1814277 (Refugee)
[2019] AATA 6827
•31 October 2019
1814277 (Refugee) [2019] AATA 6827 (31 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1814277
COUNTRY OF REFERENCE: China
MEMBER:Denis Dragovic
DATE:31 October 2019
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii)that the other applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Statement made on 31 October 2019 at 11:17am
CATCHWORDS
REFUGEE – protection visa – China – Federal Court remittal – religion – ethnic Uighur – particular social group – studied abroad – involvement in protests – practices Islam – threat of detention and re-education – extended period stay in Australia – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 36, 65, 499
Migration Regulations 1994 (Cth), r 1.12; Schedule 2CASES
Applicant S v MIMA (2004) 217 CLR 387
MZQAP v MIMIA [2005] FCAFC 35Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of China, applied for the visas on 25 June 2014 and the delegate refused to grant the visas on 17 February 2016.
The Tribunal viewed a copy of the first named applicant’s passport and accepts that she is a citizen of China.
Regarding the second named applicant, I note that China’s Nationality Law states any person born to a Chinese national parent is a Chinese national at birth (Article 5).[1] I note that the applicants provided to the Department a copy of a [State 1] Birth Certificate (date of birth [date]) which records that the second named applicant was born in [State 1] and records the first named applicant and her husband as the child’s parents. I accept that the second named applicant is the child of the first named applicant. Therefore the Tribunal finds that the applicant’s son though born in Australia is a son of Chinese nationals and therefore is a Chinese national born abroad.
[1] China:, Nationality Law of the People's Republic of China - China Law No. 71, 10 September 1980, [accessed 29 October 2019]
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 feared arising from her religion.
The applicants appeared before the Tribunal on 22 October 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Uyghur and English languages.
The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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).
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.
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’).
In accordance with Ministerial Direction No.56, 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include:
a child or step‑child of the family head or of a spouse or de facto partner of the family head (other than a child or step‑child who is engaged to be married or has a spouse or de facto partner) and:
(i) has not turned 18; or
(ii) has turned 18, but has not turned 23, and is dependent on the family head or on the spouse or de facto partner of the family head; or
(iii) has turned 23 and is under paragraph 1.05A(1)(b) dependent on the family head or on the spouse or de facto partner of the family head; or
The issue in this case is whether Australia’s protection obligations arise under subsections 36(2)(a) or (aa). For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Evidence and Findings of Fact
The first named applicant (“the applicant”) claims that she is an ethnic Uigher who practices Islam. She claims that she is a resident of Urumqi City in Xinjiang Uighur Autonomous Region. The applicant arrived to Australia on a visitor visa in [May] 2014 and has not departed since. Prior to her arrival in Australia the applicant was undertaking [studies] in [Country 1]. The applicant claims to have participated in 4-5 protests in support of the Uighars in China while in Australia. The applicant claims that she has not had contact with her family since mid-2017 stating that they have deleted her from her social media and don’t answer the phone when she calls. I accept these claims pertaining to the applicant’s background and current circumstances.
In considering the applicant’s case it is important to review the current circumstances of ethnic Uighers who live in China’s Xingjiang Uighur Autonomous Region in detail.
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.[2]
[2] Department of Foreign Affairs, ‘DFAT Country Information Report: China’ 3 October 2019
Amnesty International[3] 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 5 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.
[3]
Human Rights Watch reports that credible estimates indicate 1 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.[4]
[4] 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.[5]
[5] Testimony of Deputy Assistant Secretary Scott Busby Senate Foreign Relations CommitteeThere have been reports of children being involuntarily separated from families and placed into state run orphanages[6], 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, restrictions on the practice of peoples’ faith, and being forced to drink alcohol and eat pork[7], families are forced to accept strangers to stay in their homes through a massive campaign involving hundreds of thousands of Communist Party cadres to monitor Uighar activities,[8] some are being arrested for praying,[9] Uighers under 40 years of age are pre-emptively being targeted for re-education because of a presumption that they are susceptible to extreme thoughts[10] and there are reports of new ‘offences’ including travelling abroad, having relatives in foreign countries and wearing headscarves.[11]
[6] Human Rights Watch, ‘China: Xinjiang Children Separated from Families’, 15 September 2019
[7] Testimony of Deputy Assistant Secretary Scott Busby Senate Foreign Relations Committee[8] 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
[11] ibid
The surveillance app which some ethnic Uighar 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.
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 governments’ 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]
[15] Human Rights Watch, China’s Algorithms of Repression: Reverse Engineering a Xinjiang Police Mass Surveillance App, 1 May 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. 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 of themselves biased, they represent what I assess to be best practice assessments.
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. 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,[16] there is no dispute over the basic element—the mass effort to Sinocize a culture including its religion. China’s president Xi Jinping has stated that all religions must be ‘Chinese-oriented,’ which includes instilling certain values.[17] The way in which this is being accomplished 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.
[16] 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 her ethnicity as a Uigher who practices Islam, her extended period abroad including in Australia since 2014 and having protested in support of Uighars in China are pertinent.
While there are limitations being placed on the practice of Islam in Xinjiang the country information available suggests that those limitations are not directly pertinent to the applicant. For example, the wearing of a burka is prohibited. The applicant does not wear a burka. The architectural designs of mosques are being changed to move away from Arab features and to adopt Chinese features.[18] This architectural re-design would not limit her ability to fulfil the tenets of her faith although the bulldozing of some may limit her ability to attend to public prayers.[19] I find that she would face a limitation on her ability to practice her faith, but this limitation including not wearing a burka, would not in of itself amount to serious or significant harm.
[18] This is a tactic used in other provinces: Rachel Harris, ‘Bulldozing mosques: the latest tactic in China’s war against Uighur culture’, 8 April 2019 >
As a Uighar living in the capital Urumqi the applicant may be required to install an app which would analyse her movement and assess her level of risk to the state. This imposition would be for reasons of race but I find that in of itself the analysis of individuals alone (as opposed to the actioning of the results from the analysis), even to the excessive levels adopted in Xinjiang, would not amount to serious or significant harm.
The applicant has lived abroad for extended periods of time including 4.5 years in [Country 1] studying a [course] and since 2014 in Australia. Country information provided above specifically related to the forced return of students and their detention would suggest that the applicant would be of interest to authorities. I find that the applicant would be detained. Considering the length of time abroad and her activities protesting for the rights of Uighars in Australia, which I find would be known to the authorities, the applicant would likely be treated more harshly than other returning students.
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 government equating 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 Uighars 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 she 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 Xingjiang are being applied selectively on the basis of geographical locality and ethnicity/religion, 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 of 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 Uighars 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 Uighars 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 the consideration of 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 Uighar’s 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 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 each of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants satisfy the criterion set out in s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii) that the other applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Denis Dragovic
Senior Member
Subcommittee On East Asia, The Pacific, And International Cybersecurity Policy December 4, 2018 On East Asia, The Pacific, And International Cybersecurity Policy December 4, 2018Key Legal Topics
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