends aspects of Daoism, Buddhism, and Qigong (traditional breathing and meditation). Freedom House estimates seven to 20 million people currently practice Falun Gong in China. Falun Gong practitioners claim the movement has ancient origins, but it first appeared in its modern form in 1992, when founder Li Hongzhi began teaching the exercises in Changchun, Jilin province. Unlike other religions, Falun Gong focuses on private exercises and meditation.
3.97The government declared Falun Gong illegal and ‘an evil cult’ after a large protest by followers at the CCP headquarters in Beijing in 1999. The CCP maintains a Leading Small Group for Preventing and Dealing with the Problem of Heretical Cults to eliminate the Falun Gong movement and to address ‘evil cults’. An extrajudicial security apparatus known as the 6-10 Office (named after 10 June 1999 crackdown against Falun Gong) has the task of eradicating Falun Gong activities. The 6-10 office has reportedly created specialised facilities known as ‘transformation through re-education centres’ to force practitioners to relinquish their faith. Falun Gong reportedly remains active throughout China, but most prominently in Shandong and northeastern China, although Falun Gong’s illegal status makes this difficult to verify.
…
3.102 Unlike other officially designated cults, the government regards Falun Gong practitioners as political opponents rather than victims, and treats them accordingly (see Political Opinion (actual or imputed)). Lawyers who defend Falun Gong practitioners are frequently denied access to their clients in detention or court, and are subjected to adverse treatment and physical and electronic surveillance by authorities (see Human Rights Defenders (including Lawyers)).
3.103 Falun Gong practitioners known to the authorities would likely find it difficult to obtain a passport. Sources report some migration agents, particularly in transit countries, may have coached would-be asylum seekers on Falun Gong practices to facilitate their claims.
3.104 DFAT assess that Falun Gong practitioners, and their lawyers, are at high risk of official discrimination. Due to the government’s sustained public campaign against them, Falun Gong practitioners, if exposed, face a moderate risk of societal discrimination.
[3] DFAT Report @ page 33
ASSESSMENT OF CLAIMS AND FINDINGS
Credibility

When assessing claims, the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is taken into account in these findings.
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. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[4]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[5]
[4] s.5AAA Migration Act 1958.
[5] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.
A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[6] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
[6] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482
If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt.[7] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
FINDINGS AND REASONS
Protection as a refugee under s.36(2)(a)
[7] The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196.
Having considered the applicant’s protection visa application and the evidence before it, the Tribunal makes the following findings.
The applicant was questioned at the Department’s interview about whether she belonged to a local church in China, to which she replied yes. She was then asked questions testing her knowledge of Witness Lee, Watchman Nee, recovery, shouting and being regenerated. She then said that the church’s teachings are to be kind. The Tribunal does not consider the applicant to be an adherent to the local church in the sense that the interviewer was referring. Having listened to the recording of the interview, the Tribunal considers the applicant appeared confused about these references to Watchman Nee, recovery, shouters and being regenerated. Accordingly, the Tribunal finds that the applicant is not an adherent to the local church in Church and does not follow the teachings of Witness Lee or Watchman Nee.
However, the Tribunal has difficulty accepting the applicant’s claim that she is a Christian. On her evidence, she has been a practicing Christian since 2008 when she went to [Country 1]. Upon her return to China, she continued practicing her faith there. She has also continued to do so in Australia. But despite over 12 years of being a Christian, the applicant was only able to give basic information about her faith, the bible and religious songs.
The main message that she receives from the bible is to be kind to others. While this is not incorrect, it is an over-simplification of what it means to believe in God and to be a Christian. She said in her Department interview that the part of the bible that she likes is “that it brings her peace”. She did not identify any particular story or lesson from the bible that she liked. She did, however, inform the Tribunal in her evidence at the hearing that she liked the line in the bible: “I am the food of life, come here, you won’t be hungry if you believe in me. If you believe in me you won’t ever be thirsty”. The Tribunal understands this to be along similar lines to John 6:35 in the bible.
Nonetheless, the Tribunal has difficulty accepting that the applicant has had a strong Christian faith over the last 12 years if she is unable to explain Christianity and the bible in a more comprehensive way. Her ability to recall a particular quote from the bible may be attributed to her attendance at the [Suburb 1 church] since she arrived in Australia in 2017.
Another aspect of the applicant that the Tribunal has had difficulty accepting is a fundamental part of the applicant’s claim, that she says she was arrested and interrogated for three days by police for protesting the destruction of her church [in] April 2016. In her application, she stated that her local church in Chengdu suffered the forced demolition and relocation [in] April 2016. However, at the hearing, she stated that she worshipped at home and at the homes of others where they pray, read the bible and sing. These were small gatherings of up to twelve people and were made up of her friends and family. She said at the hearing that the Church she attended in China was a registered church where the CCP came first. She said she did not continue attending this church because she disagreed with this, that it is God that should come first.
Furthermore, the Tribunal has closely examined the photographs provided by the applicant in support of her claim that she was arrested as a result of the protest about the destruction of her church [in] April 2017. She said that she was third from the right in the line of protesters behind a banner. She also said that she was one of the four people lying on the ground in another photograph. She was unable to remember what the banners stated.
The Tribunal did not identify any person that looked like the applicant amongst the individuals holding the banner. Nor was it able to identify the applicant in amongst the four individual lying on the ground surrounded by police. As mentioned at the hearing by the Tribunal, the applicant cannot be identified in that photograph.
She stated that she was wearing [specified Clothing 1] and a [specified Clothing 2] and that she had short hair. All four of those lying on the ground in that photograph were wearing [specified Clothing 2] and three of the four was wearing [specified Clothing 1]. It is not possible to ascertain the hair length of anyone on the ground as their heads are not clearly visible. However, the Tribunal considers that it is more likely than not that the four individuals on the ground are male given their body shapes and size.
The applicant also said in the Department interview that there were hundreds, maybe thousands of people at this protest. The photographs show only a handful of people, nowhere close to even a hundred people.
After the hearing, on 10 December 2020 the Tribunal sent the applicant an invitation to comment on or provide information to the Tribunal about the contents of the banners in the two photographs. The Tribunal had obtained translations of the banners as stating the following in English:
a.Photograph 1:
i.“[A named residential property development project] Owners’ Rights Protection Committee”.
b.Photograph 2:
i.“President Xi, save me, my home is demolished”;
ii.Return me to Suo Yuan and return to Guang Square”;
iii.“[A named residential property development project] Owners’ Rights Protection Committee”;
iv.“Every plant and tree in a metropolis is our body suffer”; and
v.“Owner’s, no violation of any unit or general”.
On 15 December 2020, the applicant provided the following comments:
Thanks for the opportunity of the explanation, I would like to explain to you the concerns you are holding in terms of the pictures situation I provided.
It was because that the church located in the area of the [named residential property development], the government demolished the church as well as the residential buildings around, all of our Christians and representatives of the residents organised this protest against the crimes of the government. All important materials and evidence were destroyed by the government officials during the protests, the police arrested us and threatened our lives and our families, so I had to leave my son and run away from home. I had my son when I was [age] years old, and I had to leave him when he was only [age] year old. As a mother, I am unqualified, as a Christian, I am guilty.
I heard that Australia is a fair, democratic and free country. Here, you will be treated equally regardless of where you come from without any racial discrimination and insult. The God guided me to come here, this is a very different and beautiful country to me. It really gives me the freedom, human rights and a good life, which I am more than grateful. Australia gave me the new life, I could finally be a religious Christian with my whole heart. There is no constraint to different faiths, and I do not need to be on the run and homeless, Australia is my home now.
I have made a lot of good local friends, everyone helped each other, was helpful, and treated with mutual respect attracted me. I am deeply in love with this country and people. The beautiful city and the kind Australian people warmed me up. I truly felt respected and cared for. I hope that I can live in this country for a long time. I hope you will consider my application and give me protection and support. [sic]
In relation to the banners, the Tribunal considers that the applicant’s evidence is that the Church was located in the area of [the named residential property development] and that the protesters were protesting the destruction of residential buildings as well as the Church. She said all evidence and materials were destroyed by the government officials. The Tribunal has reservations about the applicant’s further evidence about the banners and the protest. The applicant did not disagree with the translated banners that there is no reference to the Church or Christianity in the banners. Furthermore, the applicant said that the representatives of the residents organised the protest with the “Christians”. Yet, it was only her “brothers and sisters” from the church who were arrested. The Tribunal finds it difficult to accept that the police would have been able to pick out those who were Christians amongst a crowd of protesters that included Christians and non-Christians. This evidence also contradicts her evidence at the hearing that the protest was about the destruction of the Church. Her further evidence shows that it was a broader protest.
In light of the matters set out above, the Tribunal does not accept that the applicant’s claim that attended a protest in relation to the destruction of a church [in] April 2017 and it does not accept that the applicant was arrested and detained for three days as a result. It follows that the Tribunal is unable to accept the applicant’s claims that she has been arrested four or five times for being a Christian.
Furthermore, there is an inconsistency in her evidence about the police officer who she claims interrogated her. In her application, she stated that name of the policeman who arrested her is named [Mr A]. However, she told the Tribunal that the name of the police officer who interrogated her was named [Mr D]. This cannot be put down to being a misinterpretation or misunderstanding. They are clearly distinct names. While she explained these people’s roles as being one who arrested her and the other as being the one who interrogated her, she did not tell the Tribunal anything about [Mr A], nor did she include details of [Mr D] in her application for protection. This leads the Tribunal to have concerns over the voracity of her evidence about being arrested and interrogated.
The Tribunal has considered the applicant’s claim that the police (or the Government) think that Christians are Falun Gong practitioners and that this is why she was she was detained and interrogated for three days. The country information set out is clear, that the Chinese Government views Falun Gong as an evil cult and is treated in more harsh ways compared to Christians in unregistered churches. Being a Falun Gung practitioner is viewed as being very distinct from being a Christian. For this reason, the Tribunal does not accept the applicant’s evidence that she was held in custody because the police believed her to be a Falun Gong adherent. As set out above, the Tribunal also does not accept that the applicant was held in custody for being a Christian either.
The fact that she was able to leave China under her passport suggests that she was not under surveillance for being either a Christian or a Falun Gong practitioner. As noted above, Falun Gong practitioners are under heavy surveillance.
While the Tribunal accepts that for Christians practicing their religion in China there is a real chance that a person may be persecuted, the Tribunal does not consider the applicant has a well-founded fear of persecution by reason of religion and that there is not a real chance of her being persecuted for this reason in the event she is returned to China given the Tribunal’s findings set out above in relation to whether she is in fact a Christian, the protest [in] April 2016 and her claims of being arrested and interrogated by police.
Given the above findings, it follows that the Tribunal also does not accept that applicant’s claims that she has no place to live as a Christian in China and has to attend underground churches or her claim that she will be accused of being accused of being in a cult and sent to a labour camp, mental hospital or prison or harmed by police in any way.
Complementary protection under s.36(2)(aa)
The applicant has not made any claim that because of her attendance at the [Suburb 1] Church or elsewhere in Australia, that if she returned to China she would face serious or significant harm. Based on the letter provided by the applicant from [Pastor C], it is a mainstream Christian church with mostly Chinese parishioners. There is evidence that she has participated in very limited proselytising in Australia, as she has been too busy.
[Pastor C] stated in his letter dated 20 November 2020 that he has known the applicant since “late this year” when she joined their morning service at [location]. He appears to have one conversation with her, as he states:
throughout the conversation with [the applicant], I learned that she came from Sichuan province of China to Australia in 2017. She became a Christian when she worked in [Country 1] from 2008 to 2015. During this period, she attended a Chinese Christian Church in [City 1] (the capital city of [Country 1]) regularly. In October 2015, [the applicant] went back to China from [Country 1] and started to join the family church. In July 2017, [the applicant] came to Australia. Unfortunately, she was diagnosed with breast cancer early this year and got the surgery in April. Although the road of faithfulness to God for [the applicant] is not easy, during my conversation with her I did not find grief from her face. [The applicant] commits to her faith to God, and she also participates in online bible study group from [Church 2] in [Suburb 2] after our church Sunday Service. I notice that [the applicant] is a sincere and committed Christian. She is a mature, honest, kindhearted and hardworking lady. She is a valuable member of our Church. I believe she will be a valuable member of the Australian community and will give valuable contributions to this country.
There is no evidence from [Pastor C] that the applicant has ever discussed with him the difficulties faced by Christians practicing in China. Her religious activities in Australia appear to be limited to attending Church services and attending an online bible study group.
The Tribunal accepts that the applicant has engaged in Christian activities in Australia. But there is no evidence that these activities would result in the applicant facing real risk of being arbitrarily deprived of her life, facing the death penalty or subjected to torture, cruel or inhuman treatment or punishment; or degrading treatment or subjected to torture; cruel or inhuman treatment or punishment; or to degrading treatment or punishment if she is returned to China. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has a protection objection under s.36(2)(aa).
Furthermore, in light of the Tribunal’s concerns about the applicant not in fact being Christian and the Tribunal’s findings in relation to the photographs she provided allegedly at a protest over the destruction of a church and about her alleged arrests and interrogation, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China there is a real risk she will be arbitrarily deprived of her life or suffer the death penalty, or subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. The Tribunal does not accept that the applicant will be engaging in activities that would place at real risk of suffering significant harm because it does not accept her underlying motivation to practice Christianity in China.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Elizabeth Tueno
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.
…

[2021] AATA 247

11 January 2021

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction