1808855 (Refugee)

[2021] AATA 4304

1808855 (Refugee) [2021] AATA 4304 (17 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1808855

COUNTRY OF REFERENCE:                  China

MEMBER:Dominic Triaca

DATE:17 September 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 17 September 2021 at 4:00pm

CATCHWORDS

REFUGEE – protection visa – China – religion – Christian – Local church – Shouters – house church – physical assault – detention release certificate – permission to travel abroad – return visits to China – decision under review affirmed

LEGISLATION

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

CASES

AKH16 v Minister for Immigration and Border Protection  [2019] FCAFC 47;  (2019) 269 FCR 168
AON15 v Minister for Immigration and Border Protection  [2019] FCAFC 48; (2019) 269 FCR 184
Chan v MIEA (1989) 169 CLR 379
Chen Shi Hai V Minister for Immigration and Multicultural Affairs [2000] HCA 19; 201 CLR 293
MIEA v Guo & Anor (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIlhatton v Guo Wei Rong and Pam Run Juan (1996) 50 ALD 445
SZLPN v Minister for Immigration and Citizenship [2010] FCA 202
SZNRZ v Minister for Immigration and Citizenship [2010] FCA 107
Yao-Jing Li v MIMA (1997) 74 FCR 275

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 March 2018 to refuse to grant the visa applicants a Protection (Class XA) Subclass 866 visa under s. 65 of the Migration Act 1958 (the Act)[1]. If granted, a Subclass 866 protection visa permits a non-citizen to remain in Australia indefinitely.

   [1] See Migration Regulations 1994 (Cth), Sch 1, cl 1401; Sch 2, cls 866.1 to 866.611

2. The main applicant (applicant) is [an age] year old citizen of the People’s Republic of China. She arrived here [in] January 2017 on a visitor visa. She applied for a protection visa on 17 January 2017. The Secondary Applicant is her Husband. He is [an age] year old citizen of the People’s Republic of China. He arrived with the applicant [in] January 2017.

1. The delegate refused to grant the visa on the basis that he was not satisfied that the applicant was a person to whom Australia has protection obligations as outlined in s.36(2) (a) or (aa) of the Act and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s.36(2)(b) and s.36(2)(c) of the Act).

2. The applicant appeared before the tribunal for a hearing on 10 September 2021. She was assisted by a Mandarin interpreter. The Secondary Applicant, [named] also gave evidence to the tribunal, as did [Witness A] a further witness called by the applicant.

3. For the following reasons, the tribunal has concluded the decision under review should be affirmed.

RELEVANT LAW

1. The criteria for the grant of a protection visa are set out in s. 36 of the Act and Schedule 2 of the Regulations. An applicant must establish that they are a non-citizen of Australia and that they are either:

   (a)A person in respect of whom Australia has protection obligations because that person is a refugee (the refugee criterion)[2];

   (b)A person in respect of whom Australia has protection obligations because of other complementary protection grounds (the complementary protection criterion)[3]; or

   (c)A member of the same family unit of a person who has been granted a protection visa on refugee or complementary protection grounds (family member criterion)[4].

   [2] Migration Act 1994 (Cth), s 36(2)(a)

   [3] Migration Act 1994 (Cth), s 36(2)(aa)

   [4] Migration Act 1994 (Cth), s. 36(2)(b),(c).

2. 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 protection in that country.[5] 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 they are unable or unwilling to return to that country.[6]

   [5] Migration Act 1994 (Cth), s 5H(1)(a)

   [6] Migration Act 1994 (Cth), s 5H(1)(b)

1. 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 of the Act.

1. The term persecution is not expressly defined in the Act. The standard Australian dictionary, the Macquarie Dictionary, defines the verb to "persecute" as "to pursue with harassing or oppressive treatment; harass persistently" and relevantly, "to oppress with injury or punishment for adherence to principles".[7]

   [7] SEE CHEN SHI HAI V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS [2000] HCA 19; 201 CLR 293 AT [61] TO [65] FOR A DETAILED DISCUSSION OF THE MEANING OF PERSECUTION.

1. Section 5J of the Act states that for the purposes of the application under the Act a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race nationality, membership of a particular social group or political opinion’ and that there is a real chance they will be persecuted for one or more of these reasons in the event they return to their receiving country. The real chance of persecution must also relate to all areas of the receiving country.[8]

   [8] Migration Act 1958 (Cth) 5J(1)(c)

1. In Chan v MIEA[9] the Court, when considering ‘well-founded fear’ for the purposes of the Refugee Convention, held that involves both a subjective and objective element.[10] Mason CJ said at 389:... If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring. Dawson J said at [397] ‘Upon any view, the phrase contains both a subjective and an objective requirement. There must be a state of mind - fear of being persecuted - and a basis - well-founded - for that fear. Whilst there must be fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear ‘and at 398 that a “real chance is one that is not remote regardless of whether it is less or more than 50%”. Toohey J said at 407:The test suggested by Grahl-Madsen, “a real chance”, gives effect to the language of the Convention and to its humanitarian intendment. It does not weigh the prospects of persecution but, equally, it discounts what is remote or insubstantial. It is a test that can be comprehended and applied. McHugh J said at 429:...a fear may be well-founded for the purposes of the Convention and Protocol even though persecution is unlikely to occur...an applicant for refugee status may have a well-founded fear of persecution even though there is only a ten per cent chance that he will be...persecuted.

   [9] (1989) 169 CLR 379

   [10] the meaning of “well-founded fear of persecution”, and “real chance” of persecution were the subject of earlier judicial commentary when the applicable tests were found in the Refugees Convention. Those authorities remain apposite. In AKH16 v Minister for Immigration and Border Protection[2019] FCAFC 47;  (2019) 269 FCR 168 (AKH16) (Besanko, Middleton and Mortimer JJ) and AON15 v Minister for Immigration and Border Protection[2019] FCAFC 48; (2019) 269 FCR 184 (AON15)(Besanko, Middleton and Mortimer JJ) the Full Court usefully discussed some of the main authorities.

1. The Act provides that a person is only considered to have a ‘well founded’ fear of persecution if three elements are satisfied.

   (a)They fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;[11] and

   (b)There is a real chance that, if they are returned to their home country, they would be persecuted for one or more of those reasons;[12] and

   (c)The real chance of persecution relates to all areas of the receiving country.[13]

   [11] Migration Act 1958 (Cth), s 5J(1)(a)

   [12] Migration Act 1958 (Cth), s 5J(1)(b)

   [13] Migration Act 1958 (Cth), s 5J(1)(c)

2. In the event that a person fears persecution for one or more of the prescribed reasons, the Act imposes the following three further requirements[14]:

   (a)The identified reasons(s) for the persecution must be the essential and significant reason(s) for the persecution;

   (b)The persecution must involve serious harm to the person; and

   (c)The persecution must involve systematic and discriminatory conduct.

   [14] Migration Act 1958 (Cth), s 5J(4)(a)(b)(c)

3. A person will not have a well-founded fear of persecution if effective protection measures are available to the person in their home country or if the person could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in their home country.[15] In determining whether a person has a well-founded fear of persecution, any conduct engaged in by that person in Australia is to be disregarded unless the person satisfies the tribunal they engaged in the conduct otherwise then for the purpose of strengthening their claim to be a refugee.[16]

   [15] Migration Act 1958 (Cth), s 5J(2) and (3)

   [16] Migration Act 1958 (Cth), s 5J(6)

4. 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 consequences 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) & (2B) and extracted in the attachment to this decision.

1. An applicant is considered not to be at real risk of suffering significant harm in a country if it is reasonable for the applicant to relocate to an area of that country where there is no real risk that the applicant will suffer significant harm[17],or the tribunal is satisfied that the applicant could obtain protection from an authority all that country such that they would not be a real risk that the applicant would suffer significant harm or the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally. That is, the level of protection must be such that the risk that the applicant will suffer significant harm is less than a real risk.[18]

   [17] Migration Act 1958 (Cth), s.36(2B)(a)

   [18] Migration Act 1958 (Cth), s.36(2B)(b).

1. The tribunal has concluded that the decision to refuse the applicant a protection visa ought to be affirmed in this case, for the reasons which are set out below. In reaching its decision, the tribunal has had regard to:

   (a)The delegate’s decision record;

   (b)The applicant’s original written visa application;

   (c)All written material filed by or on behalf of the applicant in relation to this case;

   (d)Oral evidence and arguments presented at the hearing, including oral evidence from witnesses [the second applicant] and [Witness A];

   (e)Other relevant documents on the Tribunal and Department files;

   (f)Statutory Declaration declared by the applicant;

   (g)Letters from members of the applicant’s Church in [City 1];

   (h)Certificate of Release from Detention (translated document);

   (i)News articles in relation to religious persecution in China;[19]

   (j)The ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs’[20];

   (k)Country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, also mandatory considerations under Direction No. 84.

   [19] ChinaAid.org; Chinese Officials Crack Down on Christian Fellowship, Detain Believers, 16 July 2019;

   [20] These are mandatory considerations as prescribed by Ministerial Direction No. 84, a direction made under s.499 of the Act (Direction No 84)

2. Not all the evidence and material that has been placed before the tribunal is specifically referred to in the tribunal’s reasons set out below. The reasons refer to information that is materially significant to the determination of the issues at hand.

Credibility.

1. When assessing claims, the Tribunal must make findings of fact in relation to the claims. In doing so, the tribunal must assess whether the applicant’s claims are credible. Credibility is assessed having regard to the individual circumstances of the case and the evidence before the tribunal.[21] In making this assessment, 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 his or her claims. All this is taken into account in these findings.

   [21] Department of Human Affairs, PAM 3: “Refugee Law Guidelines:, [15.3]

2. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[22] 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. Although the concept of onus of proof is not appropriate to administrative enquiries and decision making[23], the tribunal must nevertheless be satisfied that there is a reasonable evidentiary foundation that sustains an applicant’s claims. If there is no foundation, the tribunal is obliged to reject those claims. 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^.[24] Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[25]

   [22] MIEA v Guo & Anor (1997) 191 CLR 559 at 596

   [23] Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288

   [24] Migration Act 1958 (Cth) s.5AAA

   [25] MIEA v Guo (1997) 191 CLR 559 at 596

1. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility[26]. 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.

   [26] Minister for Immigration and Ethnic Affairs and McIlhatton v Guo Wei Rong and Pam Run Juan (1996) 50 ALD 445 per Foster J at p.482

1. If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt where they are unable to fully substantiate their claims[27].  However, this only applies if the tribunal is satisfied as to the applicant’s general credibility in the case at hand.[28] An applicant is not entitled to have claims accepted simply because there is a mere possibility that they might be plausible.[29] 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.

   [27] Department of Home Affairs, PAM 3: ‘Refugee Law Guidelines’, [15.3]

   [28] SZNRZ v Minister for Immigration and Citizenship [2010] FCA 107

   [29] SZLPN v Minister for Immigration and Citizenship [2010] FCA 202, [17]

2. The tribunal is not obliged to assist the applicant make their case. Nor is it required to accept uncritically and or all of their claims. It is the responsibility of the applicant to specify all particulars of their claim and to provide sufficient evidence in support of it.[30]

CONSIDERATION OF CLAIMS AND EVIDENCE.
Applicant’s Background.

[30] Migration Act 1958 (Cth), s.5AAA(2)

Identification

1. The applicants provided their passport to the Department corroborating this claim. They do not claim to hold citizenship of any other country. The applicant provided the Department with sufficient evidence to demonstrate their identity and I find the applicants’ identity is in accordance with the documents provided.

Protection Claims.

1. The applicant’s protection claims are set out in her original visa protection form and interview with the Department and summarised in the delegate’s decision as follows (the claims):

   (a)The applicant fears harm due to her religious beliefs. She followed her parents, who had leading roles in the family church in Fuqing City. Family members of both applicants are devoted Christians and have been for decades. Her father was arrested in June 2005, taken into custody and mistreated;

   (b)She was baptised at [age] and has been practising her religious beliefs in the family church all her life. Her husband is also a church brother. Their child is currently living in China with her parents. Between September 2012 and April 2016 she lived in [Country 1], but there was no family Church there.

   (c)Their family church was established by Brother Watchman Nee and Witness Lee. Their church was not registered with the three Self Patriotic. Their Church has been banned since the 1980s and classified as an evil cult or ‘shouters’. Hundreds of their local family church members suffered crackdown, harassment, persecution and have fled the country.

   (d)She was responsible for arranging family meetings in their village and spreading the gospel. [In] December 2016, her house was raided by the Fuqing Public Security Bureau while she was hosting a family church gathering. As she was a leading sister at the gatherings, she was taken away for questioning and detained at the custody centre for six nights. She was questioned by police officers trying to find out who was in charge in her district. Because she did not co-operate she was slapped and assaulted. Before her release [later in] December 2016 she was threatened by police to stay away from the Church. She was warned to expect very harsh punishment if she attended family church gatherings.

   (e)Following her release she engaged an agent who assisted her and her husband to get an Australian visa. After arriving in Australia she joined the local family church in [City 1].

   (f)The local family church is banned in China and the government is cracking down on the church since the 1980s. There is no freedom of religious practice for the local family church. She cannot move to live in other parts of China as there is a strict household registration policy.

1. The applicant gave evidence at the hearing.  In addition to confirming matters previously stated, the applicant provided further information by way of updating her circumstances since the delegate’s decision. I summarise her evidence as follows:

   (a)  She is from Fujian Provence, [from her named] Village;

   (b)  She arrived in Australia [in] January 2017 with her Husband;

   (c)  She has lived in [City 1] since arriving in Austraila. She works for a [business] in [a specified role]. Her Husband works in the [specified] industry.

   (d)  Her [age] year old daughter is cared for by her mother in China.

   (e)  In China she was a ‘housewife’. Her Husband worked in the [specified] industry.

   (f)   She lived in [Country 1] between 2009 and 2016. [Deleted.] She worked in a [product] shop assisting her [Relative A]. She was married in 2012 in [Country 1]. Her Husband managed the [product] business. She claimed that her previous reference to having lived in [Country 1] between 2012 and 2016 was an error and that this was the period in which her Husband resided in [Country 1]. She confirmed she lived in [Country 1] for approximately 7 years. Prior to going to [Country 1] she was involved in a youth group.

   (g)  She obtained a passport through the usual channels.

   (h)  She stated that her previous passport had been stolen in her handbag.

   (i)    An agent assisted her obtaining a visa to Australia. This occurred following her release from detention.

   (j)    She grew up in a Christian family and was baptised. In China she attended Church services every week and tried to spread religion. She claims to have done so by doorknocking and sharing the bible with new people. She says that in China she attended gatherings in friends houses and sometimes larger gatherings of 70-80 people at ‘clubs’ in her village. Her family remain in China and attend Church gatherings in secret.

   (k)  In [Country 1] there were no Churches, other than Catholic Churches which she did not attend. She says that she practiced her religion at home, reading the Bible with her Husband and an [Relative A], and singing hymns.

   (l)    She says she could not do this in China, as the local church is not permitted by the government in China. It is thought of as a cult.

   (m)    She says she attends services three or four times a week in [City 1]. Her Husband attends with her when work permits.

   (n)  She travelled to [Country 2] and [Country 3] for holidays in early December 2016. She encountered no difficulties in travelling there. I asked for her explanation as to her application containing a copy of her passport that shows she held a Schengen visa and travelled to [Country 4] in December 2015. She denied having travelled to [Country 4]. She said this may have been prepared by the agent without reference to her.

   (o)  She was arrested when police raided a gathering at her home [in] December 2016. She was detained at [a] Detention Centre. There were 7 or 8 people at the gathering which occurred on a Tuesday evening. Her Husband was not present. He was working overtime. Her daughter was attending a separate Church gathering with her mother at that time. She was arrested because the gathering was illegal and she was an organiser or the ‘leading sister.’ She was scared but concerned for her brothers and sisters. At the detention centre, police questioned her in relation to how many people attended the gatherings, other locations, and links to overseas religions. She refused to answer their questions.

   (p)  She says she was beaten, spat at, slapped, had her hair pulled, kicked and punched whilst in detention. She was released after 6 days and warned not to attend church gatherings anymore.

   (q)  She was given a certificate at the conclusion of her detention. She provided a copy of the document. She says it was scanned to her by a family member in China. She states that she could not produce the original as the police would check the post and there would be consequences for her family.

   (r)   She spoke to the agent following her release from detention and made arrangements to travel to Australia.

   (s)  She follows the Bible and was able to state the basic tenets of her religious beliefs. Their Bible is translated directly from Greek.

   (t)   She is concerned about returning to China as she would keep practicing as a ‘true Christian’ and be punished.

2. [The second applicant] attended the hearing. He gave evidence which was generally consistent with the applicant’s. He confirmed that he was not present when the applicant was detained. He confirmed that the couple had resided in [Country 1] as stated. He says it is impossible for them to attend a registered church in China. In [Country 1], he says they spent ‘all day’ selling [products]. This was their job. He confirmed there was no local church, only a Catholic Church which he did not attend. They would pray at home and read the Bible when in [Country 1]. He was baptised in China as [an age] year old and his family is religious. He attends the Church in [City 1] with his wife.

3. [Witness A] was a refugee and is an Australian permanent resident. He has returned to China on occasion since his first arrival in 1997, most recently in January 2019. He was familiar with the applicant’s mother in China. He did not worship with the applicant in China, noting that she was younger and in a different section of a ‘youth group’. He confirmed the applicant attended the Church in [City 1] with her Husband. He says that he is not concerned about returning to China due to his Australian Permanent residency which gives him protection. He provided a written statement dated 15 July 2017.

1. The applicant provided further written statements in support of the application. The tribunal has read and had regard to these documents. The writers are [three names],11 July 2021 and a further statement dated 10 July 2021. The writer of which is indecipherable.

Country Information.

1. The DFAT Country Information Report on China dated 3 October 2019 is the most recent report on China and I have read and had regard to it. The following may be relevant to the applicant’s claims of persecution on account of his religious beliefs.[31]

RELIGION[32]

[32] Department of Foreign Affairs and Trade, DFAT Country Information: China (3 October 2019)

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

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

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

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

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

Government framework regarding religion 

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

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

3.39 Historically, the CCP’s United Front Work Department (UFWD), State Administration for Religious Affairs (SARA), and the Ministry of Civil Affairs provided policy guidance and supervision on the implementation of the regulations. However, in 2018 the CCP moved religious affairs under the direct purview of the UFWD, and thus the CCPs Central Committee. To ‘ensure centralised and unified leadership,’ the UFWD absorbed DFAT Country Information Report People’s Republic of China 25 SARA and has direct oversight of the State Ethnic Affairs Commission and the Overseas Chinese Affairs Office, and has been elevated to a level of importance not seen since 1949. 

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

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

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

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

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

3.45 Religious 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. 

3.46 Members 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 24 CCTV 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.

3.47 Regulations 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.’ 

3.48 DFAT is aware of reports of foreigners, including religious missions, being refused entry at churches due to pressure from local authorities. DFAT 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 tied to other ethnic, political and security issues. 

3.49 While the Constitution and 2018 RRA allow for sanctioned religious belief, DFAT assesses adherents across all religious organisations – from state-sanctioned to underground and/or banned groups - faced intensifying official persecution and repression in 2018, which continues in 2019. However, DFAT assesses that as Buddhism (as compared to Tibetan Buddhism) and Daoism are part of China ’s cultural heritage and are not associated with foreign influence, believers are unlikely to experience significant restrictions.

Christians

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

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

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

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

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

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

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

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

Other groups, including ‘cults’

3.93 The Criminal Law provides for prison sentences of up to seven years for individuals who use ‘superstitious sects, secret societies or evil religious organisations’ to undermine the state’s laws or administrative regulations. A 1999 judicial explanation refers to: ‘those illegal groups that have been found using religions, qigong [a traditional Chinese exercise discipline], or other things as a camouflage, deifying their leading members, recruiting and controlling their members, and deceiving people by moulding and spreading superstitious ideas, and endangering society.’ While the criminal provisions principally target Falun Gong, others who engage in practices deemed superstitious or cult-like can face harassment, detention and imprisonment.

3.94 In September 2017, the government published a list of 20 banned groups on its official Anti-Cult website ‘xie jiao’(cult) and launched an anti-cult platform on social media called ‘Say No to Cult,’ which includes a function for reporting suspicious activity. Eleven banned groups were listed as ‘dangerous’ on the xie jiao website: Falun Gong, Eastern Lightning (also known as The Church of Almighty God), The Shouters, The Disciples Society (or Mentu Hui), Unification Church, Guanyin Method Sect (Guanyin Famen or the Way of the Goddess of Mercy), Bloody Holy Spirit, Full Scope Church, Three Grades of Servants (or San Ban Pu Ren), True Buddha School and Mainland China Administrative Deacon Station. The xie jiao website also warned the public to ‘be on guard against’ an additional nine groups: the Lingling Church, the Anointed King, the Children of God, Dami Mission, the New Testament Church, the World Elijah Gospel Mission Society, the Lord God Sect, the Yuandun Dharma Gate, and the South China  Church.

3.95 Local authorities interpret ‘cult’ in different ways. Chinese government sensitivities towards religious cults have historical roots: religious cults led significant rebellions during the 19th century. Mainstream Christians tend to deride cults as heretics, but government crackdowns on ‘cults’ can affect unregistered mainstream Christian churches, as local officials may have difficulty distinguishing unregistered mainstream churches from cults

3.105The Shouters (also known as ‘Yellers’, ‘Local Church’, ‘Recovery Church’, ‘Assembly Hall’ and ‘Assemblies’) are a Chinese offshoot of Watchman Nee's Little Flock led by Nee's student, Changshou Li, otherwise known as ‘Witness Lee’. The Shouters were created in the US in 1962 and introduced to China in 1979. Witness Li created a ‘Recovery Bible’ by annotating the standard Bible and claimed that the gift of tongues could be taught, and that salvation could be had by saying ‘O Lord’ three times. The Shouters are named for their practice of stamping their feet while shouting as part of their worship. By 1983, the group had up to 200,000 followers across China.

3.106The CCP targeted the Shouters in the early 1980s as counter-revolutionary, and the Shouters splintered into several groups including Eastern Lightning (also known as the Church of Almighty God, see Eastern Lightning). DFAT is unable to verify the extent to which Shouters remain active in China.

1. Chinese law provides for foreign travel, emigration, and repatriation. A number of agencies within the Ministry of Public Security hold responsibility for monitoring entry and exit procedures at airports, including the Public Security Bureau, the Entry and Exit Authority, and the Frontiers Inspection Bureau. China’s major airports have a centralised system with name matching alert capabilities. Facial recognition technology is also widely deployed at all international checkpoints (air, land and sea). Security monitoring capabilities at airports are comprehensive, and departing passengers pass through several identity checks (including passport and ticket/boarding pass inspection) run by different agencies between arriving at the airport and boarding a flight. The government maintains an immigration exit control list.

2. Biometrics and fingerprinting is conducted at most airports, and the National Immigration Administration (NIA) has taken over from the bureau of entry and exit and is gradually mainstreaming management of regional airports. This is supported by AI enhanced security and surveillance capabilities (see Security Situation), and a document examination centre at Beijing airport with connectivity to all airports across the country.

Passports[33]

[33] DFAT Country Information Report China October 2019 [5.56] – [5.60]

1. According to the Passport Law (2006), ordinary passport applicants must apply in person to the Entry- Exit Control Department of the Ministry of Public Security or the authorised county-level bureau where their hukou is registered. Applicants must provide their RIC, hukou, recent photos, and documents substantiating the reasons for their application. Once approved, a passport is generally issued within 30 days. If a passport application is refused, reasons for the refusal are provided in writing and the applicant is informed of their right to apply for administrative reconsideration or to file an administrative lawsuit. Costs of passports vary according to location but are considered affordable.

2. An ordinary passport records the holder's name, sex, date and place of birth, the date of issue, term of validity and place of issue of the passport, and the issuing authority. The term of validity of an ordinary passport varies according to age of the passport holder. Passports are readable visually and by computer and contain anti-forgery properties. The sale or use of a forged passport is a criminal offence.

3. Under the Passport Law, authorities can refuse passports to people who ‘will undermine national security or cause major losses to the interests of the State’. According to Freedom House, the government has refused passports to millions of people on these grounds, many of them religious and political dissidents, including Uighurs and Tibetans. The government does not publish data on passport denials. DFAT is also aware security authorities have recalled and held Uighur and Tibetan passports (see Ethnic Uighurs, Muslims and Ethnic Tibetans).

Analysis and Findings.

1. The tribunal makes the following observations and findings:

2. I accept that the applicant is a Christian and a regular attendee at the Church in [City 1]. I accept the written evidence provided and the statement of [Witness A] in this regard.

3. I accept that the applicant is a citizen of the People’s Republic of China, and her identity is as set out in the application. I also accept the identity of the Secondary Applicant in accordance with the application.

4. China is the country of reference for the purpose of assessing his application against the criteria for the grant of a Subclass 866 visa.

5. I have some serious concerns in relation to the applicant’s overall credibility. Whilst the applicant may come from a Christian family in China, I consider that she has exaggerated the significance of her religious beliefs, and background in the Church, for the purposes of this application. I do not accept that she faces any real prospect of harm or persecution were she to return to China.

1. I accept that the applicant is a Christian and that she attends the Church in [City 1]. She produced documentation in support of this proposition, and I accept the evidence of her Husband and [Witness A] in this regard. However, I do not accept that the applicant was a member of the Local Church in China. Her evidence and conduct prior to arriving in Australia are not consistent with a person holding deep religious beliefs or hailing from a family where religion is a significant aspect of their lives.

1. The applicant’s claims of a strong family background in the local and family church do not ring true. I do not accept that she was a Christian. It follows that I do not accept that her family was a Christian family. I do not accept that a person, to whom being a member of a certain church or denomination is significant, would voluntarily move away from her home, to live in a country that has no connection to her Church, leaving her unable to attend Church at all. I do not accept that the applicant’s family, would arrange for such travel, if they the practice of religion had any real significance to them. During this time her religious observance was confined to praying at home with her Husband and [Relative A]. Her move to [Country 1] for such a significant period leads the tribunal to conclude that ties she or her family had to the local or family church were not significant at the time. I do not accept the applicant’s Husband’s evidence in relation to her religious practice in China in her youth. They were married in [Country 1] in 2012. He had no personal knowledge of her upbringing in China.

2. I do not accept the applicant’s evidence that she was a ‘leading sister’ in the church. If she was a Christian in China, her involvement was limited to that of an ordinary member of the church during a relatively short period. She displayed a rudimentary understanding of general Christian teaching; this is not surprising given that she attends the Church in [City 1] and has done so for some time. Her evidence of the nature and regularity of her religious observance in China was vague a difficult to follow.

1. Country information confirms that large numbers of Chinese citizens practice religion in registered and unregistered churches, including in Fujian. Small discreet gatherings in private homes are generally tolerated. The types of family gatherings that the applicant suggests she attended in China appear unlikely to raise her profile as a Church leader or cause concern to authorities. Country information confirms 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. Country information also refers to Chinese complex entry and exit procedures which make leaving the country difficult for persons concerning to authorities. Having regard to the applicant’s ability to travel abroad at will and obtain documents such as visas to Australia on relatively short notice, I do not accept that she had any sort of profile within the Local Church at the time she left China, and there is no evidence to suggest she currently has any sort of profile that would prevent her from returning.

2. I am concerned by the applicant’s inability to provide a reasonable explanation for her statements to the Department in relation to her visa application. These include statements to the effect that her passport was stolen in July 2016 which was inconsistent with her written application, which included copies of that passport. She also denied having travelled to [Country 5] or [Country 4], despite evidence to the contrary. Her explanation was that she had provided the relevant documentation to her agent, who appears to have fraudulently fabricated the visas, arrivals and departure stamps. Whilst this may be true, I do not consider her explanation mitigates the fact she was prepared to provide false information to the Department. This weighs against the application.

3. I reject the applicant’s claims in relation to the incident of harm she referred to in her evidence. I do not accept that the applicant was detained on account of her religious beliefs. I do not accept that that Certificate said to be provided upon her release from detention is genuine. The applicant was unable to provide the original document. Her reasoning was that her family members could not post it to her as the authorities may search the post and realise, she was applying for protection. I do not accept that a document, said to be freely provided by the authorities at the conclusion of her detention period, is a document of such a nature that its postage to Australia could cause her any real concern.

4. The applicant’s evidence in relation to her detention was generally consistent with her previous evidence regarding her arrest. She did not add any significant detail beyond her initial statement. Because of my concerns in relation to her credibility, I do not accept that she was detained due to her religious beliefs, or at all. It follows that I do not accept that she was assaulted on account of her religious beliefs or practice. The applicant’s Husband said that he was not present at the gathering when his wife was arrested. Consequently, he was unable to provide corroborative evidence in relation to her arrest. He says he was at work, working overtime on that night. The couple’s child was also absent from the home, attending another religious gathering with the applicant’s mother at that time.

5. I was not assisted by [Witness A’s] evidence in relation to the applicant’s time in China. [Witness A] was not in China during 2016 when the applicant returned from [Country 1]. He said he was familiar with the applicant’s mother. However, he confirmed that he had not attended Church with the applicant in China as she was part of the youth group, a different part of the Church. [Witness A] has resided in Australia since 1997, but has travelled to China on a number of occasions. I otherwise accept his evidence in relation to the applicant’s attendance at the Church in [City 1].

1. If the ability to practice one’s religion in a certain manner, or a certain church, were important to the applicant, I do not accept that she would have left China to live in [Country 1] for seven years, a country that has no connection to the local or family church. On the applicant’s evidence, supported by her Husband, there is no local church in [Country 1] and her practice of religion was confined to bible readings and prayers with her Husband and [Relative A] at home. It is reasonable to expect that a person of strong religious convictions would not voluntarily place themselves in a situation in which they were unable to practice their religion in the manner they claim is significant to them for an extended period.

2. Having regard to the evidence, I can see no reason why the applicant cannot return to China and practice her religion in the same manner in which she says she did during her time in [Country 1]. I do not accept there is any reason why the applicant needs to attend the Local or Family Church in China where, on her own evidence, she practiced her religion via prayer and hymns within the confines of her own home in [Country 1] over a period of seven years.

Factual Findings.

1. I make the following findings. In this case, the tribunal is satisfied that the applicant is a citizen of China and of his general personal background as described by the applicant in his evidence before the Tribunal, and the delegate and her original protection visa application. Having regard to all the evidence, In this respect the tribunal finds:

   (a)The applicant is a citizen of China and his identity is as set out in the application.

   (b)China is the country of reference for the purpose of assessing his application against the criteria for the grant of a Subclass 866 visa.

   (c)I am satisfied that the applicant is a Christian, although I do not accept that she was a Christian when she lived in China. If she was a Christian, her role was limited to that of an ordinary member of the Church.

   (d)The tribunal is not satisfied the applicant faces a real chance of serious or significant harm for the reasons claimed.

   (e)The tribunal is not satisfied that if the applicant returns to China, she has a well-founded fear persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion or that there is a real chance that, if they are returned to their home country, he would be persecuted for one or more of those reasons or that the real chance of persecution relates to all areas of China;

   (f)The tribunal is not satisfied the applicant has a well-founded fear of persecution;

   (g)The tribunal is not satisfied the applicant is a refugee in accordance with s.5H(1) of the Act; and

   (h)The Tribunal is not satisfied the applicant is a person in respect of whom Australia has protections obligations pursuant to s.36(2)(a) of the Act.

1. Accordingly, I find that there is no real chance of him being persecuted or suffering harm in the reasonably foreseeable future.

2. Considering the applicant’s individual circumstances on a cumulative basis, the tribunal finds there is no real chance that in the reasonably foreseeable future the applicant would be persecuted for any reason. Any fear the applicant has is not well founded as required by s.5J of the Act. Accordingly, the tribunal finds the applicant does not meet the refugee criterion.

Does the applicant meet the Complementary Protection Criterion?

1. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the tribunal has considered the alternative criterion on s.36(2)(aa). A person will meet the complementary protection criterion if they are a non-citizen in Australia in respect of whom the tribunal is satisfied that Australia has protection obligations because the tribunal 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 [they] will suffer significant harm.[34]

   [34] Migration Act 1958 (Cth), s 36(2)(aa)

2. ‘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.

3. 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.

4. The tribunal is not satisfied 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 any of the criteria in s.36(2).

5. For the reasons set out above, in particular in paragraphs 36-51 above, the tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to China, there is a real risk the applicant will suffer significant harm.

Conclusion

1. The tribunal is not satisfied that the applicant meets either the refugee criterion or the complementary protection criterion.

Secondary Applicant.

1. In circumstances in which the primary applicant does not meet the relevant criteria, the Secondary Applicant also fails to meet that criteria.

DECISION

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

Dominic Triaca
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.

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1. Protection visas – criteria provided for by this Act

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1. A criterion for a protection visa is that the applicant for the visa is:

   (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

   (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (a); and

   (ii)holds a protection visa of the same class as that applied for by the applicant; or

   (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (aa); and

   (ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

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