1812711 (Refugee)

Case [2024] AATA 2314

1812711 (Refugee) [2024] AATA 2314 (20 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1812711

COUNTRY OF REFERENCE:                   China

MEMBER:Shahyar Roushan

DATE:20 June 2024

PLACE OF DECISION:  Sydney

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 20 June 2024 at 12:41pm

CATCHWORDS

REFUGEE – Protection Visa – China – religion – a member of the Local Church – fear harm for breaching China’s family planning regulations by giving birth to a child out of marriage – applicant would be forced to conceal his religious beliefs in a school environment – effective state protection against the harm the applicant fears is not available – applicant has a well-founded fear of persecution – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 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

BACKGROUND

  1. The applicant is [age]years old. He was born in Australia. His parents are nationals of China. The applicant’s father, Mr [A], arrived in Australia in January 2005, and his mother, Ms [B], arrived in September 2007.

  2. On 15 August 2012, the applicant’s parents applied to the then Department of Immigration for protection visas. Their first son and the applicant’s older brother, [Master C], who was born in Australia on [date], was added to his parents’ protection visa application.

  3. The protection visa application was made on the basis of claims made by [Ms B] to fear persecution in China for the reason of her religion as a member of the Local Church. She also claimed to fear harm for breaching China’s family planning regulations by giving birth to a child out of marriage. [Mr A] initially made no substantive claims in his protection visa application but subsequently claimed to fear harm on the basis of his membership of the Local Church. It was also claimed on behalf of the applicant’s brother that he fears harm in China as a ‘black’ child and because of his Christian beliefs.

  4. On 20 February 2013, a delegate of the Minister refused the application, and on 27 November 2013, the former Refugee Review Tribunal (RRT) affirmed the decision not to grant the applicant’s parents and his brother protection visas.

  5. On 25 January 2018, an application for a protection visa was lodged on behalf of the applicant by [Ms B].

  6. On 20 April 2018, a delegate for the Minister of Home Affairs refused to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). This is a review of the delegate’s decision by the Administrative Appeals Tribunal (the Tribunal).

    CLAIMS AND EVIDENCE

    Protection visa application

  7. In a Statutory Declaration, declared…

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1812711 (Refugee) [2024] AATA 2314
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[2024] AATA 2314
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CaseChat Overview and Summary

The Administrative Appeals Tribunal (the Tribunal) reviewed a decision by a delegate of the Minister of Home Affairs to refuse the applicant a protection visa. The applicant, through his mother, claimed a well-founded fear of persecution in China due to his religious beliefs and his mother's association with the Local Church, which was considered an "evil cult" by Chinese authorities. The applicant also feared harm due to his mother having children out of wedlock, which would contravene China's family planning regulations.

The Tribunal was required to determine whether the applicant had a well-founded fear of persecution for reasons of religion, and whether effective state protection was available to him in China. Specifically, the Tribunal had to consider the applicant's vulnerability as a child and whether the feared harm amounted to "serious harm" under the Migration Act 1958 (Cth). The Tribunal also considered the impact of China's "Patriotic Education Law" and other measures on religious education for minors.

The Tribunal found that the applicant's claimed fears were inextricably linked to his mother's situation. It accepted that the applicant, having lived in Australia and been immersed in Christianity, would likely be unable to conceal his religious beliefs in a Chinese school environment. The Tribunal considered extensive country information detailing the severe restrictions on religious education for minors in China, including mandatory patriotic education, prohibitions on religious instruction, and the risk of harassment, bullying, and discrimination. It concluded that the applicant, due to his young age and religious identity, faced a real chance of suffering serious harm, and that effective state protection was unavailable. The essential and significant reason for the feared persecution was identified as the applicant's religion.

Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies the criterion under s 36(2)(a) of the Migration Act, meaning Australia has protection obligations towards him because he is a refugee.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

On 20 April 2018, a delegate for the Minister of Home Affairs refused to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). This is a review of the delegate’s decision by the Administrative Appeals Tribunal (the Tribunal).CLAIMS AND EVIDENCEProtection visa application In a Statutory Declaration, declared by [Ms B] on 25 January 2018, she responded on behalf of the applicant to questions in the protection visa application in relation to his reasons for claiming protection in Australia. [Ms B] provided the following information in her Statutory Declaration. [Ms B] was born in China on [date], in [Village 1], [Town 1] Town, Fuqing City, Fujian Province. She studied at [Village 1] Primary School for six years and at [Town 1] Middle School for three years. She subsequently attended [a] School. She arrived in Australia on [date]September 2007 when she was [age] years old to continue her studies. In Australia, she met her husband, [Mr A]. While attending [Town 1] Middle School, [Ms B] formed a friendship with a classmate, Ms [D], and they remained in contact. In 2014, Ms [D]’s boyfriend died as a result of a heart attack, prompting her to return to [Village 1] Village where she was supported by ‘many Christians’ from the Local Church. Ms [D] became a Christian in 2015 and was subsequently asked by the Local Church to organise ‘training classes’, teaching the villagers how to read and write. Ms [D] used this opportunity to evangelise to the villagers. She also organised a Bible study group for the children of the Christian families in the village to study the teachings of the Local Church. From 2016 to 2017, [Ms B] supported Ms [D]’s activities by sending her books, such as ‘[Book 1]’. However, the Chinese government introduced ‘much tougher measures to crack down on the underground churches’ in 2017. These measures particularly affected the Local Church, which was regarded as an ‘evil cult’ by the Chinese authorities. In December 2017, Ms [D] came to the ‘particular attention’ of the Public Security Bureau (PSB) and was arrested due to her activities. She was tortured by the police and ‘confessed everything’, disclosing to the authorities that [Ms B] had sent her copies of ‘[Book 1]’. On 3 January 2018, [Ms B]’s parents’ home was raided by the police. Her parents were taken to the PSB and interrogated. Since then, [Ms B] has been labelled an ‘Evil Cult activist who will seriously jeopardise state security’ and she is at risk of being arrested and imprisoned if she were to return to China. She is concerned that other members of her family, including the applicant, would be implicated in her case and harmed as a result. [Ms B] further stated that despite changes to the family planning laws in China, she is still concerned that she has ‘violated the relevant regulation’ by having children out of wedlock. This means that she would be required to pay social compensation fees if the family were to return to China and the applicant would be unable to ‘have access to normal education system and public health service’ and ‘it will be impossible for him to survive in China’. The interview

Decision

Reasons for decision

An October 2023 article by the Pew Research Center noted:Children under 18 are constitutionally prohibited from having any formal religious affiliation in China. There is also a ban on religious education, including Sunday schools, religious summer camps and other forms of youth religious groups. Schools focus on promoting non-religion and atheism, and many children join CCP‑affiliated youth groups, where they must pledge commitment to atheism.[5][5] 10 things to know about China’s policies on religion', Pew Research Center, 23 October 2023, >Christian advocacy organisation, Open Doors, identified two broad areas in which the children of Christians have been impacted in their 2022 reporting period:… Parents have been hindered in raising their children according to their Christian beliefs … As indicated above, in some parts of China, children have been set under pressure to tell teachers (who in turn have been pressured by their superiors, see Block 2.8 above) and the local authorities if their parents are active adherents of a specific religion. The CCP goes to great lengths to encourage an anti-religious mindset in children and warns that religious activities are to be regarded as illegal behavior. Strong atheistic education and promotional opportunities based on a young person's loyalty to the CCP, as well as restrictions on minors attending church, make it difficult for Christian parents to raise their children according to their Christian beliefs. Another area where the CCP places a lot of emphasis is on influencing the younger generation to fully take on board Communist culture. It is therefore of no surprise that home-schooling is totally illegal, as is religious instruction for minors under the age of 18 (Christianity Today, 7 April 2022). Christian parents looking for ways for their children to avoid imbibing CCP ideology in the state education system have no real options. Although international and private schools exist, they are heavily restricted and financially inaccessible for most families (South China Morning Post, 5 December 2021). For converts from Muslim or Buddhist background, members of their wider family will try to influence the education of their children. … Children of Christians have been harassed or discriminated against because of their parents’ faith …If children remain strong in their Christian faith, despite being constantly taught otherwise, teachers (and peers) discourage them from attending Christian activities in order to avoid pressure from superiors. Religious books are seen as "reactionary readings" and students are strongly discouraged from reading them. By law, all children are required to attend state school education according to the 9-year free education scheme. This policy has been very strictly implemented by the authorities. Reportedly, a new survey form investigates the religious affiliation of college students and graduates in China and prohibits them from expressing any religious convictions at all (China Aid, 27 May 2022). Young people in some areas have been threatened with not being allowed to graduate or not being accepted for further studies. This pressure is even stronger on children of known converts.The China Aid ‘Annual Persecution Report’ for 2021 referred to examples of children being present during raids of house churches, including one where a child was struck on the head by a water bottle during a raid on the Early Rain Convent Church and 10 children (along with 18 adults) were taken to the police station by bus.[6] China Aid’s 2022 Report also included references to a number of cases in which children were located by the authorities in house churches, including taking a nine-year-old child to the police station in Shilpa for interrogation, ‘reportedly traumatising the child with intimidation’. In another case, a parenting event organised and attended by 70 Christians from Linfen Covenant House Church was raided by more than 100 police officers, detaining children for a few hours. In another raid on Beijing Zion Church’s subsidiary church in Mentougou District, the police ‘seized nine Christians and two children’.[7] The organisation’s 2023 Report referred to further instances of harassment and monitoring by the authorities, including sending letters to parents of kindergarteners asking them to pledge to not believe in religion, issuing data collection surveys on the religious beliefs of students and their family members in elementary and high schools, interfering with church-sponsored education and youth activities, raiding Christian schools and co-op groups attended by children, and imposing restrictions on Christmas celebrations in schools and businesses.[8][6] 'ChinaAid’s Annual Persecution Report 2021', China Aid Association, 1 March 2022, ‘ChinaAid's Annual Persecution Report 2022', China Aid Association, 14 February 2023, [8] 'ChinaAid’s Annual Persecution Report 2023', China Aid Association, 1 March 2024, >In January 2024, China’s ‘Patriotic Education Law’ came into effect. This new law aims to strengthen patriotism and loyalty to the CCP across all sectors of society, including religious groups and education institutions.[9][9] China’s New Patriotic Education Law Tightens Grip on Church Leaders, Persecution.org, 17 January 2024, Hu Zimo, China: Guidelines Instruct Religions How to Implement the New Patriotic Education Law, Bitter Winter, 12 January 2024, and Lin Ganfeng, China's Patriotic Education Law Further Cracks Down on Religious Freedom, VOA, 5 January 2024, The law requires religious groups to adapt their educational activities to promote the CCP’s official ideology and ‘sinicize’ religions to align with socialist values[10] and mandates that religious staff and followers must enhance their ‘patriotic sentiment’ and awareness of the primacy of state laws over religious rules.[11] The law also places significant restrictions on children’s religious education. It tightens the CCP’s control over religious groups and aims to instil party loyalty in religious believers from a young age, severely limiting religious education opportunities for children.[12] The law states that schools must incorporate patriotic education across all subjects and grades, including trips to ‘patriotic education sites’.[13] Religious groups are prohibited from providing religious instruction to minors under 18, such as Sunday schools or youth camps. Local authorities in some regions have explicitly banned minors from entering churches and imposed heavy fines for holding religious youth activities.[14][10] Matthew Santucci, China’s new ‘Patriotic Education Law’ places further limits on religious instruction, CAN, 9 November 2023, [11] Hu Zimo, China: Guidelines Instruct Religions How to Implement the New Patriotic Education Law, Bitter Winter, 12 January 2024, China’s New Patriotic Education Law Tightens Grip on Church Leaders, Persecution.org, 17 January 2024, Lin Ganfeng, China's Patriotic Education Law Further Cracks Down on Religious Freedom, VOA, 5 January 2024, [13] Chris Lau and Simone McCarthy, China feels the country isn’t patriotic enough. A new law aims to change that, CNN, 6 January 2024, Lin Ganfeng, China's Patriotic Education Law Further Cracks Down on Religious Freedom, VOA, 5 January 2024, Sources consulted by the Tribunal confirm that as a consequence of these measures, children of members of underground or unregistered churches in China face significant discrimination and challenges in the education system, including marginalisation and stigma from teachers and school authorities, being excluded from activities and being forced to renounce their faith.[15][15] See China’s War on Children’s Faith, Christian Freedom International, 15 October 2020, Young Christian Banned from Celebration in School, Bitter Winter, EF Gregory, China’s Public Schools Are Failing Christian Families, Christianity Today, 7 April 2022, China’s Public Schools Are Failing Christian Families | Christianity Today; Lydia Blaha, CHINA – Chinese Christian children face bullying, discrimination from Communist gov’t, schools, Christian Persecution Mews (Blog), 6 October 2020, CHINA – Chinese Christian children face bullying, discrimination from Communist gov’t, schools – Christian Persecution News. Regarding the Local Church, in its 2021 China Country Information Report, DFAT noted that the term ‘Local Church’ refers to descendants of a Christian-based religious movement from the 1960s. The group has experienced multiple splits and schisms and they are often collectively referred to as ‘Shouters’, which is sometimes used as a pejorative by critics or the government. DFAT also noted that Shouters are not as actively pursued in China as they once were, and they may not, in practice, be considered or treated as a xie jiao. The report, however, acknowledged that different sources offer conflicting information in relation to the delisting of Shouters as xie jiao. Nevertheless, DFAT assessed that: a person who attempts to proselytise for a church or is seen as active within a church that is identified by authorities as a ‘Shouter’ church faces a high risk of official discrimination. Local Church members do not attract the same amount of attention as Falun Gong or The Church of Almighty God, but DFAT notes inconsistent sources and information. DFAT assesses that identification as a ‘Shouter’, regardless of which church an adherent belongs to, may still lead to government attention, including imprisonment under the same provisions of law as other xie jiao.[16][16] DFAT, DFAT Country Information Report – China, 22 December 2021.According to the US Department of State, however, the Chinese government characterises a number of Christian groups as ‘cult organizations’ or xie jiao, including the Shouters. The 2022 International Religious Freedom Report referred to the human rights publication Bitter Winter, which stated ‘the regime increasingly classified as xie jiao any group the CCP perceived as hostile to the regime, and courts “increasingly interpret the category by including in it even groups that are not part of the official list of the xie jiao”’.[17][17] International Religious Freedom Report 2022 - China (Including Hong Kong and Macau), US Department of State, 15 May 2023, I find that if the applicant were to return to China he would attend a state school. Homeschooling is illegal and an international or private school is not a readily available or affordable option for his parents. I accept [Ms B]’s evidence that the applicant would be forced to conceal his religious beliefs in a school environment. However, I’m also of the view that it would not be possible for a young child, such as the applicant, who has spent all of his life in Australia, has been immersed in Christianity and has only attended a Catholic school, to do so. I find it highly likely that the applicant would seek to give expression to his identity and beliefs as he understands them in one way or another, particularly to peers or teachers in a school environment. Having regard to the country information set out above, I find that there is a real chance that the applicant would be subjected to harassment, verbal and physical abuse, bullying, intimidation and humiliating treatment in a school environment. I further find that there is a real chance that the applicant would be subjected to harassment and intimidation by the local authorities should he be discovered in the company of his parents at Local Church gatherings or other related activities. In assessing the seriousness of the harm, I have had regard to the applicant’s particular vulnerability associated with his very young age.[18] I find that the applicant would be impacted by the harm identified differently, elevating the harm to serious harm under s 5J(4)(b) of the Act. In reaching this view, I have also considered the Department’s Refugee Law Guidelines, which state that an applicant’s personal attributes are relevant in determining whether harm amounts to ‘serious harm’ under the Act. In particular, the Guidelines refer to the UNHCR Guidelines on Child Asylum Claims in describing the vulnerabilities of children, including the impact psychological harm may have on a child.[19] I am satisfied that the real chance of persecution relates to all areas of China.[18] See AGA16 v MIBP [2018] FCA 628. See also SZTEQ v MIBP (2015) 229 FCR 497 and SZBQJ v MIMIA [2005] FCA 143.[19] Department of Home Affairs, Refugee Law Guidelines, sections 3.11.7 and 3.11.9, as reissued 27 November 2022.I find that the essential and significant reason for the persecution feared by the applicant is his religion. I am further satisfied that the applicant could not take reasonable steps to modify his behaviour so as to avoid a real chance of persecution. I find that effective state protection against the harm the applicant fears is not available to him in China. I find that the applicant has a well-founded fear of persecution. I find that there is no presently existing right, however expressed, for the applicant to enter and reside in any other country. Section 36(3) therefore does not apply.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).DECISIONThe Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.Shahyar RoushanSenior MemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…

Ratio Decidendi

Legal Principle Established

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, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.Analysis, reasons and findings For the following reasons, I have concluded that the decision under review should be remitted for reconsideration. In this matter, the applicant’s claimed fears of harm are inextricably linked to his parents’, and more specifically his mother’s, fears of harm. The applicant’s parents are not included in the application under review. As noted above, their own application for protection visas was refused by the Department and that decision was affirmed by the RRT on 27 November 2013. Nevertheless, before I assess the claims made on the applicant’s behalf by his mother, it is necessary for me to determine whether or not I accept the applicant’s parents’ claims of harm in China, upon which the applicant’s claims rest. In essence, [Ms B] had previously claimed that she had been involved with a branch of the Local Church in China from a young age and that she and her parents attended gatherings of this church. The RRT was prepared to accept these claims. The RRT was also prepared to accept that she may have involved herself with the Local Church in Australia at some level following her arrival. The RRT, however, did not find credible [Ms B]’s claims that she or other members of her family ever suffered harm because of their involvement with a branch of the Local Church in their village. More specifically, the RRT rejected [Ms B]’s claim that her mother had been arrested and detained by the authorities as a consequence of her involvement with the same branch of the Local Church. The contents of [Ms B]’s Statutory Declaration of 25 January 2018 in connection with the present application build upon claims she had previously made to the Department and the RRT in relation to her religious beliefs and practices in China. At the core of her more recent evidence was her claim that she had sent Christian books to China to support her friend’s religious activities. Her friend was subsequently arrested and disclosed to the authorities under duress that [Ms B] had sent her copies of ‘[Book 1]’. This admission had led to the home of [Ms B]’s parents being raided and her parents being interrogated in January 2018, further implicating [Ms B] and, by extension, other members of her family.