1833803 (Refugee)

1833803 (Refugee) [2023] AATA 4643 (5 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Kenneth K H Gee (MARN: 0215276)
CASE NUMBER: 1833803

COUNTRY OF REFERENCE: China
MEMBER:Dr Greg Weeks
DATE:5 December 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 05 December 2023 at 12:18pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Christian – detention – physical assault – punishment for church attendance – exit procedures – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs (delegate) on 15 November 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of China, applied for the visa on 10 August 2017. The delegate refused to grant the visa on the basis that they were not satisfied that applicant is a genuine and practising Christian, that he attended church in China, that he was arrested and imprisoned by police for his religious activities, or that he will face harm of any kind for reason of his religion on return to the People’s Republic of China.
The applicant was invited to an interview with a delegate which was scheduled for 15 November 2018. He did not attend that interview. The delegate made their decision based only on the applicant’s written application for a protection visa.
The Tribunal sent the applicant a Pre-hearing Information form by email to the applicant’s authorised recipient dated 26 July 2023. The authorised recipient requested, and was granted, an extension of time to respond because she had not been able to contact the applicant. The applicant subsequently appointed a new representative and authorised recipient by a form dated 5 August 2023.
The applicant returned the Pre-hearing Information form, signed and dated 11 August 2023, in which he indicated that he did not wish to attend a hearing and consented to the Tribunal making a decision on the papers. He further indicated that he had no additional information to provide about his claims for protection.
The applicant provided no additional information to the Tribunal. Consequently, I have reached a decision on this application with regard only to the information that was before the delegate.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (Department), and country information assessments 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether there is a real chance that the applicant will face persecution in China or a real risk that he will suffer significant harm if removed from Australia to China. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Evidence in the application for a Protection Visa
The applicant provided the Department a certified copy of his passport issued by the People’s Republic of China, a copy of which has been provided to the Tribunal. I accept on this information that the applicant is a national of China.
The Tribunal has been provided with a copy of the protection visa application form completed by the applicant and dated 7 August 2017. In that document, the applicant states that he has never been married and lists no other family members. The form further states that the applicant was born in Chengdu in Sichuan province in China, that he resided at the same address in Chengdu from the month of his birth until leaving China, and that he held the same job as [an occupation 1] for [a specified] company from the time that he completed school until leaving China.
Claims
In his application for a protection visa, the applicant claimed that:
·     he is a Christian who was subjected to violence and mistreatment from the police for attending church;
·     he was arrested and taken to prison because he had been seen in church;
·     his home was broken into and searched by the police, who destroyed many of the applicant’s possessions while searching (unsuccessfully) for Christian materials;
·     the prison guards hit the applicant on his body (hurting his legs and stomach) with batons because of his Christian religion but did not harm many other inmates;
·     the prison guards would wake him in the night and take him to another part of the prison to beat him so that their conduct would not be witnessed; and
·     he did not know why he had been imprisoned except that it was because of his Christian religion.
The applicant claimed that, were he returned to China, he would face arrest and harm from the police, would be hurt by prison guards due to his Christian religion and that this violent conduct would not stop. He claimed that he hid at home as much as he could because he feared arrest and imprisonment at any time if he brought attention to himself. The applicant claimed that he had sought help from the police upon his release from prison but that they would not help him once they learned that he was a Christian. He claims to fear that the police want to hurt him and that, if he asks for their help, they will return him to prison where he will face further physical harm.
The applicant stated in his protection visa application that he has no money to move away from Chengdu and that he is scared that engaging with the government to arrange relocation will only expose him to further harm.
Consideration
I have considered the applicant’s written claims and the supporting material provided to the Department as part of the applicant’s protection visa application. Because the applicant provided no information at all to the Tribunal, this is the entirety of the information before me.
The applicant’s claims do not specify the dates on which any of the events described in his claims occurred.
The applicant has stated that he is a Christian but has provided no information about how he practiced his Christian religion, which church he attended or with whom he practiced his religion in China. Protestants in China can only officially worship in a church registered with the Three-Self Patriotic Movement (TSPM). The Chinese Catholic Patriotic Association (CCPA) is the equivalent organisation representing the official Chinese Catholic Church. There is no information before the Tribunal as to whether the applicant’s church was registered with an officially sanctioned church organisation like the TSPM or CCPA.
There is also no information before the Tribunal as to whether the applicant or others within his church engaged in political activity or proselytising, whether the applicant had a leadership or otherwise visible role within his church, or whether the applicant’s church itself or others who worshipped there were subject to violent treatment or police searches.
I am not satisfied on the information before me that the applicant is a Christian. I am not satisfied that he attended a Christian church in China.
It follows that I am not satisfied that the applicant’s Christianity or attendance at church was the reason that he was subjected to violence and mistreatment from the police, or was the reason that he was arrested and taken to prison, or was the reason that his home was broken into and searched by the police, or was the reason that prison guards assaulted the applicant while he was in custody.
The applicant’s application for a protection visa stated that he had travelled outside of China in the 30 years before he came to Australia. No details of this travel were provided, the applicant including only the notation “will provide later”.
It is almost impossible to leave China without the knowledge and approval of the authorities. The government employs multiple systems to prevent unauthorised departures, including artificial intelligence, facial recognition software and biometric databases. An exit control list is created from these sources and a wide variety of government authorities which also contributes data. It is very difficult to forge the identification documents (passports and national identity cards) necessary to exit China.[1] DFAT reports that it is also difficult to bribe border protection agents, who are a professional and comparatively well-paid sector of the public security infrastructure,[2] operating within a country that has become increasingly sensitive to official corruption.[3] In addition, increased reliance on technology and algorithms means that human officials do not make all of the decisions which affect people attempting to leave China.
[1] DFAT, ‘Country Information Report: People’s Republic of China’ (22 December 2021), [5.35]-[5.42].
[2] DFAT, ‘Country Information Report: People’s Republic of China’ (22 December 2021), [5.35].
[3] DFAT, ‘Country Information Report: People’s Republic of China’ (22 December 2021), [2.23].
Exiting China is heavily regulated, in at least three ways.[4] First, China places significant restrictions on legally obtaining a passport. This affects the capacity of persons who have been arrested for, or suspected of, criminal conduct or have served a prison sentence to obtain a passport.
[4] Lili Song, “Exit regulation in the People’s Republic of China: Law, policy and practice” (2022) International Migration (doi: 10.1111/imig.13058), 2.
Secondly, there are extensive grounds upon which Chinese and foreign passport holders may be prohibited from exiting China. Chinese citizens who have been granted a passport may nonetheless be placed on an exit control list and prevented from leaving the country on national security grounds. In practice, exit bans are imposed simply by one or more of a wide range of government authorities (from local to national) recording a person’s details in the border control database; individuals typically only learn that a restriction is in place upon being prevented from leaving China by the border control authority.[5] DFAT has recorded that exit bans are also used against family members of individuals under investigation, even where those individuals live outside China.[6]
[5] Lili Song, “Exit regulation in the People’s Republic of China: Law, policy and practice” (2022) International Migration (doi: 10.1111/imig.13058), 8.
[6] DFAT, ‘Country Information Report: People’s Republic of China’ (22 December 2021), [5.32]-[5.33].
Thirdly, unauthorised departure, without holding a valid passport, is criminalised; the relevant law (article 322 of the Criminal Law) has been invoked to seek the extradition of people whose refugee status has been recognised.[7] China has a massive and sophisticated security infrastructure. Safeguards within China against the use of fraudulent passports are highly effective.
[7] Lili Song, “Exit regulation in the People’s Republic of China: Law, policy and practice” (2022) International Migration (doi: 10.1111/imig.13058), 9.
The applicant obtained a passport in his own name which was issued by the MPS Exit and Enty Administration in Sichuan on [a specified day in] 2014. There is no information before the Tribunal to indicate whether the applicant held a passport prior to [this date] or if he had travelled abroad before that date.
The applicant’s passport includes entry and exit stamps, including one dated [in] May 2017, which is the date that the applicant left China to fly to Australia. The applicant’s passport also includes stamps which indicate that he travelled in or out of China [in] May 2015 and [in] October 2016 and a stamp applied by [Country 1] Immigration authorities [in] May 2015 which states that the bearer may remain in [Country 1] for a social visit for fourteen days from his arrival. There is no information before the Tribunal which allows me to compare the dates of the applicant’s trips outside of China with the date of the applicant’s arrest and incarceration.
The applicant left China to travel to Australia after he had been arrested and had spent time in prison. He travelled using the passport issued to him by the MPS Exit and Enty Administration [in] 2014. These facts are potentially inconsistent with the country information that China places stringent exit restrictions on persons of interest to the authorities. The applicant’s claims that he was targeted by the police and prison guards are difficult to reconcile with the fact that he was able to fly out of China on a passport in his own name. That point would attract even greater weight if the applicant’s other trips out of China had been made after his arrest and incarceration.
I am not satisfied that there is a real chance that the applicant will suffer persecution on return to China for any reason raised in his claims.
The applicant has claimed that he was subjected to punishment that could be described as cruel or degrading and might therefore amount to significant harm. Given that I am not satisfied that the applicant endured this punishment as a result of his Christian faith and there is no information before the Tribunal to indicate why that punishment was inflicted upon him, I am not satisfied that significant harm is a foreseeable consequence of the applicant’s removal from Australia.
I am not satisfied that there is a real risk that the applicant will suffer significant harm on return to China.
Conclusions
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Dr Greg Weeks
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 4643

5 December 2023

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

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