1813845 (Refugee)

[2019] AATA 4967

1813845 (Refugee) [2019] AATA 4967 (12 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1813845

COUNTRY OF REFERENCE:                  China

MEMBER:Denis Dragovic

DATE:12 November 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 12 November 2019 at 9:14am

CATCHWORDS
REFUGEE – protection visa – China – Federal Circuit Court remittal – particular social group – Uighur who have studied abroad – protesting for the rights of Uighurs in Australia – failure to spy on the Uighur diaspora in Australia – of interest to the authorities – detention and re-education camp – discriminatory laws – ‘appropriate and adapted’ – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Applicant S v MIMA (2004) 217 CLR 387
MZQAP v MIMIA [2005] FCAFC 35

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of China, applied for the visa on 7 March 2014 and the delegate refused to grant the visa on 13 August 2015.

3. The Tribunal viewed a copy of the applicant’s passport and accepts that he is a citizen of China.

4. The matter is before this Tribunal following a remittal by consent for the reason that the previous Tribunal did not consider an integer of the claim, namely the harm the applicant would face if he were to continue to be politically active upon return to China.

5. The applicant was invited to appear before the Tribunal on 24 October 2019 to give evidence and present arguments. The representative lodged a substantial submission with the Tribunal on 22 October 2019. The material was not available to me as the member until 23 October 2019. The Tribunal has a long standing Practice Direction given under s.18B of the Administrative Appeals Tribunal Act 1975 stating the following:

   5. Giving submissions and evidence to us

   5.1 You are expected to:

   (b) lodge any additional submissions or documentary information, which were not earlier available, no later than seven days (or no later than one day for detention cases) before any scheduled hearing

6. As a result of this late submission I cancelled the hearing.

7. The applicant was represented in relation to the review by his registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

9. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

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

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

11. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

12. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Evidence and findings of fact

13. The applicant claims that he is an ethnic Uighur from [Village 1] in Gjulja province of Xinjiang, China, who practices Islam. The applicant claims to have paid a bribe to obtain a passport in 2009. He states that he fled China because of the abuse, mistreatment, discrimination and inhuman treatment he faced at school, work and in society more broadly.

14. The applicant described how when he was young the authorities restricted his ability to learn and practice his religion by imprisoning the Imam for two years and making his parents sign a commitment not to send the applicant to classes to learn his religion. He recalls being forced to eat during Ramadan and not being allowed to go to a mosque.

15. While at high school the applicant described his experiences of being singled out for additional work when students were required to participate in the annual cotton harvest.

16. During a military camp the applicant detailed how he was physically beaten by military personnel and abused because of his ethnicity. In addition he was tasked with cleaning a pigsty.

17. The applicant detailed other discriminatory treatment including by shop owners not selling him food, being barred from speaking his language in private while at work, and difficulty accessing a passport and departing his home area.

18. The applicant returned to China twice, first in June 2012, staying for one month, followed by a three month stay beginning in November 2013, since coming to Australia on a student visa. He claimed that he has been repeatedly questioned upon return to China. He claims that he was forced to commit to collect information about the Uighur community in Australia, which he has not done.

19. The applicant claims that he has participated in protests in front of the Chinese consulate in Australia regarding the treatment of Uighurs in 2012 and 2013 (some photos were provided) as well as welcoming the leader of the World Uighur Congress at Melbourne Airport. The applicant has also contributed to his community by way of helping to build a Turkish Mosque in [Suburb 1] and donating money to a Uighur foreign assistance support group. He claims to have ceased such activities because of health issues including requiring [surgical intervention] in 2015. In October 2017 he had a serious workplace accident.

20. The applicant submitted a letter of support from [Mr A], Uyghur Association of Victoria dated 1 March 2017, in which the author states the applicant’s political activities in Australia and lists his concerns for the applicant if he was to return to China.

    Current situation in Xinjiang, China

21. In considering the applicant’s case it is important to review the current circumstances of ethnic Uighurs who live in China’s Xinjiang Uighur Autonomous Region in detail.

22. According to the DFAT Country Report on China:

    3.6 Uighurs are an ethnically Turkic, predominantly Muslim people native to Central Asia (see Muslims). Uighurs are predominantly Sunni Muslims, but also identify themselves according to a secularised cultural identity and, in some cases, traditional Sufism.

    3.7 The estimated 11 million Uighurs in China live mostly in the southern, poorer areas of the Xinjiang Uighur Autonomous Region (XUAR, Xinjiang, the only Muslim-majority province), as well as in Gansu, Qinghai, Tibet and Hunan.

    3.9 There is considerable international concern regarding the treatment of Uighurs in Xinjiang. In September 2018, the UN Committee on the Elimination of Racial Discrimination (CERD) reported over one million people, including large numbers of ethnic Uighurs and other Muslim minorities, had been detained in political and cultural re-education centres in Xinjiang. The Australian Strategic Policy Institute has produced a map, informed by satellite imagery, detailing the locations of re-education centres in Xinjiang. While the government denied these claims, in October 2018, the Xinjiang government issued regulations regarding the use of ‘vocational skills and educational training centres’ to ‘counter extremism’ though ‘transformation.’

    3.10 UN CERD has also expressed concern over claims of human rights abuses in Xinjiang, including:

    ·people being held in incommunicado detention without being charged or tried, often for long periods, under the pretext of countering religious extremism;

    ·mass surveillance disproportionately targeting ethnic Uighurs, including frequent police stops, scanning of mobile phones at police checkpoint stations, and mandatory collection of extensive biometric data of Uighur residents (including DNA samples and iris scans);

    ·imposition of travel restrictions (as detailed above), including on those wishing to travel for religious purposes;

    ·cases of Uighurs who had left China allegedly returned against their will, with fears for their safety, and;

    ·banning of Uighur language education from schools (sources report this change to the language of educational instruction has generalised across Xinjiang).

    3.13 The government has carried out high-profile prosecutions of persons with suspected links to violent incidents. These have included mass arrests, mass trials and mass sentencing. Sentences have included the death penalty and executions have been carried out. Some Uighurs have received lengthy sentences for their political views: a prominent Uighur academic, Ilham Tohti, has been serving a life sentence since 2014 for alleged separatism for advocating on social media greater cultural and religious autonomy for Uighurs. Others have reportedly received lengthy prison sentences for conducting religious activities that have included circulating passages from the Koran, praying in groups, and observing Ramadan.

    3.15 In November 2016, the government confiscated the passports of all Uighurs in Xinjiang…The government has also increased efforts to surveil and control the Uighur diaspora: Chinese authorities ordered Uighurs studying abroad to return by May 2017 and…Media reports claim some returning Uighur students were detained in re-education centres, and some died in custody. Chinese security agencies have also allegedly detained family members of Uighurs living abroad, in some cases to force returns.

    3.16 Dependent on the level of perceived threat and based on factors programmed into the IJOP [Integrated Joint Operations Platform] system, an individual’s freedom of movement can be restricted. Restrictions include detention in re-education centres, house arrest, not being allowed to leave a registered location, not being allowed to enter public spaces or not being allowed to leave China.

    3.19 DFAT assesses that Uighurs in Xinjiang and in other parts of China face a high risk of official discrimination due to their ethnicity, particularly where authorities perceive them to be politically or religiously active.[1]

    [1] Department of Foreign Affairs, DFAT Country Information Report: China, 3 October 2019

23. Amnesty International[2] notes that the Xinjiang government enacted the ‘De-extremification Regulation’ prohibiting behaviours including denigrating or refusing to watch public radio and TV programmes, wearing burkas and having an “abnormal” beard. The government was also reported to have published a list of prohibited names, most of which were Islamic in origin, and required all children under 16 with these names to change them. Amnesty International reported that six students studying abroad who were forced to return were given prison sentences ranging from five to 12 years on undefined charges. In April, Chinese authorities detained relatives of several students in Egypt to coerce them to return home by May. Reports were received that some who returned were tortured and imprisoned.

    [2] Amnesty International, China 2017/2018 Report, >

    Human Rights Watch reports that credible estimates indicate one million people are being indefinitely held in camps and forced to learn Mandarin Chinese, praise the government and party, and abandon many aspects of their distinct identity. Those who resist or are deemed to have failed to “learn” are punished:

    They have also subjected people in Xinjiang to pervasive surveillance. Authorities employ high-tech mass surveillance systems that make use of QR codes, biometrics, artificial intelligence, phone spyware, and big data. And they have mobilized over a million officials to monitor people, including through intrusive programs in which officials regularly stay in people’s homes.[3]

    [3] Human Rights Watch, China: Events of 2018, >

    The United States Deputy Assistant Secretary Scott Busby provided testimony to a Congressional Sub-Committee based upon government assessments and open source reporting stating:

    Since April 2017, Chinese authorities have detained at least 800,000, and possibly more than 2 million, Uighurs and members of other Muslim minorities in internment camps for indefinite periods of time…Reports suggest that most of those detained are not being charged with crimes, and their families lack information about their whereabouts, their well-being, and for how long they will be held. The reasons given for detention appear to vary widely; in some cases, police have claimed they are detaining someone merely because they travelled abroad, or because they have family abroad. There appears to be no ability to contest such detention.[4]

    [4] Testimony of Deputy Assistant Secretary Scott Busby Senate Foreign Relations Committee, Subcommittee On East Asia, The Pacific, And International Cybersecurity Policy December 4, 2018 >

    There have been reports of children being involuntarily separated from families and placed into state run orphanages[5], beatings and food deprivation if detainees in the so called ‘re-education’ camps don’t quickly learn what is being taught along with reports of sexual abuse including rape, restrictions on the practice of peoples’ faith, and being forced to drink alcohol and eat pork[6], families being forced to accept strangers to stay in their homes through a massive campaign involving hundreds of thousands of Communist Party cadres to monitor Uighur activities,[7] some being arrested for praying,[8] Uighurs under 40 years of age being pre-emptively targeted for re-education because of a presumption that they are susceptible to extreme thoughts[9], relatives of prominent Uighur voices abroad being detained for years with intimidatory tactics used[10] and reports of new ‘offences’ including travelling abroad, having relatives in foreign countries and wearing headscarves.[11] 

    [5] Human Rights Watch, ‘China: Xinjiang Children Separated from Families’, 15 September 2019

    [6] Testimony of Deputy Assistant Secretary Scott Busby Senate Foreign Relations Committee, Subcommittee On East Asia, The Pacific, And International Cybersecurity Policy December 4, 2018 see also Zamira Rahim, ‘Prisoners in China’s Xinjiang concentration camps subjected to gang rape and medical experiments, former detainee says’ Independent, 22 October 2019, Darren Byler, ‘China’s Nightmare Homestay: In Xinjiang, unwanted Chinese guests monitor Uighur homes 24/7’ Foreign Policy, 26 October 2018 BBC, ‘Xinjiang: China, where are my children?’ 4 July 2019, China's problem with the Uighurs’, The Times (UK), 21 August 2018, CXBB8A1DA34022 

    [10] ‘To suppress news of Xinjiang’s gulag, China threatens Uighurs abroad’, The Economist, 24 October 2019, China's problem with the Uighurs’, The Times (UK), 21 August 2018, CXBB8A1DA34022

24. The surveillance app which some ethnic Uighur residents are required to install onto their phones includes negative assessments for individuals who have stayed overseas for an extended period of time.[12]

    [12] Human Rights Watch, China’s Algorithms of Repression: Reverse Engineering a Xinjiang Police Mass Surveillance App, 1 May 2019, >

    The Australian government has co-signed a letter along with 21 other countries which was sent to the United Nations Human Rights Council condemning the actions of Beijing. Specifically, the letter states:

    We, the co-signatories to this letter, are concerned about credible reports of arbitrary detention in large-scale places of detention, as well as widespread surveillance and restrictions, particularly targeting Uighurs and other minorities in Xinjiang, China.[13]

    [13] Human Rights Watch, Joint Statement, >

    While the picture that forms from the reporting of international human rights organisations, United States and Australian governments and journalists is of extensive and severe human rights abuses, few have full access to Xinjiang. As such I have also turned to Chinese government reporting.

25. The Xinjiang government chief on counterterrorism, vocational education and training, Shohrat Zakir, was interviewed on the situation in Xinjiang and asked about the activities and purposes of the government’s actions:

    Facing complex and grave circumstances as well as the pressing anti-terrorism desire of the people, the Chinese government has resolutely taken measures in preventing and combating violent terrorist crimes in accordance with the law. Public security has notably improved with religious extremism effectively contained, while people are now feeling more secure. We have laid a good foundation for completely solving the deeply-rooted problems that affect the region's long-term stability.

    …

    Based on its own realities, Xinjiang has given equal importance to fighting and preventing terrorism, and sought to combine the fight against violent terrorist crimes with the protection of human rights. On one hand, Xinjiang has put emphasis on strictly countering a small number of violent terrorist crimes according to law, and spared no efforts in protecting the basic human rights of the citizens from the harm of terrorism and extremism. On the other hand, Xinjiang has also stressed addressing the root cause of terrorism, and moved to bring around, educate and save the majority of those who committed petty crimes, through assistance and education, to prevent them from becoming victims of terrorism and extremism.

    …

    In the process of learning and training, the trainees will advance from learning the country's common language, to learning legal knowledge and vocational skills. Firstly, the trainees will take learning the country's common language as the basis to improve their communication abilities, gain modern science knowledge and enhance their understanding of Chinese history, culture and national conditions. The teaching follows standardized plans, textbooks, materials and systems. The trainees are taught in various methods suited to their literacy to raise their abilities to use the country's common language as soon as possible. Secondly, the learning of legal knowledge is taken as a key part of cultivating the trainees' awareness of the nation, citizenship and rule of law. Legal experts are hired to lecture on the Constitution, the criminal law and the civil law, etc., and judges, prosecutors and lawyers are invited to teach the criminal law, the law on public security administration, the anti-terrorism law, the marriage law, the education law and Xinjiang's de-extremization regulations. Thirdly, vocational learning is taken as a key way to help trainees find employment. Courses on clothing and footwear making, food processing, electronic product assembly, typesetting and printing, hairdressing and e-commerce have been set up to suit local social needs and job market. Multi-skill training is provided to trainees who have the desire and capability to learn, so that they acquire one to two vocational skills upon graduation. Businesses in garment making, mobile phone assembly and ethnic cuisine catering are arranged to offer trainees practical opportunities. In the meantime, they are paid basic incomes and a bonus. The mechanism has taken shape in which the trainees can "learn, practice and earn money."[14]

    [14] Xinhua News Agency, ‘Interview with Xinjiang government chief on counterterrorism, vocational education and training’, China Daily, 17 October 2018, type="1">

    I also consulted the Chinese government’s response to the Office of the High Commissioner for Human Rights Universal Periodical Review of China. The report does not mention Uyghurs specifically but notes under the section, ‘rights of ethnic minorities’:

    Xinjiang has been carrying out “Year of Building People’s Livelihood” initiatives continuously since 2013, accounting for more than 70 per cent of its annual public budget expenditure. In 2017, the per capita disposable income of urban and rural residents in Xinjiang increased by 8.1 per cent and 8.5 per cent respectively, and urban and rural residents’ per capita housing area reached 85 square metres and 105 square metres respectively. The 15 years’ free education programme has been implemented in southern Xinjiang, along with 3 years’ free bilingual preschool education in rural areas.

    According to the DFAT report Chinese authorities are justifying these security measures based upon a need to curb extremism and prevent terrorists from travelling to the Middle East. Human Rights Watch adds that Xinjiang authorities use extensive surveillance to counter what are referred to as ‘the three [evil] forces’—separatism, terrorism, and extremism.[15] Xu Jianying, a researcher at the Chinese Academy of Social Sciences was reported to have explained that counter-terrorism and de-extremization are related to the basic human rights of people of all ethnic groups in Xinjiang, including the right to survival and development. He said, ‘In light of China's national conditions, it is wise to explore and innovate policies against terrorism and extremism in a practical and innovative way and formulate measures tailored to local conditions.’ Similarly, Zuliyati Simayi, dean of the School of Marxism at Xinjiang University explained this balancing act as:

    At present, China is making great efforts to develop various undertakings in Xinjiang, effectively safeguarding the right of people of all ethnic groups to participate in development on an equal footing and share the fruits of development, so as to make new progress in human rights in Xinjiang.[16]

    [15] Human Rights Watch, China’s Algorithms of Repression: Reverse Engineering a Xinjiang Police Mass Surveillance App, 1 May 2019, ‘Chinese experts, scholars brief journalists on Xinjiang, Hong Kong, Tibet’ Xinhua, October 27 2019 >

    In considering the two competing accounts of the circumstances in Xinjiang I am mindful not only of access issues which should, all other things being equal, favour China’s reporting, but also the reality of limited press freedoms and very low levels of transparency which weigh against the Chinese reporting. China is ranked 177 out of 180 countries for press freedom by Reporters Without Borders and Transparency International gives China a corruption score of 39 out of 100. I note the argument made by Chinese officials of Western media being politicised through government funding such as Radio Free Asia.[17] In considering the Chinese media and government information regarding the situation in Xinjiang I give them less weight due to these assessments. While it could be argued that these assessments are in and of themselves biased, they represent what I assess to be best practice assessments.

    [17] ‘To suppress news of Xinjiang’s gulag, China threatens Uighurs abroad’, The Economist, 24 October 2019, >

    It is clear from the competing accounts of the situation in Xinjiang that there are two issues, firstly, international reporting on abuses such as sexual exploitation, and secondly, different views in balancing the rights outlined in Article 3 of the Universal Declaration of Human Rights, namely the right to ‘life, liberty and security of person’. Shohrat Zakir, the Xinjiang chief of counterterrorism, vocational education and training notes China’s attempt at balancing these, ‘On one hand…the basic human rights of the citizens from the harm of terrorism and extremism. On the other hand, Xinjiang has also stressed addressing the root cause of terrorism,’ by limiting the liberty of individuals, even pre-emptively in some cases.

    It is the view of human rights groups and the governments of the United States and Australia that this attempt at balancing rights is breaching international human rights standards. It is my view that the claim by US Secretary of State Mike Pompeo of Beijing’s treatment of Muslim minorities as ‘the stain of the century’ is not an understatement. While there may be some dispute over aspects such as whether detainees in the re-education camps are allowed to return home on a regular basis,[18] there is no dispute over the basic element—the mass effort to Sinocize a culture including its religion through mechanisms that breach the most basic aspects of international human rights. This effort is not in dispute. China’s president Xi Jinping has stated that all religions must be ‘Chinese-oriented,’ which includes instilling certain values.[19] The way in which this is being accomplished, though, includes, as noted above, limitations on the ability to fulfil the tenets of one’s faith, limitations on movement, arbitrary constraints on one’s liberty and detention.

    [18] BBC News, ‘Inside China’s thought transformation camps,’ 18 June 2019 Cristina Maza, ‘Communist China President Xi Jinping Now wants to control religion too,’ Newsweek, 24 October 2017, >

    In considering the applicant’s particular circumstances I note that his ethnicity as a Uighur who has from a young age faithfully practiced Islam, his extended period abroad including in Australia since 2011, having protested in support of Uighurs in China while living in Australia and not having fulfilled a commitment to spy on the diaspora are pertinent.

    The applicant has lived abroad for an extended period of time, first arriving to Australia [in] October 2011 on a student visa. Although the applicant did not complete his studies and instead applied first for a partner visa and then a protection visa, the country information provided above relating to the forced return of students and their detention I find would suggest that the applicant would be of interest to authorities. Furthermore, I find that the applicant would be detained. Considering the length of time abroad, his activities protesting for the rights of Uighurs in Australia, which I find would be known to the authorities, and his failure to spy on the Uighur diaspora in Australia, would lead to the applicant being treated more harshly than others.

    The information about detention and re-education is that it is lengthy, including potentially extending for years possibly without being charged. It is apparent that those who object or are slow to adapt are harshly punished. The Chinese government’s equating of foreign studies with extremism and separatism adds a further layer of risk. For this reason I find that the applicant would face a real chance of serious harm for reasons of being a member of a particular social group, namely Uighurs who have studied abroad.

    I find that being a member of this particular social group is the essential and significant reason for the real chance of serious harm. I find that the persecution stems from systematic and discriminatory conduct by state authorities. As the government is the persecutor I find that the applicant cannot access state protection and that he cannot relocate.

    I now turn my mind to consider whether the laws are laws of general application. As I have noted above, the laws imposed in Xinjiang are being applied selectively on the basis of geographical locality and ethnicity/religion, and for this reason I find them to be discriminatory. Nevertheless, discriminatory laws do not necessarily amount to persecution.

    It is settled law in Australia that where a law or policy results in discriminatory treatment of persons of a particular race, religion, nationality or political opinion or who are members of a particular social group, the question of whether the discriminatory treatment constitutes persecution for that reason ultimately depends on whether that treatment is ‘appropriate and adapted to achieving some legitimate object of the country [concerned]’.[20]

    [20] Applicant A v MIEA (1997) 190 CLR 225, at 258 per McHugh J; Chen Shi Hai v MIMA (2000) 201 CLR 293 per Gleeson CJ, Gaudron, Gummow and Hayne JJ at [28]; Appellant S395/2002 v MIMA (2003) 216 CLR 473 per McHugh and Kirby JJ at [45]. In Applicant S v MIMA (2004) 217 CLR 387, Gleeson CJ, with Gummow and Kirby JJ held that as a matter of law to be applied in Australia, these criteria are to be taken as settled. See also discussion and general summary of cases in SZDTM v MIAC [2008] FCA 1258 (Dowsett J, 19 August 2008) at [62]

    The 2015 DFAT country report on China notes that ‘The Chinese government has adopted a range of policies to preferentially benefit members of the Uighur community, including preferential access to education and employment and less restrictive limits on family size.’[21]

    [21] Department of Foreign Affairs and Trade, DFAT Country Information Report: China, 3 March 2015 at [3.6]

    But this preferential treatment has been widely debated in China. The below summary is the work of two influential thinkers on this topic, Hu Angang, from Tsinghua University in Beijing, and Hu Lianhe, a Communist Party official:

    [Hu Angang and Hu Lianhe] pointed out that religious and ethno-nationalist impulses played a role in the demise of the Soviet Union — a cautionary tale that the Chinese Communist Party studies obsessively. They called for an “upgrade” of the policies and pointed to a model that they thought China should consider: the United States.

    “The early melting pot policy…was a powerful ‘Anglo-Saxonization’ policy, mainly assimilating other ethnic groups into Anglo-Protestant groups,” they wrote in a paper that traced waves of U.S. immigration from southern Europe and later Latin America. “Although the norms of pluralism have become very strong in recent years, the fact remains that ethnic differences are tending to disappear.”

    The articles sparked controversy in China. But today, they are the most-cited papers on the subject, said Hu Angang. They helped propel Hu Lianhe to become a top official; last year, he defended China’s Xinjiang policy before a United Nations panel in Geneva.

    In an interview and in emails, Hu Angang said his ideas were often misunderstood in the West. He did not espouse forced assimilation, he said, but the wisdom of China’s ethnic policies was proved by data showing the standard of development in Xinjiang and Tibet outstripping neighboring countries stricken by poverty and chaos.

    “Ethnic harmony and social stability are the greatest, most important public good, but invisible and intangible like fresh air.”[22]

    [22] Gerry Shih, ‘”Boiling us down like frogs”: China’s Muslim clampdown creeps into the heartland, finds new targets’, Washington Post, 20 September 2019, >

    I now turn my mind to consider whether the particular treatment the Chinese government applies to Uighurs resident in Xinjiang province is appropriate and adapted to achieving some legitimate object of the country. As I have noted above, the Chinese authorities view their actions as being for a particular purpose, namely weeding out extremists and extremist thoughts while concurrently building a sense of nationhood among the Uighurs of Xinjiang. These are legitimate objects. The Australian government enforces the teaching of Australian history and laws along with the English language to children and offers such opportunities to migrants. The question is whether the treatment is appropriate and adapted. This involves consideration of the proportionality of the means used to achieve that object: Applicant S v MIMA (2004) 217 CLR 387 at [44], [48]. In MZQAP v MIMIA [2005] FCAFC 35 (Branson, Marshall and Hely JJ, 15 March 2005), the Full Federal Court held the test of ‘appropriate and adapted’ involves the nature and reach of the law itself and the actual manner of its application.

    Considering that estimates of one million people are in re-education camps, that nearly a million cadres have been involved in ‘homestays’ to watch the most intimate aspects of Uighur lives, the use of pre-emptive detention and the punishment for straying from the government’s preferred behaviour on matters such as religion or expressions of ethnicity, the inability to constrain extra-judicial actions while in detention including rape and physical abuse, leads me to conclude that the actions are not appropriate and adapted to achieve the legitimate object.

    For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

    DECISION

    The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

    Denis Dragovic
    Senior Member