1805724 (Refugee)

1805724 (Refugee) [2024] AATA 1295 (5 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Kevin Williams-Besy
CASE NUMBER:  1805724
COUNTRY OF REFERENCE:                   China
MEMBER:Sheridan Aster
DATE:5 March 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 05 March 2024 at 4:21pm
CATCHWORDS
REFUGEE – Protection Visa – China – religion – Sunni Muslim – race – an ethnic Uyghur – membership of the particular social group – a young Uyghur woman – there is a real chance that the applicant would face physical harassment, ill-treatment, detention – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 91, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 February 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a [age]-year-old woman from Xinjiang Uighur Autonomous Province, China. She arrived in Australia on [date] June 2014 on a [Student] visa. She applied for protection on 9 June 2015 on the basis that she would be persecuted in China as an ethnic Uyghur and Sunni Muslim. The delegate accepted that the applicant is ethnic Uyghur and Muslim, however did not accept that she was a person to whom Australia has protection obligations.
CLAIMS AND EVIDENCE
The applicant set out her claims for protection in a statutory declaration dated 29 May 2015, provided with her application for protection form. In summary, the applicant outlined that she was born in Atushi City, East Turkistan (known as Xinjiang Uygher Autonomous Region). Her family ancestry is ethnic Uyghur and she is Sunni Muslim. The applicant claimed that Uygher Muslim people have a long history of persecution perpetrated by the Chinese Government. She outlined that the assimilation policies of the Chinese Government had impacted her physical, mental and spiritual wellbeing by removing her religious freedom and identity by force. The applicant provided examples of discrimination she experienced through her schooling in China.
On 10 September 2017, the applicant’s representative made legal submissions on her behalf. The representative submitted that the applicant would be persecuted in China by state and non-state agents for reason of her race, religion and imputed political opinion. The representative referred to a number of sources with information about the treatment of Uyghur and Muslim people in China. Given the passage of time, I have referred to contemporaneous material below in the analysis and findings.
On 12 September 2017, the applicant participated in an interview with the delegate. The interview was conducted with the assistance of an interpreter in the English and Uyghur languages. A recording of the interview was provided to the Tribunal and I have listened to that recording.
On 16 February 2018, the delegate found that the applicant was not a person to whom Australia has protection obligations. The applicant applied to the Tribunal for merits review of that decision. A copy of the decision was provided to the Tribunal with the application for review.
The applicant’s representative made submissions on 28 January 2022 and 7 September 2023. The submissions provided updated information about the treatment of Uyghur and Muslim people in China. The applicant’s core claims for protection remained unchanged, however it was contended that the applicant would face additional risks as a female. In the most recent submissions, the representative advised that the applicant’s mental health had deteriorated. She was referred by [an organisation] for pro bono trauma counselling on 15 August 2023.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, I have 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.
ANALYSIS AND FINDINGS
For the following reasons, I find that the applicant is a person to whom Australia has protection obligations. In making this decision, I did not consider it necessary to invite the applicant to a hearing.
I accept that the applicant is a Uyghur from Xinjiang, China. The applicant’s passport, issued by the People’s Republic of China, lists both her place of birth and the place of issue as Xinjiang. The applicant’s identity was accepted by Border Force when she entered Australia and in the decision of the delegate. The applicant participated in an interview with the delegate using the Uyghur language.
Uyghurs are an ethnically distinct, predominantly Sunni Muslim people native to Central Asia. Approximately 12 million Uyghurs live in Xinjiang, which represents 45 per cent of the region’s population.[1]
[1] Main Data of Xinjiang Uygur Autonomous Region from the Seventh National Population Census, Consulate-General of the People’s Republic of China in Toronto, 14 June 2021, accessed at >
The Department of Foreign Affairs and Trade (DFAT) reports that expression of Islamic or Uyghur identity, religious practices, access to sites of religious significance and the availability of holy books in Xinjiang is subject to control. Residents of Xinjiang are closely monitored by local police and it is reported that collected data is fed into a database used to identify potential subjects for arrest. Uyghurs are at risk of being detained in high-security internment camps, often without charge. Former detainees have reported sleep deprivation, shackling, beating, sexual abuse, electric shocks, being placed in stress positions and being subject to unhygienic and crowded conditions. DFAT assesses Uyghurs in Xinjiang and in other parts of China face a high risk of official discrimination due to their ethnicity and cultural and religious practices. DFAT assesses that Uyghurs face a moderate risk of societal discrimination.[2]
[2] Department of Foreign Affairs and Trade Country Information Report China, Department of Foreign Affairs and Trade, 22 December 2021.
The BBC reports that in 2020 up to half a million people were being forced to pick cotton in Xinjian, with evidence that new factories had been built within the grounds of re-education camps. There have also been reports of mass forced sterilisation of Uyghur women to supress the population, a claim which China rejects.[3] The United Kingdom Home Office reports that women of childbearing age have been forced to undergo birth control measures and forced abortions. Women can be detained for having too many children and are at risk of sexual violence whilst in detention.[4] Despite Islam being recognised by China as one of five official religions, Muslims living in the Xinjiang region, particularly Uyghurs, are unable to practise their faith openly as it will likely be perceived as a support for independence.[5]
[3] ‘Who are the Uyghurs and why is China being accused of genocide?,’ BBC News, 24 May 2022, accessed at Country Policy and Information Note – China: Muslims (Including Uyghurs in Xinjiang), UK Home Office, Version 2.0, July 2022
[5] Ibid.
It has been reported that ‘those who are sent to the camps include former prisoners, suspects and anyone who has travelled overseas, and [authorities] say the camps will ‘cleanse’ them of ideology that endangers state security.’[6] The UK Home Office also notes that there are widespread reports that authorities are highly suspicious of Uyghurs and other Muslim ethnic minorities in Xinjiang who have family overseas or who have travelled overseas.
[6] Shohbert Hoshur, ‘Xinjiang Authorities Detain Uyghurs ‘Wanting to Travel Abroad’, Radio Free Asia, 27 March 2018, accessed at >
The delegate expressed the opinion that the applicant had practiced her faith in private since arriving in Australia, despite the religious freedom available in this country. While that may be the case, I accept that Uyghur and Islamic identities are intertwined in China and the applicant’s faith would be imputed even if she made no attempt to practice in a public fashion by covering her hair or attending mosque.
The applicant has lived outside China in a Western country for the last ten years, having travelled to Australia as a student. I accept that this would bring her to the attention of Chinese authorities if she returned. As a young Uyghur woman, I accept that there is a real chance the applicant would experience sexual violence in detention and forced monitoring and control of her reproductive health.
In view of the evidence before me, I am satisfied that there is a real chance that the applicant would face physical harassment, ill-treatment, detention, and severe restrictions on her ability to practise her religion by the authorities in China. I am satisfied that such treatment would amount to serious harm under s.5J(4)(b) of the Act. I am satisfied that the harm the applicant fears involves systematic and discriminatory conduct as required by s.5J(4)(c). As the applicant’s fear of harm is from the authorities in China, I am satisfied that the real chance of persecution relates to all areas of China. I am satisfied that the applicant’s race, religion and imputed political opinion are the essential and significant reasons for the persecution feared by her.
For the reasons given above, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Sheridan Aster
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.
…

[2024] AATA 1295

5 March 2024

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